Clement v. Gould , 61 Vt. 573 ( 1889 )

The opinion of the court was delivered by

Tart, J.

The report shows that the plaintiff owns the water rights in question, subject to those conveyed by Stevens to Herron in 1833, and that the title to the Herron rights is now in the defendant, unless such rights are affected by the deed from Stevens to Gleason in April, 1835. After the conveyance from Stevens to Herron, the former owned the right to use the water in the stream for any purpose except that of a grist-mill, but not to the injury of Herron, nor his assigns, in the mana „ facture of cotton or woolen cloth or meal and flour from grain. 31 January, 1835, Stevens conveyed his then rights in the water to Henry Hubbard, by mortgage deed containing the usual covenants. On the first day of April, 1835, Stevens quit-claimed alb his interest in such water rights to William Gleason. It does-not appear what became of the rights, if any, so conveyed to-Gleason; the defendant does not connect his title with them. In November, 1852, Hubbard conveyed by quit-claim deed to-Stevens the premises Stevens mortgaged to him in January, 1835. The report shows that the plaintiff has been in adverse possession long enough to gain a perfect title to all the rights of Stevens after his conveyance to Herron. Whether the plaintiff can recover depends upon the construction of the deed from Stevens-to Herron and the indenture simultaneously executed. Was the' use,of the water limited to the uses specified ? We hold that it' was. The quantity of water conveyed is described as sufficient to run a grist-mill and a cotton or woolen factory ; not a gristmill with so many run of stone, nor a factory with so many looms, thus limiting the quantity of water ; the quantity is limited only by the capacity of the mill and factory ; all the water' could, be drawn if required for those purposes. . If it was not' the intent to limit the use, it was needless to add anything to the-clause giving Herron the right to draw water for the purposes^ .specified, but wishing to limit the use, the parties added, after-stating the purposes for which the water could be used, the words “ and for those purposes only.” These words- clearly express that it was the use, not the quantity that was being limited. Again, in defining the rights of Stevens, the indenture provides that he may draw water for any purpose except a gristmill, but not to the injury of said Herron, his heirs or assigns,, in the manufacture of woolen or cotton into cloth or grain into-meal or flour. All the water can be drawn from Herron, for any purpose save a grist-mill, unless Herron uses it for the purposes specified in the grant to him. The words of the grant, are not ambiguous, the use of the water was limited to the purposes named, and the plaintiff is entitled to recover.

The defendant did not rely upon any act of the plaintiff nor ■upon his omission to do anything that the law required him to ■do; he used the water, claiming it under the Herron grant. There is no element of an estoppel in the case.

The plaintiff can recover against one wrong-doer, although -others may be liable; and the defendant is liable in respect to such time as he diverted the water, alone or jointly with others, •under a lease from others, and by others diverted, under a lease from him.

The plaintiff is entitled to a judgment for such damages as he fhas suffered by reason of the diversion of the water from his shop, flume and pond, and the referee finds them to have been „the following sums, viz.: $49.78, $22.50 and $18.00, being in dhe whole $90.28 with interest since 4th December, 1888.

■Judgment reversed and judgment for the plaintiff.