State v. Walter A. Malmquist

• Decision Date: 03 October 1944
• Citation: 40 A.2d 534,114 Vt. 96
• Parties: STATE v. WALTER A. MALMQUIST
• Court: Vermont Supreme Court

40 A.2d 534

114 Vt. 96

STATE v. WALTER A. MALMQUIST

Supreme Court of Vermont

October 3, 1944

May Term, 1944.

Opinion on Motion for Reargument filed January 2, 1945.

Interest of Public in Maintenance of Water Level of Inland Lakes.

1.The State of Vermont has an interest in the waters of its inland lakes, distinct from the interests of the littoral owners (a) such a lake being a body of public and boatable water its bed or soil is held by the people of the State in trust for the public uses for which it is adapted; (b)the State has the right and duty of preserving and increasing the supply of fish therein; and (c)the State may enjoin or prosecute for any drawing down of the waters of the lake to such extent as to constitute a public nuisance.

2.Where the original level of a lake has been raised by artificial means and maintained for a long period at the new level, such changed level may be treated as the true natural level of the lake.

3.One who has accepted the benefits bestowed by a statute, or who has acquired rights of property necessarily based upon it may not thereafter attack that statute as unconstitutional.

4.Where the legislature has by statute, the constitutionality of which is not in question, granted to individuals permission, by erecting a dam, to raise the level of a lake in order to provide power for mills below the outlet, control of the lake level by means of such dam must be limited to mill purposes; and, in addition, any lowering of the level of the lake which is harmful to the public interests is unreasonable and becomes a public nuisance.

5.Although equity will interfere to prevent the commission of repeated acts done or threatened, which are wrongful and injurious to the property or rights of another, it will not do so where an act is single and temporary in nature; in such case the injured person is left to his remedy at law.

6.When a court of equity by injunction restrains the excessive lowering of the level of a lake, the restraining order should define the limit beyond which such level should not be lowered.

7.In the matter of maintaining the level of the waters of an inland lake, the State is a trustee for the people and may not agree to or consent to any change in the level which will be injurious to the people of the State.

8.The right to lower the level of the waters of a public and boatable lake to such extent as to injure the interests therein of the people of the State cannot be gained by prescription.

9.On appeal, doubtful findings are to be construed in support of the decree if this can reasonably be done and the Supreme Court will assume, in favor of the decree, that the trial court inferred such facts from the other facts certified as it ought to have done, or might fairly have done; but the findings will not be supplemented by other facts not fairly inferable as resulting from them.

10.Where the trial court has drawn an unwarranted inference from the facts as found such inference is to be disregarded on appeal.

11.The Supreme Court will not supply missing facts by an examination of the transcript, for the transcript does not enlarge the findings even though referred to therein, or in the bill of exceptions, this rule applying equally to causes at law and in equity.

12.The Supreme Court has power, in the exercise of its discretion to remand a cause for further proceedings.

SUIT IN EQUITY to enjoin the unreasonable and arbitrary lowering of the level of waters in an inland lake.In Chancery, Orange County, Black, Chancellor.After hearing the evidence and filing written findings of fact, the Chancellor dismissed the bill.

Decree reversed, and cause remanded, with directions that further proceedings be had, and the limits to which the level of the water of Lake Fairlee may be drawn down below the elevation of the crest of the spillway in the dam at the outlet of the lake during the spawning season, March 15th to July 15th, and also at other times of the year without detriment to the propagation of fish, or the production of fish food, shall be ascertained, and that when this has been done, an injunction issue restraining the defendant, his agents and servants, from drawing down the water of the lake below such limits, and from drawing down the water for any purpose other than for the operation of his mill.But nothing herein shall be construed as prohibiting either party to this proceeding from applying to the Court of Chancery for permission temporarily to draw down the waterto a point below the limits set by the injunction for purposes of necessary repairs to the dam.

Alban J. Parker,Attorney General, and Lawrence C. Jones and F. Ray Keyser, special counsel, for the State.

George L. Hunt for the defendant.

Present: MOULTON, C. J., BUTTLES, STURTEVANT and JEFFORDS, JJ., and CLEARY, Supr.J.

