White River Chair Co. v. Connecticut River Power Co. of New Hampshire

• Decision Date: 02 November 1932
• Citation: 162 A. 859,105 Vt. 24
• Parties: WHITE RIVER CHAIR COMPANY v. CONNECTICUT RIVER POWER COMPANY OF NEW HAMPSHIRE
• Court: Vermont Supreme Court

162 A. 859

105 Vt. 24

WHITE RIVER CHAIR COMPANY v. CONNECTICUT RIVER POWER COMPANY OF NEW HAMPSHIRE

Supreme Court of Vermont

November 2, 1932

November Term, 1931.^[*]

Findings of Chancellor---Waiver of Exceptions by Failure To Brief---Effect of Failure To Take Exception to Claimed Error---Waters and Water Courses---Sufficiency of Evidence To Sustain Findings as to Tendency of Dikes To Cut Off Percolating Waters---Sufficiency of Evidence To Sustain Findings as to Provision for Drainage of Sewage and Surface Waters---Burden of Proof---Preponderance of Evidence [105 Vt. 25] ---Rule Applicable for Testing Finding That Chancellor Was "Unable To Find" Certain Fact---Credibility of Witnesses and Weight of Evidence for Chancellor---Effect of Failure To Brief Exceptions to Findings---Failure To Challenge Findings as Affecting Consideration by Supreme Court of Questions Relating To Tendency of Evidence---Exceptions to Findings as Insufficient To Bring Up Exceptions To Admission or Exclusion of Evidence---Sufficiency of Evidence To Warrant Chancellor's Finding as to Source of Seepage---Evidence---Party Not Bound by Testimony of Own Witness---Presumption---Sufficiency of Evidence To Support Finding as to Source of Water in Sump---Equity---Plaintiff Must Recover on Case Made by Bill---Percolating Water---Supreme Court May Not Make Presumption Contrary To Findings---Ownership of Purchaser of Flowage Rights as against Party Seeking Injunction against Maintenance of Dam---Assignability of Right To Construct Barriers Obstructing Percolation of Ground Water from Another's Premises---Erection of Dikes Obstructing Percolation of Ground Water from Another's Land Not Unlawful Nor Entitling Such Person to Injunctive Relief---Effect of Failure To Request Findings or To Except to Findings as Made---Power of Court of Chancery on Remand Respecting New or Amended Pleadings.

1. When findings of chancellor are challenged on ground that they are not supported by evidence, they must stand if there is any legitimate evidence fairly and reasonably tending to support them.

2. Exceptions to admission and exclusion of evidence, held to be waived by failure to brief.

3. Criticisms of expressions used by chancellor in finding, held not for consideration by Supreme Court, where no exception was taken to finding.

4. In suit to enjoin maintenance of power house and dam, finding in effect that weight of dikes compacted and consolidated subsoil on which they were built, and tended to cut off percolation of ground water under dikes, held justified by evidence.

5. In such suit, finding that defendant, by installing automatic pump at general location of former culvert, had effectively and adequately provided for drainage of sewage and surface waters formerly passing through said culvert held warranted by evidence.

6. In such suit, plaintiff had burden to establish case by preponderance of evidence.

7. "Burden of proof," meaning obligation to establish truth of claim upon which plaintiff rests his case, is upon him throughout.

8. When conflicting evidence is of equal weight, or, if evidence of defendant outweighs that of plaintiff, evidence of plaintiff does not preponderate.

9. Rule for determining whether findings are supported by evidence applies to finding that chancellor is "unable to find" fact on which plaintiff rests case, to extent that, if there are unchallenged findings or legitimate evidence fairly and reasonably tending to support claim of defendant, Supreme Court cannot say evidence preponderates in favor of plaintiff.

10. Credibility of witnesses and weight to be given their testimony held for chancellor, and not for Supreme Court.

11. Exceptions to findings of chancellor not briefed are waived.

12. Where findings of chancellor were unchallenged, questions relating to tendency of evidence, or lack of evidence, held not before Supreme Court.

13. Exceptions to admission or exclusion of evidence are not brought to Supreme Court by exceptions to findings on ground that they are not supported by evidence.

14. In suit to enjoin maintenance of power house and dam, evidence held to warrant finding as to source of water which seeped into basement of plaintiff's premises.

