Willard v. Stone

• Decision Date: 23 November 1925
• Citation: Willard v. Stone, 253 Mass. 555 (Mass. 1925)
• Court: Supreme Judicial Court of Massachusetts
• Parties: WENDELL B. WILLARD & others v. HOWARD D. STONE.

253 Mass. 555

WENDELL B. WILLARD & others v. HOWARD D. STONE.

Supreme Judicial Court of Massachusetts, Worcester.

November 23, 1925

September 21, 1925.

Present: RUGG, C.

J., CROSBY, PIERCE CARROLL, & SANDERSON, JJ.

Easement, To use of spring, Abandonment. Water Rights. Deed, Construction. Contract, Consideration.

A deed in 1849 by an owner of farming land upon which there were springs granted to the owner of land adjoining "the right to take & use the water from a point near or below a certain spring or springs situated on the farm on which I now live & about forty rods west of my buildings and about ten rods north of said . . . [grantee's] land and also the right to dig the necessary trenches and put down pipes suitable to carry the water to said . . . [grantee's] buildings: Also the right to take up and repair said pipes or put down new ones when it may be necessary." In the region described were two springs. The grantee constructed a reservoir with which he connected at first only one of the springs. Fifty-eight years later the grantee's successor in title, under an oral agreement that he would do some filling and draining about the springs, which he did not perform, connected the reservoir with the second spring also.

About sixteen years thereafter, the successor in title to the grantor made a connection with the second spring and drew the water down so that the grantee's successor did not have sufficient water for his reasonable needs, and a suit was brought to enjoin such diversion. Held, that

(1) The water rights granted by the deed by implication and as incidental thereto included the right to perform such acts as were reasonably necessary to make the grant effective;

(2) From the deed and the conduct of the parties, it was apparent that the plaintiff had the primary right to take the waters of the second spring as well as of the first spring for necessary and reasonable purposes;

(3) There was nothing to show an abandonment by the plaintiff of his rights; such abandonment could not be found unless it clearly appeared that it was intended by the owner;

(4) The oral agreement by the plaintiff, entered into when he made a connection with the second spring, gave him nothing beyond the rights which he already had, and his failure to carry out that agreement did not preclude him from insisting upon his primary right to the waters of that spring;

(5) Since the taking of waters of the second spring was not an extension or an enlargement of the right given by the deed, the use during the first fifty-eight years of the waters of the first spring only did not preclude the plaintiff from availing himself of his right to the primary use of the second spring when he exercised it;

(6) The description in the deed as to the locations of the springs was not uncertain; and therefore the circumstances did not call for the application of the familiar rule of construction that where a right of way or other easement, is granted by deed without fixed and definite limits, the practical location and use of such way or easement by the grantee under his deed, acquiesced in by the grantor at the time of the grant and for a long time subsequent thereto, operate as an assignment of the right and are to be deemed to be that which was intended to be conveyed by the deed, and are the same in legal effect as if they had been fully described in the terms of the grant;

(7) A decree enjoining the defendant from interfering with the primary right of the plaintiff to use the water of the second spring as well as the water of the first spring was proper.

BILL IN EQUITY filed in the Superior Court for the county of Worcester on January 10, 1924, to establish and declare the plaintiffs' right to draw water from the defendant's premises by means of pipes running from two springs to a reservoir and from the reservoir to buildings on the plaintiffs' land; to enjoin the defendant from obstructing, interfering with, diverting, or in any manner preventing the plaintiffs from so drawing water, and for damages due to unlawful obstructions and diversions of the water by the defendant.

In the Superior Court, the suit was referred to a master. Material findings by the master are described in the opinion. (ILLUSTRATION)

A portion of a plan annexed to the master's report and referred to in the opinion is shown on the opposite page.

The suit was heard upon the master's report by Burns, J., by whose order there were entered an interlocutory decree overruling exceptions to and confirming the master's report, and a final decree that the plaintiffs were entitled to take all the water issuing from the springs on the defendant's premises referred to in the opinion "as springs A and B (which springs were in existence in 1849 at the time of the grant), and to conduct said water to said Willard premises, so far as the water issuing from said springs was and now is in good faith required for use on said Willard premises for all domestic and farming purposes, in the same manner and to the same extent that the same was used and enjoyed by William B. Willard aforesaid, and has since been used and enjoyed by his successors in title"; that "the connection of spring B made by the defendant with the Stone reservoir . . . in 1923, by a pipe laid at the same level of outlet as the outlet pipe to the Willard reservoir . . . constitutes a wrongful diversion of waters which previously passed by the point referred to in said deed, and were granted thereby, and constitutes a continuing disturbance of the easement, now existing in favor of the plaintiffs;" and enjoining the defendant "from maintaining the outlet pipe connecting said spring B with the Stone reservoir . . . at the level of the plaintiffs' outlet pipe, and from conducting or conveying waters from said spring B except in subordination to and in recognition of the plaintiffs' primary and prior right to the first use thereof, for conveyance to and for use on their premises, in the manner and to the extent above defined."

R.B. Dodge, (A.T. Saunders with him,) for the defendant. L.K. Clark, for the plaintiffs.

CROSBY, J. This is a bill perpetually to enjoin the defendant from impairing or interfering with the alleged right of the plaintiffs to take waters from springs on the defendant's land. By warranty deed dated May 15, 1849, George Whitcomb, the defendant's predecessor in title, granted and conveyed to William B Willard, the plaintiffs' predecessor in title, "the right to take & use the water from a point near or below a certain spring or springs situated on the farm on which I now live & about forty rods west of my buildings and about ten rods north of said Willards land and also the right to dig the necessary trenches and put dow-pipes [sic] suitable to carry the water to said Willards buildings: Also the right to take up and repair said pipes or put down new ones when it may be necessary." The titles to the respective premises of the plaintiffs and the defendant are not in controversy. The farm of the plaintiffs is adjacent to that of the defendant. It appears that there are several springs upon the farm of the defendant, as shown by the record and the plan annexed thereto, but the questions of law raised relate only to those referred to as springs A and B. The case was referred to a master who has filed a report. The evidence is not reported. An interlocutory decree confirming the report, and a final decree in favor of the plaintiffs, have been entered. The case is before us on an appeal from the final decree.

The controversy is chiefly over the right of the plaintiffs to use the waters of spring B and the extent of such right under the deed of May 15, 1849. It appears that William B. Willard, the grantee soon after the grant, laid a pipe, from certain buildings on his farm to a point near springs A and B on the Stone farm, through which water was conveyed to the Willard place; this connection has been maintained to the present time, and a continual supply of...