Lake Seymour, In re
| Decision Date | 07 October 1952 |
| Docket Number | No. 946,946 |
| Citation | 91 A.2d 813,117 Vt. 367 |
| Parties | In re LAKE SEYMOUR. |
| Court | Vermont Supreme Court |
Hubert S. Pierce, Newport, Milton S. Gould, New York City, for petitioner.
Clifton G. Parker, Atty. Gen., for the State.
Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.
This cause is here on exceptions of Citizens Utilities Company to findings of fact and a certificate of the Public Service Commission establishing the natural minimum and maximum water levels of Lake Seymour.
Section 1 of No. 197 of the Acts of 1951 reads as follows:
Section 2 provides that the waters of the lake shall not be raised or lowered, artificially, or permitted through neglect to become lower or higher than the levels so established.
Section 3 provides that a person, firm or corporation who violates a provision of this act shall be punished in accordance with the provisions of V.S. 47, § 9406.
The commission heard the matter at Newport on August 21 and 22, 1951 and inspected the lake on August 27. After taking testimony and on 'personal observations by this commission of the dam, lake and physical markings' findings of fact and certificate were filed by the commission on September 15, 1951.
The commission finds that Lake Seymour, located principally in the town of Morgan but with its outlet in the town of Charleston, has a normal surface area of approximately 1732 acres; that it is boatable water, and that the water therefrom flows into Echo Lake and from Echo Lake into the Clyde River.
Findings 4 to 13 inclusive read as follows '4. That a dam with gates was erected at the outlet of Lake Seymour in 1921 by a predecessor company of Citizens Utilities Company; that portions of said dam still remain but have no effect on the present flow of water.
'5. That a dam fitted with gates now owned by Citizens Utilities Company was constructed and has been maintain on the outlet stream of Lake Seymour since 1928 and said dam controls the level of said Lake Seymour. Said dam is approximately 1200 feet downstream from the outlet.
'6. That at times, up until 1939, Citizens Utilities Company or its predecessors in ownership maintained 12 inch flashboards on the present dam.
By the provisions of Section 1 of No. 197 of the Acts of 1951 the duty is placed on the Public Service Commission to 'ascertain * * * the natural maximum and minimum water levels of Lake Seymour'. What did the Legislature mean by using the term 'natural'?
In discussing the meaning of this word 'natural' the Supreme Court of Michigan in In re Petition of Lenawee County, 276 Mich. 591, 594, 268 N.W. 750, 751, says:
'Counsel for appellant cite the definition of the term 'natural' as given in Webster's New International dictionary (ad. Ed.) to be 'in accordance with or determined by nature; characteristic of the physical world.' An examination of this citation discloses that, following the above-quoted definition, Webster also uses the word 'normal' in defining this term. We have heretofore so construed it to mean 'normal'.'
In Kennedy v. Van Buren Drain. Comm., 189 Mich. 676, 679, 155 N.W. 733, 734, the court holds that the phrase 'natural water level' means 'normal water level.'
In Dorman v. Ames and George, 12 Minn. 451, 464, the Court says:
'The natural state of the stream is that in which the stream is under the ordinary operation of the physical laws which affect it; this may be different at different seasons of the year, and yet be ordinary by the recurrence of the same condition about the same season of the year; it may ordinarily, be high a portion of the season, and low at another portion and at another at a medium stage, yet as these are ordinary by reason of their annual or frequent occurrence, so that a variance therefrom is an exception, they are the natural condition of the stream.'
In 56 Am.Jur. 512, § 19, the rule is laid down that the natural state of a stream is the condition of the stream under the physical laws which affect it. This may be different at different seasons of the year and yet be ordinary by the recurrence of the same condition about the same season of the year.
In McBurney v. Young, 67 Vt. 574, 579, 32 A. 492, 493, 29 L.R.A. 539, this Court says:
'We think that upon reason and authority low-water mark, as a terminus of boundary, must be held to mean ordinary low-water mark.'
In view of the foregoing we hold that the term 'natural' means 'normal' and that it was the duty of the commission to find what are the normal maximum and minimum levels of Lake Seymour.
Citizens excepted to findings, 7, 8, 9, 10, 11 and 13. As the exceptions to findings 7, 8, 9 and 10 are not briefed, these exceptions are waived. O'Connor v. Vermont Transit Co. Inc., 116 Vt. 6, 8, 68 A.2d 699; Little v. Loud, 112 Vt. 299, 301, 23 A.2d 628.
Citizens briefs its exceptions to findings 11 and 13. Finding 11 reads as follows:
'That said blasting has affected the natural maximum and minimum levels of Lake Seymour by widening and lower (ing) the channel.'
The grounds of the exception are that the commission has failed to find to what extent such blasting has affected said water levels and that the finding as made is incompetent and inconclusive as a finding upon which a determination of the natural maximum and minimum level of said lake can be made.
In its brief Citizens states 'that there was blasting in the channel is not disputed and that such blasting may have affected the width and depth of the channel is likewise not disputed.'
The commission finds in its 10th finding that prior to the erection of the present dam in 1928, there was stillwater above the Big Rock. Obviously, the then existing condition of the channel acted as a barrier to the flow of water from Lake Seymour. The reason for the removal of this barrier was to increase the flow of water from the lake and to permit it to get to the dam faster and these results were accomplished by the clearing of the channel.
It is obvious that when obstructions are removed from a stream which drains any body of water the draw down will be accelerated and increased resulting in a lowering of both maximum and minimum levels. There is ample evidence to sustain the commission's finding. It was not incombent on the commission to report the extent of this draw down in its determination of the natural levels as these levels existed prior to such changes. The exception is not sustained.
Finding 13 reads as follows: 'That the natural minimum level of Lake Seymour at its outlet, disregarding the effect of the dams and blasting is 8 inches below the crest of the present dam.'
The grounds of this exception are that it is contrary to the evidence and to the weight of the evidence, has disregarded the natural barrier at the outlet of the lake which controls the minimum depth to which said lake can be lowered and that the finding is based wholly on inconclusive memories of witnesses who had no occasion to determine low water mark of said lake or any occasion to effectively recall what was in fact the minimum low water mark of said lake prior to 1921 when the first dam was installed.
A study of the evidence discloses that the commission could find that at the time of the hearing the level of Lake Seymour was at its normal elevation for the season of the year; that this level was approximately one-half of an inch over the crest of the present dam; that there was a variation of approximately 14 inches from high water to low water.
Finding 12, to which no exception is taken, finds that the maximum water level of the lake is 6 inches above the crest of the present dam.
Ray Vinton who had summered at the lake since 1924 and who had known the lake for 55 years testified that there was a 14 inch fluctuation in the level of the lake.
Erastus L. Dutton, who had resided near the lake for 65 years and who had observed its rise and fall, testified that the level would fall 6 to 7 inches...
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