Lawrie v. Silsby

• Decision Date: 13 February 1904
• Citation: Lawrie v. Silsby, 76 Vt. 240, 56 A. 1106 (Vt. 1904)
• Parties: JAMES B. LAWRIE, ET AL. v. W. H. SILSBY, ET AL
• Court: Vermont Supreme Court

56 A. 1106

76 Vt. 240

JAMES B. LAWRIE, ET AL. v. W. H. SILSBY, ET AL

Supreme Court of Vermont

February 13, 1904

October Term, 1903.

APPEAL IN CHANCERY, Washington County. Heard at Chambers on bill answer, master's report, and exceptions thereto. Start Chancellor. Decree, pro forma for the orators. The defendants appealed.

Reversed and remanded with mandate.

Smith & Smith for the orators.

Present ROWELL, C. J., TYLER, MUNSON, STAFFORD, and HASELTON, JJ.

OPINION

ROWELL

The orators, who take water by a pipe from a brook on what is called the Lawrie lot, and conduct it to their several nonriparian farms and buildings for domestic and farm uses, have not thereby acquired a prescriptive right to do so as against the defendants, who own the riparian land next above the Lawrie lot, called the Hale lot, though the water has been taken long enough in point of time, for the law of this State is, as well as of many if not most of the other states, and of England, that the presumption of a grant from long-continued enjoyment arises only where the person against whom the right is claimed could have lawfully interrupted or prevented the exercise of the subject of the supposed grant. Shumway v. Simons, 1 Vt. 53; Norton v. Volentine, 14 Vt. 239; Hoy v. Sterrett, 2 Watts. 327, 27 Am. Dec 313; Holsman v. Boiling Spring Bleaching Co., 14 N.J.Eq. 335; Vliet v. Sherwood, 35 Wis. 229; Nelson v. Butterfield, 21 Me. 220; 28 Am. & Eng. Ency. Law, 1st ed. 1005; Stockport Waterworks Co. v. Potter, 3 H. & C. 300, 325; Chasemore v. Richards, 7 H. L. 349, 370; Webb v. Bird, 13 C. B. N. S. 841; Sturges v. Bridgman, 11 Ch. D. at page 855.

Here, neither the defendants nor their predecessors in title could lawfully have interrupted nor prevented the taking of the water, as it does not appear that it infringed their rights.

Murchie v. Gates, 78 Me. 300, 4 A. 698, and Holker v. Porritt, L. R. 8 Exch. 107, and L. R. 10 Exch. 59, on which the orators rely to support their claim of a prescriptive right, are not in point, for there natural streams had been divided so that part of the water flowed in artificial channels, and the law of natural watercourses was applied to the artificial channels, and the plaintiffs were regarded as riparian proprietors the same as though they abutted on the natural branch of the stream; though in the Exchequer Chamber the judgment in Holker v. Porritt was affirmed on different ground.

The orators, therefore, having no prescriptive right against the defendants, must stand on whatever other rights they have against them. The orator, James B. Lawrie, owns the Lawrie lot, and has ever since 1870, and must stand on his right as such owner. The defendants do not question the right of the other orators as against Lawrie to take the water as they do, but they say nothing as to the legal quality of the right, and the orators claim that in the circumstances it will be presumed to rest in grant, and we are inclined to think that this is the true view of the matter. It appears from the report that prior to the year 1854, the then owners of the orators' farms and buildings, one of whom was H. N. Chamberlin, the then owner of the Lawrie lot and of the said Lawrie's farm, joined together in laying the aqueduct in question, and thereby took water from the brook to their respective farms and buildings for domestic and farm uses, and shared in the expense and ownership of said aqueduct; that said farms and buildings were thus supplied with water until the year 1854, when the owners of said aqueduct, wishing to have their rights therein better defined and understood, and better enforceable among themselves, their heirs and assigns, adopted written articles, purporting to be under ch. 85 of the Comp. Sts., whereby they undertook to form themselves into a corporation under the name of the Ox Bow Aqueduct Company, for the purpose of bringing water by aqueduct from the hill westerly of the "Ox Bow" where most convenient, each agreeing to pay his proportion of the expense, and the cost of keeping in repair to the point where each took the water from the main branch, each putting in and maintaining his own branch, and whereby the number of shares that each, or his assigns, should be entitled to, was fixed, and subjected to assessment from time to time for building and repairing the aqueduct. And water has ever since been, and still is, taken from said brook by means of said aqueduct, to the farms and buildings of the orators for the purposes and uses aforesaid.

