Town of Bristol v. Palmer

• Decision Date: 12 November 1909
• Citation: 83 Vt. 54,74 A. 332
• Parties: TOWN OF BRISTOL v. PALMER.
• Court: Vermont Supreme Court

74 A. 332

83 Vt. 54

TOWN OF BRISTOL

v. PALMER.

Supreme Court of Vermont. Addison.

Nov. 12, 1909.

Appeal from Chancery Court, Addison County; George M. Powers, Chancellor.

Action by the Town of Bristol against Edson E. Palmer. Decree for orator, and defendant appeals. Affirmed and remanded.

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

Frank L. Fish and James B. Donoway, for appellant. Chas. I. Button and William H. Bliss, for appellee.

HASELTON, J. This was an injunction bill with a prayer for damages to be determined on an accounting. The case was heard in the court of chancery on the report of a special master, and comes here on an appeal from a decree in favor of the orator.

The New Haven river runs through the town of Bristol. Across it is a certain covered bridge, known as the "lower notch bridge," that is part of a public highway, and it is conceded by the defendant that the highway, including the bridge, was legally established in 1850. At the point in question the bridge runs practically east and west, and the river runs under it in a southerly direction. Since 1850, and indeed since 1842, this bridge has been maintained at all times where it is now, except that, as the master states, "the west end may have swung a foot or two more or less up or down stream." In 1900 the defendant commenced to build a dam immediately under the south side of the bridge. The work was under water until 1903, when the defendant completed the building of the dam, and when for the first time the selectmen of Bristol learned of the structure. The dam was tied to, or built up, against each abutment of the bridge. The height of the dam was four or five feet above the natural level of the water. When, in 1903, for the first time, the selectmen learned of the dam, they went to the place and ordered employés of the defendant whom they found there to stop work on the dam. The defendant was informed of this action, and subsequently the selectmen called upon the defendant himself and told him that he had no right to build the dam. The defendant claimed that he had such right, basing his claim upon grounds which will hereinafter be referred to. His claimed rights the selectmen denied. The defendant was informed that the matter had been placed in the hands of the town agent for investigation. The matter ran on until 1905, when the town employed the defendant to raise the west end of the bridge about two feet and to put in a supporting wing wall. At this time the town officers and the defendant had talk about the dam, but no permission to maintain it was given the defendant. In August, 1906, during a severe freshet, the wing wall at the south end of the west abutment went out, and one side of the traveled portion of the highway caved in. In the following September the bill in this case was brought With reference to the dam in its relation to the bridge the master reports: "As this dam from abutment to abutment under the bridge must have caused the water to rise higher upon the abutments, it would thereby cause the water to run through the stones, and saturate and percolate to a greater or less extent into and through the dry earth back of the abutment, and back of the retaining wall, and necessarily loosen the earth and contribute something to the fall of the retaining wall. After the dam was built under the bridge, the sand and silt accumulated somewhat back of the same, and filled in and around and against the footings of the abutment. The defendant claims and there is some testimony tending to show that this dam and the natural sediment that would collect at the bottom would brace and support these two abutments, but I am inclined to the opinion, and find, that these abutments were not made to hold water in storage, and the raising of the body of the stream by this dam would disturb the natural flow of the water under the bridge, and cause it to set back upon and rise up against these abutments in such a manner as to cause additional strain upon them over what the strain would be in the natural flow of the river. In addition to this, I find that the fall of the water over the dam upon the unprotected bed of the stream below has washed out the natural bed of the stream, making a considerable hole at the foot of the dam near the west abutment of the bridge and near the foundation of the wing wall which went out, and I therefore find that this dam adds somewhat to the risk of maintaining the highway bridge at this point if the abutments and wing walls had been put down to a solid foundation, or had been laid in cement, it would have made an appreciable difference, and would, perhaps, have minimized the liability of injury from the effect of the dam, but even then I am unable to escape the conviction that the use of the abutment as a wing to the dam and the change of the natural flow of the water and its collection above the bridge and the weight of the water upon the abutments would have added somewhat to the burden resting upon the abutments, but in that case the risk would probably have been very small."

The grounds on which the defendant claimed and claims a right to construct a dam at the bridge will now be considered. We here quote from the master's report as follows: "About thirty rods below the bridge was the head or upper end of an island in the stream which extended down stream about thirty rods. The main channel of the river was on the west side of the island. Opposite the lower end of the island, on the western shore of the stream, is the site of an old forge property, and across the main channel at that point from the island to the western shore there was a dam used in connection with the forge 64 rods down stream from the lower notch bridge. Just when this forge was built I think the evidence does not disclose, but it was operated for a good many years down to about 1862 or '63, when it was abandoned and left to decay. The east bank of the stream from the bridge or highway to the site of the old forge is owned by the defendant's wife, and occupied by the defendant and wife as a homestead. The defendant claims the right to raise the water under the bridge and flow the west bank by virtue of a deed, in his chain of title, from William S. Aborns to Winter H. Holley, executed the 15th day of December, 1847." The scope of the deed which the master above refers to appears from the second part of the description, which is this: "Meaning hereby to convey the whole of my interest in the forge, coal houses, ore houses, flume and dam standing on said land together with all the interest I have in the tools and implements belonging to said forge with the privilege of building any dam, or headgate, where the upper dam now stands, and may raise all the pond above said upper dam which is necessary for the forge and may have the privilege of erecting any cross dam above the upper pond which may be necessary for the forge below." Of the property conveyed by Aborns to Holley in 1847, Mrs. Cornelia Smith, the widow of one of the two surviving children of Holley, gave the defendant a quitclaim deed on December 1, 1890. Notwithstanding the mention of an upper dam in the deed from Aborns to Holley, the master is unable to find that there was a dam across the river further up stream than the old forge dam until one was built by the defendant, though we understand one of the master's findings to be, in substance, that there was at some time a short breakwater from the upper end of the island to the east bank of the stream, the purpose of which was to turn all the water of the stream into the main channel west of the island. It was conceded before the master that the water impounded by the old forge dam never set the water of the stream back as far as the bridge. At the time when the widow of one of Holley's children gave her quitclaim deed to the defendant, the old forge property had been abandoned for some 27 or 28 years. Counsel differ as to whether in any view of the facts the right to dam the stream at or near the old forge dam passed to the defendant. It is claimed on the part of the defendant that the reference to the forge water privilege in the deed from Aborns to Holley measured the extent of a right which passed to the grantee and which continued to exist after the forge was abandoned, and which passed to the defendant when he took his deed from Mrs. Smith. It is claimed by the orator that, in respect to a water privilege, whatever right Holley had ceased to exist when the forge was abandoned. But the question of who is right in this regard is not material in this case. If it is to be assumed that the defendant is right, and that Mrs. Smith's quitclaim deed gave the defendant all the right that Holley ever had, the most the defendant can claim in the way of a right to dam the river in this vicinity is a right to build a dam somewhere down stream from the bridge, and to maintain such dam at such height as would afford a water privilege at the site of the old forge equal...