Vermont Shade Roller Co. v. Burlington Traction Co.

• Decision Date: 13 February 1931
• Parties: VERMONT SHADE ROLLER CO. v. BURLINGTON TRACTION CO. ET AL
• Court: Vermont Supreme Court

153 A. 563

103 Vt. 293

VERMONT SHADE ROLLER CO. v. BURLINGTON TRACTION CO. ET AL

Supreme Court of Vermont

February 13, 1931

November Term. 1930.

Rehearing in Supreme Court---G. L. 1567--1570---Presumption in Support of Decree---Water and Water Courses---Evidence as to Practical Construction by Parties of Water Power Agreement---Insufficiency of Evidence To Support Chancellor's Finding as to Orifices in Use for Measuring Water---Status of Question Not Raised Directly by Pleading, but Considered by Chancellor, on Appeal---Question within Frame and Prayer of Bill Cross-bill, and Case Made Thereon---Extent of Jurisdiction Taken by Court of Chancery---Rights under Water Power Agreement Stated.

1. General rule is that petition for rehearing brought under statute (G. L. 1567--1570) will not be granted for purpose of affording opportunity to present new questions.

2. Where chancellor, in construing agreement as to use of water refused to make finding requested which was, in effect, that plaintiff was entitled under such agreement to use as much water as would discharge through openings "with rounded edges," Supreme Court cannot presume, in support of decree, that he inferred such fact.

3. In view of testimony of witness for plaintiff as to amount of water that two openings each ten inches square with rounded edges would discharge, and plaintiff's claim that it was entitled to that amount of water under power agreement, held that evidence regarding gates installed by original parties to agreement was admissible as tending to show their practical construction of agreement.

4. Finding by chancellor that at time water power agreement was executed and at time of hearing rounded or bell-mouthed orifices were and are in general use for measuring water held not supported by evidence.

5. Installation of gates in bottom of flume at time wheel was installed, by parties to water power agreement, soon after its execution and in strict conformity to its provisions held controlling circumstance in determining proper construction of agreement, partaking of nature both of attendant fact and practical construction by parties to agreement as to what was meant by term "two openings each ten inches square."

6. Although neither question of right of defendant to install gates in plaintiff's flume to measure water to which it was entitled under water power agreement, nor type of orifice parties to such agreement contemplated, was directly raised by pleadings, where it appeared that while decree was in tentative form defendant requested chancellor to modify it so as to permit such installation, by which to determine amount of water plaintiff was entitled to use, both parties filing briefs on this question with the chancellor, and decree, being adverse to defendant on this question, impliedly overruling request, held that question was before Supreme Court on appeal.

7. Question of right of defendant to install gates in plaintiff's flume to measure water and determine amount being used, held within general frame and general prayer of bill and cross bill and case made thereon.

8. When court of chancery has jurisdiction of case for one purpose, it will retain it for all purposes, and dispose of whole matter.

9. Water power agreement held not to define and confirm right to use certain amount of power, but to give right to use certain quantity of water in weight or bulk, viz., so much water as will pass through openings each ten inches square.

10. Plaintiff held to have right to use mechanical inventions that would obtain greatest power from stream of water to which it was entitled under water power agreement.

PETITION FOR REHEARING by plaintiff, brought to Supreme Court, Chittenden County, under provisions of G. L. 1567-1570. Decision of Supreme Court was rendered at the May Term, 1930, decree of lower court being reversed and cause remanded with mandate for a new decree in accordance with views expressed in the written opinion. The case is reported 102 Vt. 489.

Rehearing denied. Petition dismissed. Mandate recalled. Decree reversed, and cause remanded for further proceedings not inconsistent with the views herein expressed.

Marvelle C. Webber for the petitioner.

Chas. H. Darling and Guy M. Page for the petitionee.

Present: POWERS, C. J., SLACK, and THOMPSON, JJ., and SHERMAN, Supr. J.

OPINION

THOMPSON

This is a petition for a rehearing in the above entitled cause brought by the plaintiff under the provisions of G. L. 1567-1570. At the May Term, 1930, this Court, after full hearing, reversed the decree of the court below, and remanded the case with mandate that there be a new decree in accordance with the views expressed in the written opinion. See this case, 102 Vt. 489, 150 A. 138.

