Arnold v. Farr , 61 Vt. 444 ( 1889 )

The opinion of the court was delivered by

Tyler, J.

The main question in this case is whether the deed ■from Brigham to defendant Farr conveyed an absolute title to an undivided sixth part'of the spring or a right only to take that portion of the water from some convenient point in the aqueduct.

The orator’s counsel claim in their brief that the only right Brigham’s grantors had was an undivided part of the water of the spring to be taken through the aqueduct, and that they •could convey no greater interest than they owned; that Brigham, during the time that he held title, and the defendant thereafter until October, 1886, placed this construction upon the ¿rant by taking their share of water from the aqueduct, and .that their construction of it is the measure of the defendant’s right.

Referring to the partition of the real estate of Arnold, there can be no question but that his heirs thereby acquired absolute title to the spring and aqueduct. The deed from De Wolfe to the orator Arnold did not convey the use of the water nor a mere right to draw it, but “ two undivided ninth parts of the aqueduct and spring of water now running to the dwelling house •owned and occupied by said De Wolfe, with full liberty to conduct said portion of water from said premises.” * * The same language is used in the deed from DeWolfe to Stoddard and in that of the latter to Phelps. Then DeWolfe, Arnold and Phelps, each owned two undivided ninths of the spring and aqueduct and conveyed a one-sixth interest therein to Brigham, whose deed to Farr contains substantially the same description. Farr, therefore, acquired a good title to an undivided sixth part of the spring and aqueduct with a privilege of taking that portion of the water from such point in the aqueduct as should be most convenient.

Is the defendant limited to the particular means mentioned in •the deed of taking his share of the water to his premises ? When a deed is of doubtful meaning, the manner in which the parties holding under it have for a long period of time treated the thing granted, aids in giving it a practical construction. This is the import of the Massachusetts cases cited upon the orator’s brief.

In Dryden v. Jepherson, 18 Pick. 385, there was a conveyance of a mill privilege described by metes and bounds with a. privilege of a dam which was not definitely located. It was' held that evidence of what the parties did immediately after the grant by way of marking out the site and height of the dam to be erected was competent for the purpose of determining the extent, of the grant. So if a deed of land refer to a monument not then erected and the parties afterwards erect it intending to conform to the deed, the monument so placed will govern the extent of’ land though not entirely coinciding with the line described in the deed. Makepeace v. Bancroft, 12 Mass. 469. It is familiar law that where the boundary line between adjoining lands is uncertain, that which the respective owners have long acquiesced in becomes the line of division. So where the identity of land conveyed is in dispute, the acts of the parties in relation thereto may be shown in evidence. Allen v. Bates, 6 Pick. 460.

But in this case there is no uncertainty in the deed. The 'extent of the grant is clearly defined, and the fact that the-defendant and his grantor for many years drew their share from, the stone aqueduct is not conclusive against defendant’s right to-take it directly from the spring by another aqueduct unless the-words in the deed clearly or by necessary implication limit him. to the former means, and we hold that they do not.

This is in accordance with the reasoning of the court in Adams v. Warren, 23 Vt. 395, and Rood v. Johnson, 26 Vt. 64.

The defendant has not drawn nor threatened to draw more than his share of the water, and though the master reports that there is no practicable way for the defendant to draw his one-sixth part by a separate pipe and be reasonably sure of getting his share and no more, we think that the orator’s rights are not so imperiled by the. defendant’s proposéd means of taking his-share as to warrant the intervention of the' Court of Chancery by its injunction oi* by an order for a division of the water according to the prayer of the bill.

The cause is remanded with mandate that the decree of the Chancellor dismissing the orator's bill of complaint be affirmed with costs.