Kelly v. Rhodes, 212-78
| Decision Date | 03 November 1978 |
| Docket Number | No. 212-78,212-78 |
| Citation | 136 Vt. 534,396 A.2d 130 |
| Parties | Byron KELLY v. Wilmer D. and Dorothea E. RHODES. |
| Court | Vermont Supreme Court |
Thomas P. Wright, Woodstock, for plaintiff.
Martin Nitka, Ludlow, for defendant.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
This is an action seeking injunctive relief with respect to certain water rights. Although the relief sought was equitable in nature, the assistant judges participated in the proceedings and signed the order. Since there was no showing that the order was not fully concurred in by the presiding judge, the participation of the assistant judges will be treated as surplusage. V.R.C.P. 83.
The dispute is a narrow one. The plaintiff obtains water for the house he owns from a pipe attached to a water system in the basement of the defendants' home. The water system originates at a spring from which water is piped into defendants' cellar. From there it is pumped into a water line that serves both the plaintiff and premises owned by one Hicks.
Under the chain of conveyances relevant to water rights, the obligation of the defendants is set out by deed in the following language.
The herein grantors covenant and agree to furnish the herein grantee, for whatever uses and purposes the herein grantee chooses, water from their water system of sufficient volume to be carried by a 1/2 pipe.
The herein grantee agrees to pay for such water the annual rental of $18.00.
This language, appearing in a previous deed, has been preserved by reference in subsequent deeds. There is no dispute but that the annual rental has been paid. More importantly, according to the findings, the defendants concede an obligation to provide water to the plaintiff from their supply sufficient to be carried by a 1/2 pipe.
The dispute arose when the defendants advised that they were going to discontinue furnishing the water by means of an electric pump. The plaintiff contends that the duty to "furnish" water, in this instance, based on the practice persisting for more than eight years, included an obligation to continue to pump water to the plaintiff's property in the manner of the past. On that basis he sought injunctive relief.
By stipulation, the parties enlarged the relief sought by the various pleadings. They joined in asking the court to construe the rights and obligations of the parties with respect to the water, including whether or not the defendants had a duty to pump water to the plaintiff and, if not, the measure of the right of the plaintiff to take water from the defendants' system and the manner and maintenance of such taking. This gave the litigation characteristics...
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...Insurance Co. v. Blanchard, 139 Vt. 559, 433 A.2d 296 (1981); Nugent v. Shambor, 138 Vt. 194, 413 A.2d 1210 (1980); Kelly v. Rhodes, 136 Vt. 534, 396 A.2d 130 (1978); Villeneuve v. Bovat, 128 Vt. 345, 262 A.2d 925 (1970). These cases have found either that the participation of the assistant......
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