Sargent v. Gagne

Decision Date05 November 1958
Docket NumberNo. 1271,1271
Citation147 A.2d 892,121 Vt. 1
PartiesLyle C. SARGENT and Blanche L. Sargent, v. Albert T. GAGNE and Ruth Gagne.
CourtVermont Supreme Court

Black, Plante & Ellison, White River Junction, for plaintiffs.

Finn & Davis, Barre, for defendants.

Before CLEARY, ADAMS, HULBURD and HOLDEN, JJ., and SHANGRAW, Superior judge.

HOLDEN, Justice.

This proceeding is in equity. The controversy centers on the ownership of rights to a water source, referred to as the School Spring, and its connecting aqueduct. The spring and pipe line are located on the defendants' farm. The plaintiffs seek injunctive relief against the defendants' interference with the plaintiff's right to take water from the spring by the existing aqueduct and from interference with the plaintiffs' repair and maintenance of the pipe line.

The defendants have denied the plaintiffs' claim of ownership. They affirmatively allege there has been an abandonment of the property by the plaintiffs' predecessors before the plaintiffs acquired their farm. The defendants further allege they have acquired the property by deed and by adverse possession under a claim of right for a period in excess of twenty-five years. In their cross complaint the defendants, too, seek equitable relief and damages.

The opposing parties own neighboring farms in Royalton. The disputed School Spring is located in the defendants' pasture some five rods northerly and downgrade from a second spring referred to by the defendants as the 'Home' or 'Gagne Spring.' There was evidence that there were other springs in the same general area that are not in use or usable.

In support of their conflicting claims of title, certified copies of the instruments of conveyance in the respective chains of record title were offered by both parties. These exhibits were received without objection.

On October 1, 1853, David and Silas Williams entered an agreement with Charles Clapp, the plaintiffs' predecessor in title. This agreement, recorded November 30, 1871, in Book R of the Royalton Land Records, recites: 'That in consideration of ten dollars paid by the said Clapp to the said David and Silas R. Williams, the said Clapp is to have the privilege of taking and continuing to take from a certain spring situated some six rods, more or less, nearly north from where the said David and Silas R. Williams now take water to convey to his own house as much water as will naturally run through a half inch pipe or tube to convey the same to the present dwelling house of said Clapp, and to have the privilege of digging across the lands of said David and Silas R. Williams to convey the same to the present dwelling house of said Clapp, and in case of necessity to repair the same.' (Plaintiffs' Exhibit 13).

The first deed appearing in the defendants' chain of title was derived from Joseph W. Waldo, 2nd. September 19, 1876, Waldo conveyed the present farm of the defendants to Henry Pierce. Following the description of the property conveyed there appears: 'Except a spring on said premises from which water is taken by aqueduct to the Clapp farm, so called which I reserve'. The grantor engaged to warrant and defend the granted premises against all lawful claims 'except said spring'. (Defendants' Exhibit J.)

October 26, 1879, Joseph W. Waldo, 2nd, by warranty deed, undertook to convey a spring to the plaintiffs' predecessor in title, Phillip Sewall. The deed sets forth: 'in consideration of twelve dollars paid to my full satisfaction by Phillip Sewall of Royalton--Grantee, by these presents, (I) do freely give, grant, sell, convey and confirm unto the said Sewall and his heirs and assigns forever, a certain spring of water in Royalton--described as follows, viz.: Being a certain spring of water on land now owned by Henry Pierce and the same spring that I reserved in my deed to said Pierce, dated Sept. 19th, 1876 and is the same spring from which the water is taken by aqueduct to said Sewall's house, formerly the Charles Clapp house, also is the same spring that Silas R. Williams and David Williams leased to Charles Clapp Oct. 1, 1853, which lease is recorded in the Royalton Land Records, Nov. 30, 1871 in Book R. I am not to be held liable at any time for any damage that may arise to the land in consequence of digging or relaying said aqueduct.' (Plaintiffs' Exhibit 11.)

The conveyance by Henry Pierce to the next succeeding grantees in the defendants' line of title, Newton, Roy and Hattie Prescott and Sarah Wells, dated May 23, 1907, specifically states: 'excepting a spring on siad premises from which water is taken by aqueduct to the Clapp farm, so-called which I reserve which is now used by the Sewall farm.' (Defendants' Exhibit I.)

The Henry Pierce farm, less a parcel of land conveyed by Sarah Wells to the town of Royalton for a schoolhouse in 1914, passed by mesne conveyances to the Gagne family, and thence to the defendant Albert T. Gagne in 1923. The school property was after acquired by the defendants in 1953. The plaintiffs obtained title to their adjoining farm through various intermediate grants which purport to convey the granted premises 'with all privileges and appurtenances thereof'; however, no specific mention is made of any spring in the plaintiffs' chain subsequent to the grant from Waldo.

To identify the spring mentioned in the Waldo grants as the School Spring, the witness Nelson G. Lamson was called as a witness for the plaintiffs. Lamson testified without contradiction in the evidence that his father acquired and lived on a farm adjoining the plaintiffs' farm in 1902 and that he and his father worked on the plaintiffs' farm in 1902 and 1903. This witness testified that in 1903 he and Sewall, then the owner of the plaintiffs' farm, cleaned out the lower spring which was located four or five rods from the present Gagne Spring. He testified that in 1903 water from this spring was piped into the celler of the Sewall farmhouse. He identified the spring which they visited in 1903 as the School Spring that is in dispute. He testified the spring was used in connection with the Sewall farm until the farmhouse burned in 1923.

