Village of Brattleboro v. Anna Yauvey

• Decision Date: 03 October 1928
• Citation: 143 A. 295,101 Vt. 314
• Parties: VILLAGE OF BRATTLEBORO v. ANNA YAUVEY
• Court: Vermont Supreme Court

143 A. 295

101 Vt. 314

VILLAGE OF BRATTLEBORO v. ANNA YAUVEY

Supreme Court of Vermont

October 3, 1928

February Term, 1928.

Waters---Right To Take Water as Interest in Real Estate---Jurisdiction of Municipal Court in Matter Involving Title to Real Estate.

1. Right to take water from a water system is itself an interest in real estate.

2. In action by village, under Acts 1925, No. 170, giving village power to collect its water rents as taxes may be collected to recover rent for water received by defendant from plaintiff's water system, where defendant, by compliance with G. L. 918, Subd. III, had placed burden upon plaintiff to prove its title to water system, and only question involved was whether plaintiff owned water system unencumbered by defendant's claimed right to free water service, held that since title to real estate was involved matter was not within jurisdiction of municipal court, under G. L. 1641, 1647, 1658.

ACTION OF CONTRACT by Village of Brattleboro for recovery of water rent, under Acts 1925, No. 170. Answer general denial, also special defenses, denying jurisdiction of trial court on ground that title to real estate was involved, that defendant owned right to be supplied with water received, without charge, and that plaintiff was estopped from asserting the contrary. Trial by jury in Brattleboro municipal court, Carpenter, J., presiding. Verdict directed for plaintiff, and judgment thereon. The defendant excepted. The opinion states the case.

Judgment reversed, and judgment for the defendant to recover her costs.

Herbert G. Barber and M. P. Maurice for the defendant.

Orrin B. Hughes and Frank E. Barber (C. Menzies Miller of counsel), for the plaintiff.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

OPINION

CHASE

The case comes from the Brattleboro municipal court where the plaintiff brought its action in contract to recover the rent it claimed due for water furnished the defendant at her dwelling-house. Trial was by jury and both parties moved for a directed verdict. The plaintiff's motion was granted. To this, to the denial of her motion, and to other rulings of the court, the defendant excepted.

The essential facts were not disputed and are as follows: Years ago Isaac Hines built what was known as the Hines Aqueduct System to supply water from certain springs he owned to houses in Brattleboro. He intended to build a reservoir to aid in the distribution of the water and to divide the system into one hundred and fifty shares, but never built the reservoir. He sold to various people twenty shares or rights to take water from his system and kept the rest himself. The sale of two shares to C. F. Thompson is shown by a receipt which was introduced in evidence, reading:

"Brattleboro, Apr. 23, 1872.

C. F. Thompson Bot of Isaac Hines 2 shares of my Aqt. Water $ 100. to be taken from the nearest point convenient to them from my logs or from Res. Rec. Payment Isaac Hines."

The following now appears on this receipt:

"I hereby assign, sell and transfer the within Two Shares Water to P. Fleming for value rec. Brattleboro, Aug. 31/77. C. F. Thompson

Town Clerk's Office, Brattleboro, Vt. Received Jan. 24, 1925 at 10 A. M. Record Book Miscel. 1 Page 448. Olive M. Capron Asst. Town Clerk."

These two shares of water were used to supply the dwellinghouse now owned by the defendant until the change hereinafter mentioned. This house was deeded by Patrick Fleming to the defendant on March 30, 1923, together with all water and water rights connected with or then supplying the premises.

About the year 1877, George E. Crowell became the owner of all of the Hines system except such rights therein as Hines had previously sold. Mr. Crowell built and operated another water system having its source of supply in Sunset Lake and elsewhere, but not in any of the springs which fed the Hines aqueduct and used in distributing water what was, and is, known as the Chestnut Hill Reservoir. He organized water companies under different names as time went on, but they all constituted one system and for convenience the name Crowell will be used in referring to them.

After Mr. Crowell bought his interest in the Hines aqueduct, water from that system continued to be supplied to the house now owned by the defendant until the winter of 1892-93 when the Hines pipes in the vicinity of that house became frozen. Then Crowell, who had nearby a pipe line leading from Chestnut Hill reservoir, connected the house with the Chestnut Hill pipe and supplied it with water in that way instead of repairing the Hines pipe. About the same time, he turned the water from the Hines aqueduct into the Chestnut Hill reservoir and supplied all of the Hines shareholders with Chestnut Hill water instead of directly from the Hines springs. This change was made with the knowledge of the Hines shareholders, but not with their entire approval for they including the defendant's predecessor in title, P. Fleming, brought a suit in the Windham county court of chancery in July, 1893, seeking to compel Crowell to supply them with water directly from the Hines system instead of from Chestnut Hill reservoir. This suit was pending until 1914, when it was discontinued without the rights of anybody having been thereby determined. During the pendency of this suit, and afterwards until the plaintiff bought the Crowell water...