Baxter v. Village of Rutland , 67 Vt. 607 ( 1895 )

THOMPSON, J.

The defendant, the Village of Rutland, condemned and took certain water flowing through the petitioner’s land, to supply it with water. This proceeding is to recover such damages as accrued to him as a riparian owner, by reason of such taking. There are two available water privileges on his land which were affected and rendered less valuable by the taking of the water by the defendant. They have never been utilized, but this fact does not preclude the petitioner from recovering the damages thereto, resulting from such taking. They then were available for use, if the owner had seen fit to use them. He is entitled to recover of the defendant such a sum as will compensate him for the loss of the water for all available uses to which he, as riparian owner, legitimately might have put it at the time of the taking. Hooker v. Montpelier & White River R. R. Co., 62 Vt. 47; Leonard v. Rutland, 66 Vt. 105; Bailey v. Woburn, 127 Mass. 416. The defendant in his argument concedes this to be the correct measure of damages, but contends that the commissioners must have assessed the damages upon some other theory. This does not appear from their report. The record does not show that the defendant filed exceptions to their report, nor does it appear that this question was raised in the court below, and consequently it is not before this court. The contrary not appearing, it is to be presumed that the commissioners and the court below adopted and applied the correct rule in respect to damages.

Judgment affirmed with interest and costs to petitioner.