Lawrie v. Sillsby

• Decision Date: 25 October 1909
• Citation: 82 Vt. 505,74 A. 94
• Parties: LAWRIE et al. v. SILLSBY et al.
• Court: Vermont Supreme Court

74 A. 94

82 Vt. 505

LAWRIE et al.

v. SILLSBY et al.

Supreme Court of Vermont. Orange.

Oct. 25, 1909.

Appeal in Chancery, Orange County; George M. Powers, Chancellor.

Suit by James P. Lawrie and others against W. H. Sillsby and others. There was a decree for the orators after a hearing on the pleadings, the master's report, and exceptions thereto, and defendants appeal. Reversed and remanded.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, HASELTON, and POWERS, JJ.

Smith & Smith, for appellants. Dunnett & Slack and R. M. Harvey, for appellees.

POWERS, J. It having been held that the orators could maintain this bill if the defendants had infringed their rights by an unreasonable use of the water of the stream, and that the question of reasonable use was one of fact (Lawrie et al. v. Silsby et al., 70 Vt. 240, 56 Atl. 1106, 104 Am. St. Rep. 927), the cause was remanded with a mandate to the court of chancery to recommit the report to the master "to find and report whether the defendants' use of the water is a reasonable use; and, if not, in what respects it is unreasonable, and whether such use can be remedied in any way and what way; also, to find and report whether the water in the pond has improved in quality to any and what extent since the last hearing before the master, and what the prospect is of its ultimate purification and when, and whether the orators have sustained any and how much damage since said hearing." Pursuant to this mandate, a further hearing has been had before the master, and a supplemental report filed, to which the defendants filed exceptions. Thereupon a pro forma decree was made overruling the exceptions to the report, granting a perpetual injunction against maintaining any dam across the stream in question which should prevent the natural flow of the water through the orators' aqueduct or contaminate it, and awarding the orators damages. From this decree the defendants appeal.

In the supplemental report it is found that the defendants' use of the water is unreasonable. This finding, the master states, is predicated upon certain facts set forth in the report and by the master designated "a," "b," "c," and "d." The further paragraphs of the report are designated "e," "f," and "g," but it is plain that they were not intended to be statements of facts on which the main finding was based, but statements of further facts called for by the mandate or requested by counsel, and they are mainly important in the consideration of the main finding by showing that the master had in mind the facts therein recited.

Under the exceptions to the report, it is urged by the defendants that the finding on the question of reasonable use cannot stand because some or all of the specified facts on which it is based do not support it. This depends upon whether the facts referred to are pertinent to the inquiry. If they are, we cannot disturb the finding. If they or any of them are not, the finding cannot stand, for the master may have most relied upon the impertinent fact or facts in reaching his conclusion. But it is not necessary that each of these facts, standing alone, should be sufficient to support the finding of unreasonable use. It is enough if each is pertinent, and all sufficient, "(a) The stream is so small that the amount of water flowing in it during certain seasons of the year is barely sufficient, under the best conditions, to supply the natural wants of the users thereof as described in the original report." The master evidently uses the term "natural wants" understandingly—uses it to designate those commonly spoken of as "domestic," which include those necessary to the support of the riparian proprietor, his family, and his beasts. This is the language of the books. It is the language of this court in disposing of this case when it was here before. 76 Vt. 252, 56 Atl. 1106, 104 Am. St. Rep. 927. But the defendants say that these natural wants must yield to the reasonable use of the upper proprietors. Perhaps so. But, in determining whether the use of the upper proprietor is reasonable, the size and character of the stream, and the use to which it is subservient, are pertinent and important considerations. This is elementary. The defendants' interpretation of this subfinding—that it means that the defendants' use is unreasonable merely because it affects the orators' natural wants—is unwarranted. All that it means by any fair interpretation is that the defendants' use is unreasonable because for one reason, the stream is so small that at times it furnishes barely enough water for the orators' domestic uses.

"(b) The use to which the water is put by the defendants is artificial, and by impounding it as before reported the increased loss by evaporation is such that the same volume of water does not enter the Lawrie lot that would otherwise find its way there." Here, again, the master is using the language of the books, and the defendants' use of the...