OPINION

MOULTON

This is a suit in equity wherein the State of Vermont seeks to enjoin the defendant, the owner of a dam across the outlet of Lake Fairlee in Orange County, from unreasonably and arbitrarily drawing down the waters of the lake by means of the gate and tube in the dam.After hearing the evidence and filing written findings of fact the Chancellor dismissed the bill, and the cause comes before us on the State's exceptions.

The findings disclose that Lake Fairlee is more than two miles in length, covering approximately 1700 acres, and is a body of public boatable water within the meaning of Sec. 63 of the Vermont Constitution.It is very well adapted for the propagation of fish and the production of fish food, the parts best suited for these purposes being the marginal or shore areas where the spawning beds and acquatic vegetation are situated.From 1932 to 1939, inclusive, the State, through the Fish and Game Department, has stocked the lake with large numbers of black bass adults and fingerlings, bullhead fingerlings and pike perch fry.Since 1900 a number of summer cottages, hotels and recreational camps, and a public camping ground have been erected on or near its shores.

The outlet of the lake is at its southwesterly end and the water flows in a general southwesterly direction to the Ompompanoosuc River which, in turn, empties into the Connecticut.There has been a dam at the outlet in approximately the same location as the present one since before 1797, but the Chancellor is unable to find the height of the original dam.

The defendant purchased the dam on December 31, 1937, and derives his title through a series of conveyances from Eldad Post who deeded the dam and dam site to Aaron Post by warranty deed on August 21, 1798.On November 10, 1797, the General Assembly of this State passed an act which recited that: "Whereas it is necessary to raise the waters in Fairlee Lake, so called in order to supply with water several mills standing on the stream which empties out of said lake and the supplying said mills with a sufficiency of water to be of great public utility, especially to the inhabitants of West Fairlee, Vershire, Strafford, Thetford and Norwich.... it is hereby enacted by the General Assembly of the State of Vermont that liberty be and is hereby granted to said Aaron Post, his heirs and assigns to erect and keep a dam across the outlet of said lake, so as to raise the waters in said lake two feet upon a level above the rock at the south end of said Post's saw mill dam, which was anciently the bed or bottom of the stream or outlet of said lake."The act also provided for commissioners to assess the damages to the owners of the lands bordering upon the lake "upon the supposition that said lands be perpetually flowed," with a right of recourse to the County Court by any owner thinking himself to be aggrieved by the assessments.No steps were taken to increase the height of the dam until 1831, when in pursuance to the Act of 1797 the water of the lake was raised 18 inches on a level above a point in the bed rock at the southern end of the dam which was anciently the bed or bottom of the outlet.In 1904 or 1905 the height of the dam was again increased but the Chancellor is unable to find to what extent the level of the lake was raised.At about the time this was done the defendant's predecessor in title purchased flowage rights from the owners of property bordering the lake.In 1939, the dam, having become in bad repair, was rebuilt at the expense of the littoral owners, with the consent and under the direction of the defendant.There has been no change in the elevation of the spillway since 1904 or 1905, and there has been a tube three feet in diameter equipped with a gate in the same location in the dam ever since that time.

There are two dams in the Ompompanoosuc River, one known as the Kimball dam, and the other as the Post Mills dam, situated respectively about a quarter of a mile and between one and two miles below the lake.Neither is connected with the dam at the outlet, or with each other, by penstock or sluiceway.Both are the property of the defendant, who owns and operates a bobbin mill and a saw mill at the site of the Post Mills dam.

A saw mill, powered by a water wheel, was at one time located at the dam at the outlet but discontinued operation in 1891 when the business was removed to the Post Mills dam and thereafter the outlet dam was used only for storage purposes.Between 1933 and 1937 the dam was not in use because the mill was shut down.In 1938, 1939 and until November, 1940, the defendant operated his mill by water power and used the water from Lake Fairlee for this purpose.Since November, 1940, he has used a combination kerosene engine and steam power unit, except during a few weeks in September and October, 1941, when his engine was out of repair.At the time of the hearing steam power...