Randall v. Clifford

• Decision Date: 01 May 1956
• Docket Number: No. 252,252
• Citation: 122 A.2d 833,119 Vt. 216
• Parties: Clinton H. RANDALL and Doris M. Randall v. Walter CLIFFORD.
• Court: Vermont Supreme Court

Page 833

122 A.2d 833

119 Vt. 216

Clinton H. RANDALL and Doris M. Randall v. Walter CLIFFORD.

No. 252.

Supreme Court of Vermont.

May 1, 1956.

Lee E. Emerson, Barton, for plaintiffs.

Reginald B. McShane, Lyndonville, for defendant.

Before JEFFORDS, C. J., and CLEARY, ADAMS, CHASE and HULBURD, JJ.

HULBURD, Justice.

This is an action of tort in which the plaintiffs seek to recover for the alleged careless and negligent digging of a drainage ditch whereby the plaintiffs' springs were destroyed and polluted and their dooryard washed out (count 1). The plaintiffs further seek to recover damages by reason of the alleged careless and negligent disposal of a dead heifer by the defendant whereby the plaintiffs' springs became contaminated in consequence of which the plaintiffs claim their minor daughter and they, themselves, became sick with damage resulting (count 2).

At the conclusion of the evidence, the defendant moved for a directed verdict on the following grounds: (1) that there was no evidence of negligence on the part of the defendant with respect to either digging the ditch or disposition of the dead heifer; (2) that there was no evidence tending to show that the dead heifer proximately caused any contamination of the water resulting in sickness; (3) that there was no evidence that the plaintiffs have any title to the springs in question.

The trial court granted the defendant's motion as to the second count; as to the first count it limited the plaintiffs to a recovery of damages for the gutting of their dooryard. The jury returned a plaintiffs' verdict on this count.

The court's disposition of the defendant's motion did not conform to the established procedure in this State. A verdict is never to be directed for the defendant if the declaration contains a good count and there is evidence tending to support it. Zweeres v. Thibault, 112 Vt. 264, 270, 23 A.2d 529, 138 A.L.R. 1131. The result which the court below sought to accomplish, is to be had by withdrawing the unsupported count from the consideration of the jury. Yandow v. New Amsterdam Cas. Co., 101 Vt. 322, 324, 143 A. 299. Although the procedure adopted by the trial court was inapt, no exception was taken on this ground. The defendant did except, however, to the court's action in entering judgment on both verdicts, one for the plaintiffs and one for the defendant. This obviously presents an incongruous situation and one which illustrates the lack of feasibility of the procedure adopted. Nevertheless, the real question remains: did the plaintiffs have a case for the jury in those respects upon which the trial court ruled against them? To answer this question, it is necessary to examine the evidence in the light most favorable to the plaintiff.

On Oct. 17, 1945, the plaintiffs, Clinton H. and Doris M. Randall, bought a farm located about four and a half miles from Lyndonville, Vermont. Part of the land was situated in the town of Lyndon and part in the town of Kirby. Like most farms it had its own water supply. It came from twin springs, situated side by side in a grassy ravine in the plaintiffs' field about one hundred fifty yards away from the buildings. Water from one of these springs ran down grade to the barn and from the other to both the house and barn. The springs consisted outwardly of two perforated bottomless barrels sunk in the ground with only a few inches of their tops protruding. They were readily visible and were in existence at the time the plaintiffs acquired title to their farm.

The time came in June 1949 when the plaintiffs decided to sell off a portion of their farm. The prospective customers were a Maurice J. Barber and wife. When Barber came to look the land over in anticipation of buying, the first thing Randall did was to point out where his springs were. The springs were on the portion of land which the Randalls proposed to sell. Barber was told by Randall that he wanted the water rights to his springs and if they went dry he wanted a right to go across the land to some other water rights. The negotiations between the Randalls and the Barbers resulted in a sale and they gave instructions for a deed in accordance with their talk as to what was to be conveyed and what was to be reserved. In this deed dated June 21, 1949, the following language appeared: 'Reserving, nevertheless, to the said Clinton H. Randall and Doris M. Randall, and their heirs and assigns, the right to construct a water line across the land hereby conveyed, along a course to be selected by the said Clinton H. Randall and Doris M. Randall, for the purpose of furnishing water to the buildings owned by the said Clinton H. Randall and Doris M. Randall, and the right to repair, relay and maintain said water line, and full and free right and privilege of ingress upon, and egress from, said land hereby conveyed for the purpose of construction, repair, re-laying and maintenance of said water line.' Other than the language just quoted there was nothing in the deed relative to springs, water rights, or rights incidental thereto. The scrivener who drew this deed assured the plaintiffs that it saved their spring and spring-rights to them. Without this assurance, the plaintiffs testified they would not have deeded the premises to the Barbers.

