Wheeler v. Taylor.

• Decision Date: 03 October 1944
• Docket Number: No. 925.,925.
• Citation: 39 A.2d 190
• Court: Vermont Supreme Court
• Parties: WHEELER v. TAYLOR.

39 A.2d 190

WHEELER

v.TAYLOR.

No. 925.

Supreme Court of Vermont.

Oct. 3, 1944.

Exceptions from Court of Chancery, Orleans County; Cleary, Chancellor.

Suit by Ernest J. Wheeler against H. E. Taylor to enjoin defendant from interfering with plaintiff's use of flashboards on defendant's dam, to control flow of water to plaintiff's mill. Decree for defendant and plaintiff brings exceptions.

Decree affirmed.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Raymond L. Miles, of Newport, for plaintiff.

Arthur L. Graves, of St. Johnsbury, for defendant.

BUTTLES, Justice.

The plaintiff owns and operates by water power a saw mill in the town of Westmore on Mill Brook about two miles below Long Pond from which the brook flows. Water is brought to the mill through a ditch or raceway from a small dam on the brook. There is another dam at the outlet of Long Pond, owned by the defendant, with a flume and flashboards, by which the water emptying into Mill Brook can be controlled. During dry periods in the summer months sufficient water is not obtainable through the raceway from the small dam to operate the mill, so that it is then necessary to increase the flow by means of the flashboards on the defendant's dam at Long Pond, the procedure being to remove the flashboards in the morning and replace them at night. This procedure was followed by the plaintiff until after a quarrel between the parties in 1941 when the defendant spiked the flashboards in place and has ever since prevented the plaintiff from removing them when an increased supply of water was needed. By this suit in equity the plaintiff seeks to enjoin the defendant from interfering with the plaintiff's use of the flashboards for the purpose above descried.

The original bill asserted a prescriptive right to their use but this claim has been abandoned and he now relies upon the claim set up by an amendment that the right to control the flow of water by the use of the flashboards is an easement appurtenant to the mill site which passed to him by his deed of the property. After hearing, findings of fact were made and filed, a decree was entered for the defendant and the plaintiff excepted. The only question now before us is whether the findings show, as a matter of law, that the plaintiff possesses the easement that he claims.

The plaintiff is the defendant's father-in-law and both parties derived their title from a common owner, the Parker Young Company, which purchased the Long Pond dam in 1902 and the property upon which the plaintiff's mill now stands in 1905. The two properties are not contiguous, the lands of several other proprietors lying between them. The company sold the mill site to the plaintiff in June, 1917, and the dam was purchased by the defendant in May, 1936, by a written contract providing for the payment of the purchase price in installments, an initial payment of $500 being made, and a deed was delivered in April, 1943.

During the company's ownership of both properties it operated a saw mill by water power on the land sold to the plaintiff and the flashboards on the Long Pond dam were used for the regulation of the supply of water in the same manner in which the plaintiff later used them until his controversy with the defendant. But in 1916 the mill burned and when the plaintiff took title only the water wheel remained. His deed described a parcel of land by metes and bounds “upon which the mill did stand” and included “a right to control or make any needed repairs on the ditch or raceway that supplies the mill with water”. This ditch or raceway was not upon the land conveyed and the language of the grant is the same in this respect as in the deed by which the Parker Young Company acquired the title in 1905, as well as in previous conveyances of the same property. It did not appear that the Parker Young Company by its deed to the plaintiff conveyed any greater or different water rights than those which passed to it by its deed in 1905.

In September, 1917, the plaintiff sold the mill site to Smith, Kent and Hawkes. He repurchased Smith's interest in 1922, Hawkes' interest in 1936 and Kent's interest in 1937. After its sale to the plaintiff in 1917 the Parker Young Company operated two steam mills in succession on the site of the former mill. The first of these burned and the second was removed in 1930. In 1918 and 1919 the plaintiff used the water wheel to generate electricity and later, at intervals to run a saw rig to saw slabs. The generation of electricity was in the summer months, and the operation of the wheel for both purposes covered a period not exceeding five years. From at least the middle 1920's until 1936 no use was made of the flashboards.

The plaintiff erected his saw mill in the spring of 1936. In May of that year he told the defendant that he was glad that he had bought the Long Pond dam before someone else got it so that he (the plaintiff) could use the water. The defendant replied that he was willing that the plaintiff should use it, as long as he did so properly. The plaintiff attempted to buy the dam, but the defendant refused to sell because at some time he might want to use the power for a mill of his own which he might build. About that time in reply to an inquiry from a neighbor whether he had any right to remove the flashboards the plaintiff said that the defendant had given him that right. Before his purchase of the mill site the plaintiff was employed by the Parker Young Company for some years in connection with the mill and the use of water from Long Pond.

An implied easement may be created by grant or reservation. There is no reservation here and we must consider whether there was a grant of such an easement in the deed from the Parker Young Company to the plaintiff which conveyed the land upon which the mill formerly stood with the appurtenances. While the Parker Young Company was the common owner of the mill and the Long Pond dam there was no easement, for the unity of title and possession prevented its existence. Plimpton v. Converse, 42 Vt. 712, 717; Miller v. Lapham, 44 Vt....