Waterman v. Buck
| Decision Date | 26 March 1891 |
| Citation | 22 A. 15,63 Vt. 544 |
| Parties | H. A. WATERMAN v. O. & A. H. BUCK ET AL |
| Court | Vermont Supreme Court |
AUGUST TERM, 1891
Bill in chancery to recover damages for injuries done the plaintiff's meadow by the deposit of sawdust and other mill waste in the Gihon river. The case was finally disposed of at the December term, 1889, Powers, Chancellor, by a decree for the orator.
P K. Gleed, for the orator.
OPINION
The orator brought his bill against the defendants O. & A. H. Buck, May 4, 1883, alleging that they were wrongfully depositing the waste from their saw mill in the river Gihon, which brought it upon his meadow, thereby causing him damage, and praying for a temporary and perpetual injunction and for damages. A temporary injunction was granted, but was not observed by these defendants. Other parties operating mills on the stream became co-defendants who need not be named, nor considered, inasmuch as they have ceased to be interested in these proceedings. By agreement the case was referred to a special master who reported the facts, and the damages in one general sum occasioned the orator's meadow to January 1, 1885, when these defendants ceased to deposit the waste from the mill in the stream. A decree was entered for the orator to recover all the damages reported. From this decree these defendants brought the case, by appeal, to this court. By a mandate from this court it was held to be erroneous to give the orator damages later than the date of his bill, and the cause was remanded, to have the damages ascertained to that date, and a decree for the orator entered. 58 Vt. 519. At the April term of the Court of Chancery, 1886, the orator obtained leave to file a supplemental bill to bring in the damages to Jan. 1 1885. This was filed May 1, 1886, and these defendants filed their answer thereto May 9, 1886, and therein claim that no right to bring in the damages sustained subsequently to the commencement of the original bill, by a supplemental bill, existed, because such damages, they insisted, were not a part or parcel of the subject matter of the original bill, but wholly independent of, and separate from it, and crave the same advantage, as if the objection had been taken by demurrer. At this term the orator filed a motion to have the cause re-committed to the special master, to have him ascertain the damages charged in the original bill, and in the supplemental bill. This motion appears to have been heard April 27, 1886, and a decretal order made of that date. The order assumes that the supplemental bill and defendants' answer thereto, had been filed. It refers the cause of the original bill to the master who made the original report, to have him, from the evidence already before him, ascertain the damages sustained by the orator to the commencement of the original bill, and refers the cause to another special master to find the damages sustained by the orator for the time included in the supplemental bill, from the evidence already taken, and such further evidence as the parties might submit. The chancellor was the special master under the original bill. As of this April term, he made an additional report, finding the damages sustained to the date of the original bill, and made a decree thereon for the orator. This decretal order is dated Nov. 27, 1886, and the additional report and decretal order were filed in the cause Dec. 7, 1886. To this action of the special master and chancellor the defendants filed six special exceptions. The date of the filing of these exceptions does not appear, but from their contents, it is evident they were filed subsequently to the filing of the decretal order. These exceptions being subsequent to the decretal order are outside of any rule of practice, but the defendants claim they should have advantage of them, because they claim they had no notice of filing the additional report, or of the decree thereon. There was a hearing upon the matter of the supplemental bill, and the special master's report thereon came on for hearing at the
December term of the Court of Chancery, 1889. The master under the original bill found that the orator sustained damages to his meadow to Jan. 1, 1885, to the amount of $ 700, and by his
additional report, of this sum $ 300 were damages done in the spring of 1884. $ 300 damages done in the spring of 1883, and $ 100 damages done before the spring of 1883. By the decretal order filed Dec. 7, 1886, these defendants were decreed to pay two-thirds of the $ 300, and nine-tenths of the $ 100. The special master upon the matter of the supplemental bill, reports, that from an examination of the testimony taken before the former master, and his findings in his original and additional report, as well as his orders thereon as chancellor, it appears clear to him that the former master labored under the impression that all the deposits made in 1883, and from which the orator suffered damage, were made prior to May 4th, the time of filing the original bill. But this master finds from the evidence before him, that only a small proportion of the damages sustained from deposits made in 1883 were made before the time when the original bill was brought; that the large amount of deposits made that year, were made a few days after the original bill was brought, and about haying time; that if he includes all the damages sustained after the original bill was brought to Jan. 1, 1885, the same are $ 318.25, but of this amount only $ 56.25 occurred in the year 1884. He further finds that not over five acres of the orator's meadow was injured by these deposits and that their entire value did not exceed $ 75 per acre, or $ 375. He further finds, that of these damages the deposits coming from the defendant's mill, caused only one-half. These are the main facts brought before this court by the defendants' appeal from the final decree against them made at the December term of the Court of Chancery, 1889. On the facts and pleadings, the defendants make several contentions.
They contend that no right to file a supplemental bill existed; that each wrongful deposit of waste in the river, which caused the orator damage gave him the right to an independent action; and that such deposits after the bringing of the original bill have no connection with the deposits made before that date. No doubt this would be the case, if the action were at law. Whether it is so in equity need not now be considered. If so, the defendants should have demurred to the supplemental bill, and have insisted upon the demurrer before entering upon a trial of the facts involved, on the evidence. Whether their craving leave in their answer to be allowed the same effect of the facts as if presented by a technical plea amounts to a demurrer and avails the defendants, need not be considered. They went to a trial of the supplemental bill, on its merits, before the special master, and thereby waived the right to have this portion of the answer considered in the nature of a demurrer. Pinch v. Anthony, 92 Mass. 470; Underhill v. Van Cortlandt, 2 Johns. Ch. 361; Note 1, Sec. 1524, Daniel's Ch. Prac. Sec. 1535. Holt v. Daniels,61 Vt. 89.
But there is another answer to this contention. The original bill could be sustained in equity on the ground of preventing a multiplicity of suits, and of preventing further wrongs of the same kind. This last was secured by a temporary injunction, or restraining order. If the defendants had obeyed this injunction, the wrongs complained of in the supplemental bill would never have occurred. The scope of the original bill as a preventative measure covered the damages brought before the court by the supplemental bill. The orator under the original bill could have...
To continue reading
Request your trial