After Lamson's testimony was given, the defendants called a witness Taylor who had been familiar with the Sewall Farm since 1904. He testified, 'I don't know much of what the situation was before 1904. I came in 1904--from then on I knew.' He testified that at sometime prior to 1923 he had helped Mr. Sewall dig up another and different pipe line to a well on the Sewall's sugar place and at a different location from the School Spring. He further testified that he was familiar with the School Spring and had visited it on many occasions; that he had never seen a pipe line leading from the School Spring nor did he know of Sargent or his predecessors in title ever having used the School Spring.

When the plaintiffs moved on the Sewall Farm in 1935, water was piped to the farm buildings from a well on a hill across from the farmhouse. Except for the occasional filling of milk cans at the School Spring, no use was made of this water source by the plaintiffs prior to 1948.

With the history of the premises standing thus, the plaintiffs requested the chancellor to find that their predecessors in title leased a spring, together with the right to maintain an aqueduct therefrom to the plaintiffs' premises from the defendants' predecessor in title on October 1, 1853. The chancellor was further requested by the plaintiffs to find 'that the plaintiffs' predecessor in title did on, to wit, October 26, 1878, purchase said spring from the defendants' predecessor in title. (See, Plaintiffs' Exhibit 11, which is found as a fact.)' and that the plaintiffs' predecessors in title used the water from the spring until the dwelling house on the property burned, about 1922-1923.

The plaintiffs also requested a finding to the effect that their farm, purchased by them May 3, 1939, was known as the Sewall Farm. The court was requested to include in its findings the subject-matter of the several plaintiffs' exhibits received at the hearing, including Plaintiffs' 11 and 13. These requests were denied and adequate exceptions were preserved by the plaintiffs.

The findings are entirely silent on the origins of the title to the School Spring, and no attempt is made by the findings to identify the plaintiffs' farm or the School Spring.

In substance, the findings state only these facts: The defendants Gagne are the owners of the Henry Pierce Farm or Prescott Farm. The Sewall School property was formerly a part of the Pierce Farm and was conveyed by Sarah A. Wells to the town of Royalton with a provision that if the school property was ever sold the owners of the Pierce Farm were to have the first opportunity to repurchase. The Gagne Spring is piped to the defendants' home. The School Spring is piped to the Sewall School and from there to plaintiffs' home. In 1938 the defendant Albert T. Gagne gave the school board of the town of Royalton oral permission to take water from the Gagne Spring for the school for so long as it was used as a schoolhouse. The defendant Gagne assisted in the digging and laying of the pipe. The plaintiff took no part in the laying of this aqueduct.

By findings 7, 8, and 9 it is determined that in 1948 the plaintiff Lyle Sargent, with the consent of the school directors, removed the intake of the aqueduct from the Gagne Spring and installed it in the School Spring thereby changing the source of water supply for the Sewall School, from the upper, to the lower spring. It appears that Sargent tapped into the school aqueduct at the schoolhouse to bring water from the School Spring to his home. Permission was not sought nor obtained from the defendants to accomplish this connection. The defendants had personal knowledge of this use of the water from the school aqueduct by the plaintiffs but made no objection until September 15, 1951.

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17 cases
  • Carlson v. Clark
    • United States
    • Vermont Supreme Court
    • February 13, 2009
    ...cannot be changed thereafter without the mutual consent of the owners of the dominant and servient estates." Sargent v. Gagne, 121 Vt. 1, 12, 147 A.2d 892, 900 (1958). We have reiterated this rule several times, but we have also recognized exceptions. See Sweezey v. Neel, 2006 VT 38, ¶ 10, ......
  • Roy v. Woodstock Cmty. Trust, Inc.
    • United States
    • Vermont Supreme Court
    • January 17, 2014
    ...case where this Court found that a warranty deed that referenced “appurtenances” in the deed included spring rights. Sargent v. Gagne, 121 Vt. 1, 4, 147 A.2d 892, 895 (1958). ¶ 12. In evaluating WCT's appeal, we consider undisputed evidence of record concerning the chain of title to the lan......
  • Roy v. Woodstock Cmty. Trust, Inc.
    • United States
    • Vermont Supreme Court
    • November 1, 2013
    ...case where this Court found that a warranty deed that referenced "appurtenances" in the deed included spring rights. Sargent v. Gagne, 121 Vt. 1, 4, 147 A.2d 892, 895 (1958). The court did not, however, specify to which of the conveyances it was applying this precedent, and the decree of di......
  • In re Shantee Point, Inc.
    • United States
    • Vermont Supreme Court
    • October 4, 2002
    ...general rule is that the owners of both the dominant and servient estates must consent to relocate an easement. See Sargent v. Gagne, 121 Vt. 1, 12, 147 A.2d 892, 900 (1958) ("It is the general rule that a way, once located, cannot be changed thereafter without the mutual consent of the own......
  • Request a trial to view additional results
1 books & journal articles
  • Ruminations
    • United States
    • Vermont Bar Association Vermont Bar Journal No. 2009-06, June 2009
    • Invalid date
    ...60, 435 A.2d 690 (1981); LaFleur v. Zelenko, supra. [54] In re Shantee Point, Inc., 174 Vt. 248, 811 A.2d 1243 (2002); Sargent v. Gagne, 121 Vt. 1, 12, 147 A.2d 892, 900 (1958). [55] Holden v. Pilini, 124 Vt. 166, 170, 200 A.2d 272, 275 (1964); Sweeney v. Neel, 179 Vt. 507, 904 A.2d 1050 (2......

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