Although it appears clearly enough that water was thus taken in the first instance by license of Chamberlin, the then owner of the Lawrie lot, yet it appears with equal clearness that that license was unlimited in point of time, and so understood by all the parties thereto, and that the water has been taken and used for all these forty years and more under a claim of right. This being so, the fact that the use began by permission did not prevent the acquisition of a prescriptive right to take as against the owners of the Lawrie lot. Arbuckle v. Ward, 29 Vt. 43; Blaine v. Ray, 61 Vt. 566, 18 A. 189.

But is this prescriptive right sufficient to enable the orators, other than Lawrie, to maintain this bill in their own names? It is not, unless a grant to them from an owner of the Lawrie lot would be sufficient, for they can prescribe for no more than he could grant, as prescription is based upon a supposed grant. This raises the question whether a nonriparian grantee of a riparian proprietor, of a right to take water from the stream for nonriparian use, can maintain an action in his own name against an upper riparian proprietor for polluting the water of the stream to his damage. It has been expressly held in England that he cannot; that though the grant is good against the grantor, it does not enable the grantee to sue in his own name a riparian proprietor other than his grantor for interfering with his right. This is put upon the ground that the rights of a riparian proprietor in respect to the water are derived entirely from his possession of land abutting on the stream, and are so annexed to the soil that they cannot be granted away apart from the land as far as other riparian proprietors are concerned. Stockport Waterworks Co. v. Potter, 3 H. & C. 300; Ormerod v. Todmorton Mill Co., L. R. 11 QB 155 Cf.; Kensit v. Great Eastern Railway Co., 27 Ch. 122. In Nuttall v. Bracewell, L. R. 2 Exch. 1, it was held that the plaintiff was a riparian proprietor in respect of a goit; but Pollock, C. B., and Channell, B., adhered to the ground of their judgment in the Stockport Waterworks case, and said that if a riparian proprietor is bound to abstain from interfering with nonriparian grantees of riparian proprietors, as well as from interfering with riparian proprietors themselves, it would well nigh destroy his rights altogether, for that can hardly be called a right that is subject to an indefinite restriction, unascertained and practically unascertainable. They considered that the rights of a riparian proprietor with respect to the stream are limited only by the rights of persons in a similar or an analogous position with themselves. The Master of the Rolls said in Ormerod v. The Todmorden Mill Co., that though the law of flowing water is a part of the common law of England, it exists only as among riparian proprietors, and does not extend to those whose lands do not abut on streams and rivers.

But in this country it is held in some jurisdictions that an incorporeal right to water may be granted in gross or made appurtenant to other land, and that the grantee may sue in his own name for a disturbance of his right. Thus, in St Anthony Falls Water Power Co. v. The City of Minneapolis, 41 Minn. 270, 43 N.W. 56, a riparian owner of part of an island in the Mississippi River just above the Falls, sold other land of his not bordering on the river, and with it granted a right to take water from the river for use thereon, which the grantees did by means of a canal, and the defendant succeeded to their rights. It was objected that as the city had no land abutting on the river, it was not a riparian owner, and had no riparian rights. But the court said it was entirely immaterial whether the defendant's rights were riparian or conventional; that it had rights, for the disturbance of which it had a right of action; that it was unimportant whether it was held that the provision in the grantor's deed in regard to a canal amounted to a division of the river into...