The plaintiff contends that this Court erred in holding that "the decree should further provide that the defendant may install and maintain iron gates or openings at the bottom of the plaintiff's flume or bulkhead by which to determine the amount of water the plaintiff has the right to use under the terms of the Clapp Agreement, and may enter the premises of the plaintiff to determine the amount of water being used;" all this as provided by the terms of the Clapp Agreement of 1872; and, also, that this Court erred in holding on the findings by the chancellor "that the quantity of water to which the plaintiff, its successors and assigns, are entitled under the Clapp Agreement of 1872 is as much water as will pass through openings each ten inches square with square edges at the head of fifteen and one-tenth (15.1) feet at the top of the new dam."

We consider the latter contention first. The plaintiff argues that the fact to be inferred to support the decree below is not that the parties to the Clapp Agreement had in mind when they executed it that Clapp's quota of water might be measured by openings with rounded edges; but that the decree giving the plaintiff the greater efficiency of discharge through openings with rounded edges is sustained by the finding "that in 1872 the rounded orifice was known and in general use"; that because of this finding, and the findings that orifices will rounded edges might be indicated by the description "two openings each ten inches square," and that two such orifices will discharge about forty cubic feet of water per second, the plaintiff is entitled as a matter of law to the greater efficiency by the terms of the Clapp Agreement; and that it is not necessary to draw any inferences from the facts found to support the decree. The plaintiff cites and relies upon Janesville Cotton Mills v. Ford, 82 Wis. 416, 52 N.W. 764, 767, 17 L.R.A. 564, and Dexter Sulphite P. & P. Co. v. Jefferson P. Co., 179 A.D. 332, 166 N.Y.S. 311, 312, in support of this contention.

The plaintiff says that it made this contention at the first hearing; but this is not so, and the cases which it relies upon now were not cited in its brief. The plaintiff contended then that the Clapp Agreement was a grant or conveyance of water power and invoked the rule that in a case of doubt a grant will be construed most strongly against the grantor and in favor of the grantee, and it cited cases where it has been held that, as between two methods of measuring the quantity of water granted, the method giving the larger quantity to the grantee will ordinarily be taken as intended by the grant. But we held that the Clapp Agreement was not a grant or conveyance, and that its words are to be construed as the language of both parties and shall not be taken most strongly against one or beneficially for the other.

The general rule is that on a petition brought under the statute a rehearing will not be granted for the purpose of affording opportunity to present new questions. Van Dyke v. Cole, 81 Vt. 379, 399, 70 A. 593, 1103; Cunningham v. Blanchard, 85 Vt. 494, 501, 83 A. 469; City of St. Albans v. Avery, 95 Vt. 249, 265, 114 A. 31. And no reason has been presented why we should depart from the rule in this case. We will say, however, that we have examined the cases cited by the plaintiff, and they do not support its contention.

In Janesville Cotton Mills v. Ford, one of the questions was the meaning of the term "square inch of water" as used in certain grants of water power. The plaintiff claimed that the term had a definite, technical meaning among water engineers and practical mill men from a time anterior to the making of the first conveyance, and that such meaning was a stream of water with a cross section area of one square inch, moving with the velocity due to the given head. This is called the "theoretical inch." The defendants denied that the term had such a definite, technical meaning, and claimed that on the evidence it meant the amount of water which would pass through an aperture in a flume of the given number of square inches under a given head. This is called the "practical inch," and when discharged through an aperture with square edges it measures about sixty-two per cent. in volume of the theoretical inch, but if the aperture be trumpet shaped, or furnished with proper ajutage inside the reservoir, it may be made to equal the theoretical inch, and even to discharge as much as 240 per cent. of the theoretical inch.

The court said in its opinion: "It needs no authority to show that if the term had a fixed and definite meaning among hydraulic engineers and mill men at the time it was used such meaning would prevail, notwithstanding the fact that people ordinarily would not know such meaning, or even that the parties to the deeds themselves did not know it. Parties cannot use technical terms with fixed meanings and then disclaim such meanings." The plaintiff in the instant case relies upon this quoted portion of the opinion in support of...