Following this conveyance, the plaintiffs selected no course and constructed no new water line; instead they continued to take water as before from the springs they had always used. The Barbers never interfered with this and made no claim to the plaintiffs' springs and spring line at any time after they had bought.

On February 20, 1951, the Barbers conveyed the land which had been deeded to them by the plaintiffs. The deed to them had been duly recorded. The Barbers conveyed to the defendant G. Walter Clifford and his wife, Rita. The deed from the Barbers to the Cliffords contained the following language: 'Subject, nevertheless, to that certain reservation in favor of said Clinton H. Randall and Doris M. Randall, their heirs and assigns, of that certain right to construct a water line across the land hereby conveyed, and incidental rights, all as mentioned and described.' * * * 'Reference is hereby made to said deed hereinabove mentioned and described, and to all prior deeds and the records thereof, for a more complete and particular description of the land and premises herein granted and conveyed, and of said reservation of a right to construct a water line, and incidental rights, hereinabove mentioned.'

Prior to purchasing this real estate, the defendant, Walter Clifford, talked with the plaintiff, Clinton Randall, about it. In the course of a talk concerning the character of the soil, its condition and value, Randall told the defendant he had springs on the land and pointed them out and said he wouldn't want them disturbed. The plaintiff Randall testified about Clifford's replying, 'that would come naturally; he figured most any person would know better than that.' (The defendant, himself, testified that up until six weeks before the trial he supposed the spring rights were the plaintiffs.) It was following this talk with the plaintiff, Randall, that the defendant decided to buy and got his deed from the Barbers as stated. After the transfer, the plaintiffs continued to use the same springs as before without interference or any claim on the part of the defendant.

On about the last of May or first of June in 1952, the plaintiff, Clinton Randall, noticed that the defendant was doing some dynamiting in the land that the Barbers had sold him. He went out to investigate and found that the defendant was in the process of making a ditch across the pasture by means of dynamite. As it turned out this ditch was to be about three hundred feet long, four or five feet wide, and about two feet deep. The ditch was sloped so that it would empty into the same ravine as the plaintiffs' springs. When the plaintiff saw this, he asked the defendant if he didn't figure that the ditch would result in damage to his springs and dooryard which lay below. The defendant replied that he figured he had a right to dynamite on his own land. To this the plaintiff replied that he was probably right, but not to damage another man's property. The plaintiff then suggested to the defendant that he turn the ditch he was making into a different ravine and so avoid this damage. The defendant stated that there wouldn't be water enough from the ditch to do any harm; so saying, he went about completing the dynamiting of the ditch.

It turned out as the plaintiff had feared; whenever there was a heavy rain, a large flow of water drained into the ravine where the springs were. It washed down on them and continued on down by the plaintiffs' dooryard. What was formerly a grassy ravine was gullied out, the springs were carried away, and with each succeeding rain more and more of the plaintiffs' front yard was gouged out and damaged. The percolating water which before had seeped into the spring was replaced by a small brook of surface water which ran muddy at times. One of the two spring lines, that supplying the barn, was put out of operation entirely. The intake to the other line, going to both house and barn, lay in the bed of the brook, with all housing gone. The plaintiffs continued to use the water when mud didn't clog the pipe. At times, after especially heavy rains it had to be pumped clear. When it ran, there was usually water enough for household purposes, but it wasn't used for drinking. So it was during the summer of 1952 and the spring of 1953.

In June of 1953 the defendant had a heifer come up missing. Not long after that date the plaintiffs began to notice that the water had a bad taste. After a little it developed a smell as well. It was the smell of carrion. Members of the plaintiffs' household began throwing up and having diarrhea after drinking the water. When it became apparent that the water didn't taste right, the plaintiffs and...