Appeal in Chancery, Chittenden County; Warner A. Graham, Chancellor.
Suit by the Vermont Shade Roller Company against the Burlington Traction Company, the Peoples Hydro Electric Vermont Corporation and others. During the course of the litigation other parties acquired all the rights and interests of the Burlington Traction Company and became party defendants. From decree for plaintiff determining amount of water to which it was entitled under certain agreement, both plaintiff: and defendants appeal.
Reversed, and cause remanded, with mandate.
Argued before POWERS, C. J., SLACK, WILLCOX, and THOMPSON, JJ., and SHERMAN, Superior Judge.
THOMPSON, J.
This is an appeal in chancery. The case was heard on bill and cross-bill and answers thereto and facts found by the chancellor. Both parties excepted to the findings of fact, and both parties appealed from the decree. During the course of the litigation other parties acquired all the rights and interests of the Burlington Traction Company and became party defendants, but the Burlington Traction Company is the defendant referred to in the findings and in our disposition of the case.
The case involves the diverse claims of the parties as to their legal and rightful ownership, use, and control of the water power of the westerly branch or channel of the Otter Creek river at Vergennes. The parties own or control all of the water power of said westerly channel. The rights of both parties come down from a common grantor, Gideon Spencer. The plaintiff owns the right formerly owned by one Elliott Sherrill. The original grants of this right were of sufficient water to carry two carding machines, a picking machine, and a fulling mill. The defendant owns the water power rights formerly owned by Herrick Stevens, F. M. Strong, and Charles D. Keeler, doing business under the name of the Vergennes Water Power Company, and hereafter referred to as the water power company.
R. M. Clapp purchased the Sherrill water power right February 26, 1872. At that time there was a wooden dam across the westerly channel. The water power company owned the dam and the greater part of the water power of said westerly channel. A flume, sometimes referred to as a canal, 500 feet long, carried the water from the dam along the westerly bank of the channel. The flume was partly a box flume and partly a canal dug in the bank. There were several manufacturing plants operated by water power on said westerly bank. They all took the water for their power from said flume of the water power company. One of those plants is referred to in the findings as the Haviland Plant. Its intake was located next north of the intake of the R. M. Clapp Plant.
On September 9, 1872, said R. M. Clapp and said water power company executed the following indenture, hereafter called the Clapp agreement:
"This indenture made this 0th day of Sept. in the year of our Lord One Thousand Eight hundred and seventy-two between Mess.
Stevens, Strong & Keeler, known as the Vergennes Water Power Co. of Vergennes, Vermont, of the 1st part and Rollin M. Clapp of Vergennes of the 2nd part, Witnesseth:
"That for the purpose of defining, ratifying & confirming a certain right of water power granted to Elliott Sherrill June 9, 1809 & January 15th 1823, and sold by said Sherrill to Francis M. Strong May 16th, 1866 & subsequently sold to R. M. Clapp, Feb. 26th 1872, being situated on the west side of the River and below the Bridge. The said Water Power Co. of the first part for themselves, their heirs and assigns do covenant with and confirm unto the said R. M. Clapp, his heirs and assigns the right to use as much water as will pass through two openings each ten inches (10 inches) square when drawn from a Flume, Penstock or Bulkhead at a depth of nine feet and six inches (9 1/2 feet) below the upper side of bottom of the Bulkhead or Flume belonging to and now occupied by said Water Power Co.; Such right to be limited and qualified only as hereafter specified in the 2nd part of this agreement. The said Water Power Co. shall also provide Iron gates at the bottom of R. M. Clapp's flume or Bulkhead by which to determine the amount of water he has right to use and which may also be used as flood gates and may be attached automatically to the wheel gate of the said R. M. C. & operated by & with the same so as not to obstruct the flow of water to the damage of the power below. The said Water Power Co. are also hereby made liable together with their heirs and assigns to pay three-fourths (?) of all the expenses of repairing, rebuilding and maintaining the Dam on the said premises and shall keep their Flume or Penstocks in such condition as. not to waste water by leakage and shall appoint some one in their interest to transact all business with the said R. M. Clapp, his heirs or assigns, relative to the use of and joint occupation of the said water power; and shall allow said R. M. C. the right to improve his tail race so far as is necessary to secure a free discharge of the water as passing away from his wheel which may be located nine and one-half (9 1/2) feet below the inside bottom of old flume and about 16 feet from the top of the Dam measuring to the center of the water wheel Bucket, but shall have no right to blast or deepen under said Co. flume.
