Whittier v. Montpelier Ice Co.

• Decision Date: 13 January 1916
• Citation: 96 A. 378,90 vt. 16
• Parties: WHITTIER v. MONTPELIER ICE CO. et al.
• Court: Vermont Supreme Court

96 A. 378

90 vt. 16

WHITTIER

v. MONTPELIER ICE CO. et al.

Supreme Court of Vermont. Washington.

Jan. 13, 1916.

Appeal in Chancery, Washington County; Willard W. Miles, Chancellor.

Suit by Clarence S. Whittier against the Montpelier Ice Company and others. From a decree dismissing the bill, the orator appeals. Decree reversed, and cause remanded, with mandate.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

F. B. Thomas, of Montpelier, and II. G. Barber, of Brattleboro, for appellant. Fred L. Laird, of Montpelier, and John W. Gordon, of Barre, for appellees.

TAYLOR, J. This is a bill in chancery involving the title to a portion of the bed of North branch in the city of Montpelier. The land in dispute extends from a point about five rods north of the bridge in Cummings street across said branch up the stream to the northerly boundary of the plaintiff's land.

On January 6, 1870, the plaintiff's father, Robert H. Whittier, owned the land on both sides of the branch north from Cumminga street, which included the land now owned by the plaintiff and that owned by the Montpelier Ice Company, as well as the whole of the river bed as far north as the defendant's land, and to the thread of the stream still farther north on the west side. On that day the said Robert H. conveyed to one Charles Lawrence the land now owned by the ice company on the east side of the branch by deed containing the following description:

"Beginning on the northeasterly side of North branch on the road leading to the farm of Alexander Campbell and following the line of said road until it strikes the line of said Campbell's farm; thence turning and running southerly as the fence now runs to said branch; meaning to convey three icehouses and the land inclosing the same."

The road referred to is now known as Cummings street, and leads easterly from the highway running from Montpelier to Worcester, known as Elm street in the city of Montpelier. It crosses North branch, and some distance east of the branch turns northerly and extends to and beyond the northerly boundary of defendant's land. Applied to the land the description starts from the easterly side of the branch at its intersection with Cummings street, runs easterly to the point where said street turns to the north, thence northerly to the line between the land conveyed and the so-called Campbell farm, and thence along said line to the North branch. It will be noticed that the closing course is not described in the deed.

On April 15, 1876, said Whittier conveyed to Lawrence a strip of land five rods in width lying north of Cummings street and extending from Elm street to the branch. Defendants have succeeded to the title to these two pieces of land which have been the property of one or both of them since April 26, 1884. The plaintiff is the owner of all of the land formerly owned by his father excepting what was conveyed by these two deeds. His land, so far as involved here, lies between Elm street and North branch, and extends from the five-rod strip conveyed in 1876 to a point some distance north of defendant's extreme northerly boundary.

It is alleged in the bill, in substance, that during each winter since 1910 the defendant ice company had repeatedly trespassed upon the plaintiff's lands, has scraped snow from the ice that formed over the portion of the river in dispute onto his adjacent land, has cut, harvested, carried away, and sold the ice that formed over the portion of the bed of the river claimed by the plaintiff, has continued to trespass upon his lands during the ice-cutting season each winter and threatens to and plaintiff has reason to believe will continue so to trespass hereafter, unless and until the plaintiff is granted the relief prayed for. The bill further alleges that during the summer seasons since 1910 defendants have repeatedly trespassed upon the land claimed by him by removing gravel and other substance from the bed of the stream, whereby the banks of plaintiff's land adjoining the stream have been caused to wash, and said adjoining land submitted to great danger of being destroyed by the waters of said stream; and that plaintiff has reason to believe that defendants will continue so to remove gravel and other substance from the bed of the stream belonging to him unless restrained; that plaintiff brought suit in trespass on account of the trespasses alleged therein, but that since the bringing thereof the trespasses have been continued; that defendants claim title to the land in dispute which is a cloud upon plaintiff's title and a disturbing element to his peaceable occupancy of his lands.

In their answer defendants admit that in the year 1910 or 1911 plaintiff made claim that he owned to the thread of the stream where the defendant ice company gathers its ice, and that they paid no attention thereto, and have never recognized any right of the plaintiff in said stream. They further admit that unless restrained by order of court, they will enter upon said stream and do all things necessary for the purpose of carrying on the ice business. They set up in their answer a claim of ownership of the land in dispute, and deny that they, or either of them, have ever trespassed upon or injured the plaintiff's land.

The chancellor finds that North branch is a nonnavigable stream; that defendants have from time to time dug and removed from the bed of the stream near the north line of plaintiff's land and immediately adjacent to the westerly bank of the stream large quantities of earth and gravel, sometimes making excavations to the depth of two or three feet; that the defendants claim the right to excavate and carry away earth and gravel from the bed of the stream as they have done in the past, and that they intend to exercise that right in the future. Though requested, the chancellor has failed to find that such excavation has in the past increased, or will in the future be liable to increase, the dangers of the water's washing away the adjoining land.

This controversy arose in 1910 or 1911. The case shows that then, if not before, the defendants were claiming to own all of the river bed adjacent to their land and that portion of the river bed adjacent to the plaintiff's land farther north between the west bank and the thread of the stream. The case leaves us in doubt whether the plaintiff claimed at the trial before the chancellor beyond the thread of the stream. In his bill he alleges that his eastern boundary against the defendant's land is the east bank of the branch. It appears from the admission in defendant's answer that at the beginning of the controversy he was claiming only to the thread of the stream, and he concedes here that that bounds his land on the east. Whatever plaintiff's claim in this regard may have been at the trial, as the case is presented here, the land in dispute is that portion of the river bed between the thread of the stream and its west bank the entire distance across plaintiff's land.

Defendants claim that Whittier's deed to Lawrence of January 6, 1870, was a conveyance of the ice plant, and extended to the west bank of the branch, conveying all of the river bed owned by Whittier and used in connection with the ice plant. The chancellor finds that, in connection with the land and buildings conveyed, Whittier sold to Lawrence the apparatus and tools used in the ice business then being carried on in the buildings mentioned in the deed; that the source from which the ice was obtained was the river above the bridge in Cummings street; and that the business at that point could not then have been profitably carried on without harvesting the ice which formed over the disputed portion of the river.

Defendants did not acquire title to the river bed as an appurtenance to the ice plant. Though an easement in land may pass without express words as an incident to the grant, title to land cannot be acquired in that way. Miller v. Mann, 55 Vt. 475; Buck v. Squiers, 22 Vt. 484; Cole v. Haynes, 22 Vt. 588. It was said in the latter case: "Land does not pass as a mere appurtenance to other land." Defendants are not asserting an easement, but are claiming title to the land. They have been exercising and claim a right...