15. Party is not bound by testimony of his own witness, but may show fact is otherwise than he has stated it to be.

16. Supreme Court will presume in favor of finding that it was based upon evidence that supports it.

17. In suit to enjoin maintenance of power house and dam, finding that water in sump underneath automatic pump at lowest point near plaintiff's premises could all be accounted for by water from hillside and land west and north of dikes, held supported by evidence.

18. Plaintiff must recover, if at all, upon case made by bill.

19. Percolating water is regarded as part of land itself, and belongs to owner of land, who may use it there as he pleases or sell it to be used by others elsewhere, although thereby depriving adjoining land owners of its use, or he may construct barriers which prevent such water from seeping into his soil or cause it to seep into soil of another, there being no correlative rights in such water as between adjoining land owners.

20. Supreme Court could not presume, in view of findings made by chancellor with respect thereto, that defendant had exceeded its charter rights in erection and maintenance of dam and holding flow of river in storage.

21. As to flowage rights purchased by defendant from riparian owners, as against plaintiff in action to enjoin defendant from maintenance of dam, located in part within such flowage rights and in part on other property which it was permitted to use for that purpose, defendant will be considered as owner of land.

22. Owners of land having legal right to construct barriers on their lands which would obstruct percolation of ground water from another's premises without being liable for any damage caused thereby, may assign such right either by grant or license.

23. In suit to enjoin maintenance of power house and dam, acts of defendant in erecting dikes on property of others, from whom defendant had either purchased flowage rights or secured permission to use property for that purpose, which obstructed percolation of ground water from plaintiff's land, held not unlawful and not to entitle plaintiff to injunctive relief on that ground.

24. Where plaintiff claimed evidence would have justified chancellor in finding defendant's promise to pay for any and all damages to plaintiff's land, property, and business from erection and maintenance of dam, but record fails to show any request by plaintiff for findings, or exception to chancellor's failure to make finding, there is nothing for Supreme Court to review.

25. When contentions of parties are not passed upon by Supreme Court, and remand is not accompanied by mandate restricting action of chancellor, matter of new or amended pleadings is left with court of chancery or chancellor by provisions of G L. 1571.

APPEAL IN CHANCERY. The plaintiff sought to enjoin defendant from maintaining a power house and dam. Heard on Bill of complaint, answer, general replication, and chancellor's findings of fact, after the September Term, 1930, Windham County, Sturtevant, Chancellor. Decretal order for the defendant. The plaintiff appealed. The opinion states the case.

Decree affirmed, and cause remanded.

Herbert G. Barber, Clinton H. Blake, and Marvelle C Webber for the plaintiff.

Warren R. Austin and Austin & Edmunds (F. J. Dunn, of Boston, of counsel) for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

THOMPSON

This is a proceeding in chancery in which the plaintiff, a Vermont corporation, seeks to enjoin perpetually the defendant from maintaining a power house on the westerly bank of the Connecticut River, hereinafter called the river, and a dam extending therefrom across the river, which it constructed and completed during 1909 at a point in Vernon about five miles southerly of plaintiff's premises, and for an accounting for damages.

The plaintiff alleges in its bill that from the time of a certain settlement made by the parties on July 15, 1924, mentioned therein,

"to the present time the defendant has continued to operate its said dam and power house and addition thereto and superstructure thereon, wholly without right as to the plaintiff, so as to continuously cause water to overflow and seep through to and upon the lands of the plaintiff and in times of high water and freshets to cause debris, mud and silt to be deposited upon the lands and in and upon the buildings of the plaintiff and to cause great injury and damage to its lumber, manufactured stock, buildings, machinery and appliances and has caused great and irreparable injury to the business of the plaintiff in the sale of its manufactured products by reason of dampness in and about the plaintiff's premises which the plaintiff is unable to detect until after said manufactured goods have gone into the hands of its customers and others and has thereby caused and is causing great and irreparable loss to the plaintiff in the business world and of its reputation as a manufacturer," etc.

The plaintiff alleges further that such wrongful acts constitute "a continuing trespass," and that the court of chancery has jurisdiction to enjoin the same to prevent such trespass from ripening into an easement to the defendant and to prevent a multiplicity of suits.

There was a hearing before the chancellor. A finding of facts was filed, and there was a decree for the defendant dismissing the bill with costs. The plaintiff appealed.

The plaintiff suffered substantial damage from the flood of 1927 and claimed below that it was caused by the...