"It is also agreed by R. M. Clapp, his heirs and assigns, of the 2nd part that he shall pay one-fourth (1/4) of all the expense of repairing, rebuilding and maintaining the Dam on the said premises keeping his Flume, Penstocks or Bulkheads in such condition as not to leak water and shall allow the said water power Co., their heirs and assigns, to enter upon the said premises and affix their gates as above specified and determine the amt. of water being used by R. M. Clapp, his heirs and assigns.
"And it is further agreed by R. M. Clapp that in consequence or in case of low water he may be restricted in his right of water by the said water power Co. or their legal representative to using only as much as will pass through one opening of ten inches (10 inches) square or half the amt. above specified, said restriction not to exceed sixty days in a year, excepting one year in three when it may continue ninety days, said amount of water also to be determined as before by the discharge through Iron gates at the bottom of said R. M. C.'s Bulkhead or flumes. Low water notice may be given the said R. M. Clapp, his heirs or assigns, by the water power Co. and when the time of such restriction is expired or its necessity removed the said R. M. Clapp may use the full amt. of water as specified by the agreement of the said Stevens, Strong & Keeler and it is hereby and by these presents agreed by Mess. Stevens, Strong & Keeler known as the Vergennes Water Power Co. and also R. M. Clapp all of Vergennes aforesaid that for ourselves, our heirs and assigns the above indenture embraces the full and final adjustment of the rights and requirements of each as pertaining to the water power herein described & set forth."
Said indenture was duly signed, sealed, and acknowledged by the parties thereto, and recorded in the land records in the city clerk's office in Vergennes.
The defendant built a new concrete dam in 1910 and 1911 in place of the old wooden dam. It is 10 feet farther down stream than the old dam was, but its elevation at the top is practically the same as the elevation at the top of the old dam.
About 1878 the power for the R. M. Clapp factory was changed by the Cranes, to whom it had been conveyed, and which has since been acquired by the plaintiff, and since then it has been taken directly from the forebay with the full knowledge and acquiescence of the other owners of power on the channel. The elevation of the bottom of the old flume intake was the same as the elevation of the present intake of the plaintiff, and there has been no change in the level of the intake since it was originally constructed in 1878. The chancellor found that the plaintiff, under the Clapp agreement, is entitled to a head of water of 15.1 feet from the top of the new dam.
One of the questions in issue in the trial below was as to the type of "opening" contemplated by the parties to the contract of 1872 for measuring the water Clapp had the right to use. On this question, the chancellor found as follows:
"Since the hearing before me at Burlington on February 9, 1927, when the draft of the tentative findings of fact were considered and discussed, I have carefully considered the requests, suggestions, and argument of counsel made at that time and since, together with the additional testimony since taken before me, and have carefully reviewed the record pertaining to such additional requests which relate particularly to the question of the type of orifice provided for by the contract of 1872 and contemplated by the parties thereto, and also to the question of title. As to the title my conclusions as originally expressed in the tentative findings remain substantially unchanged, but, as to the type of orifice, I am satisfied that the record does not justify the conclusions stated in the first seven lines of Page 32 of the original draft of findings, and I now feel that the record of this phase of the case requires a fuller and more extended statement of my findings, and I find that at the time the Clapp Agreement was executed in 1872 there were and there are at the present time in general use two types of orifices for measuring water; one type being a square edge opening (see Deft's Ex. H. produced from the Haviland Plant), which will pass the minimum amount of water, that is, it has an efficiency of about 62% of the theoretical discharge; the other type of orifice so being in general use...
