Vermont Shade Roller Co. v. Burlington Traction Co.

• Decision Date: 07 May 1930
• Citation: 150 A. 138,102 Vt. 489
• Parties: VERMONT SHADE ROLLER CO. v. BURLINGTON TRACTION CO. ET AL
• Court: Vermont Supreme Court

150 A. 138

102 Vt. 489

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

Supreme Court of Vermont

May 7, 1930

February Term, 1930.

Waters and Water Courses---Construction of Mutual Agreement Respecting Use of Water---"Covenant"---"Confirm"---Inferences on Appeal To Support Decree---Inference Based on Inference Unallowable---Inference in Support of Decree To Be From Facts Found---Construction of Water Agreement with Respect to Apertures through Which Water Taken---Necessity of Construing Instrument To Give Effect to Every Part---Practical Construction of Parties---Matters for Consideration in Construing Instrument---Construction of Water Agreement Respecting Method of Measuring of Water---Principal and Agent---Agent's Authority To Bind Principal---Sufficiency of Evidence To Sustain Chancellor's Finding as to Amount of Water to which Party Entitled under Agreement---Rights of Owner of Water Power with Respect to its Conveyance---Grant of Water To Operate Particular Mill or Machine Construed.

1. Words of mutual agreement respecting use of water, to make definite and certain quantity of water sufficient to operate certain machines and a mill owned by plaintiff's predecessor, are to be construed as language of both parties and shall not be taken more strongly against one than the other.

2. In agreement to "covenant" and "confirm" certain quantity of water to plaintiff's predecessor, his heirs and assigns, held that verb "covenant" means "to agree (with)," and verb "confirm" means to ratify.

3. On appeal in chancery, not every inference will be drawn in favor of decree, but it will be assumed that chancellor inferred from facts found any fact fairly inferable therefrom and necessary to support decree.

4. Finding of chancellor as to capacity of water wheel installed by plaintiff's predecessor, held not to justify inference as to construction parties had placed on amount of water to be used under written agreement.

5. No inference can legitimately be based upon a fact existence of which itself rests upon a prior inference.

6. To support decree, inferences cannot be drawn from evidence, but only facts that can be inferred in support of decree are those that can fairly be inferred from facts found by chancellor.

7. Agreement respecting use of water, permitting only so much to be used as will pass through two openings each 10 inches square, construed in light of surrounding circumstances and practical construction placed upon it by parties as shown by findings, held to mean amount of water which will discharge through openings of the size mentioned with square edges.

8. Instrument should be construed by court so as to give effect to every part, and form from parts a harmonious whole.

9. Practical construction placed upon agreement respecting water rights by conduct of parties may be considered in construing instrument, if necessary.

10. Nature and condition of subject-matter, purposes sought to be accomplished, and circumstances in which parties contract may be considered in construing instrument.

11. Agreement as to use of water, held to show that water should be measured by its discharge through iron gates placed in bottom of flume or wheel box.

12. Under agreement as to use of water, held that parties thereto intended that water should be measured by its discharge through iron gates in bottom of flume or wheel box, when wheel gate was closed and water wheel not in operation.

13. Where under arrangement defendant constructed a measuring box and weir at end of plaintiff's tail race to determine whether plaintiff was using more water than entitled to under water agreement, it was duty of plaintiff's hydraulic engineer, representing plaintiff in installation of such device, to construe instruments and determine type of opening parties thereto contemplated by words "two openings each ten inches square," and, having assented to and approved measuring box and weir so constructed as to measure water passing through plaintiff's wheel in excess of amount that would discharge through two openings each ten inches square with square edges, plaintiff was bound by engineer's action.

14. Agent's authority is prima facie coextensive with business entrusted to his care, and cannot be narrowed by limitations not communicated to person dealing with him.

15. Where plaintiff claimed that, as a riparian owner, it had right to capture and use surplus and flood water of westerly channel of stream in addition to its right under certain water agreement with plaintiff's predecessor chancellor's finding that plaintiff was entitled only to such water power, as is defined, ratified, confirmed, and granted by such agreement, held sustained by evidence.

16. Owner of all water power of stream could convey either land without water power, or water power without land or qualified and limited right to water power.

17. In absence of restrictive words, grant of so much water as would operate a particular kind of mill or machine, held used to describe and limit quantity of water power conveyed.

APPEAL IN CHANCERY. Heard on pleadings and chancellor's findings of fact after the September Term, 1927, Chittenden County Graham, Chancellor. Decree determining amount of water to which plaintiff was entitled under certain agreement. Both plaintiff and defendant, People's Hydro Electric Vermont Corporation, appealed. The opinion states the case. Reversed, and cause remanded with mandate.

Decree reversed, and cause remanded with mandate that there be a new decree in accordance with the views herein expressed. Let the defendant recover its costs in this Court.

Marvelle C. Webber, of Rutland, for the plaintiff.

Chas. H. Darling and Guy M. Page for defendant, People's Hydro Electric Vermont Corporation.

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

OPINION

THOMPSON

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, five hundred 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 9th 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 and 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 (3/4) of all the...