Corevo v. Holman , 82 Vt. 34 ( 1909 )

Watson, J.

This action was brought to recover for the alleged trespass of defendants in laying a pipe into a certain spring, claimed by the plaintiff, which was situated on land adjoining that of defendant, but belonging to a third person. As to defendant Trask the verdict was guilty, and on his exceptions the case is here. The plaintiff produced a deed from one Sault and wife to him, conveying the farm on which he resided and containing the clause: “With the right to a spring on the J. Seymour place, meaning the spring where water is now taken. ” It was conceded by both sides that this is the spring here in question.

Defendant introduced evidence tending to show that for upwards of sixty years the occupants of the premises owned by his father, under whose authority he acted when he did the acts complained of, had taken all their water for household purposes from a watering-trough on the road side, situated eight or ten rods from the house. This watering-trough was supplied with water from the spring in question by means of “pump logs.” The deed of the house and land to the defendant’s father included the appurtenances. This conveyance was before the deed from Sault to the plaintiff. Evidence was introduced by both parties in respect to which party repaired the spring, pipeline, and trough. But defendant’s evidence tended to show that his father had used the water ever since he purchased the premises, and so under a claim of right; and that the defendant had kept the spring in repair, replaced the logs by a pipe and, in 1906, laid a pipe from the trough to his house.

A prescriptive right to take water from this spring for the necessary use and benefit of the defendant’s house and premises could be acquired by taking water from the watering-trough for that purpose in pails uninterruptedly under a claim of right for the requisite period, as well as by taking water therefrom by pipe running to the house and premises, — the only difference being in the method of conveying the water from the watering-trough, — or by both taken together in succession, and pass as an appurtenance in a deed conveying the' property with which it is thus connected. The plaintiff does not controvert this proposition in argument, but on the contrary says there is nothing in the charge indicating that an appurtenance must be connected with the house or buildings; that there was no claim on the part of defendant Trask that at the time he took his deed water from this spring was running to his house or land, but only that he had a right to go to the spring to get water or to the watering-trough on a third person’s land; and that the charge of the court rightly understood means that the right to go to the spring or trough for water may be an appurtenance. The charge in this respect to which exception was taken was as follows: “Water running in a house or other building may be an appurtenance; running water in premises so situated and under such circumstances that it belongs there, belongs .to the building or premises conveyed, passes with the building or premises in the deed, under the head of appurtenances, but it must be so used in connection with the buildings or premises, and under such circumstances that it constitutes a part of such property so conveyed, for the purpose for which it is used, that it belongs there, is appurtenant thereto.” Then continuing the charge, the court said: “The water was not in fact running in the old logs when these deeds were made, according to the situation as I remember it. When it did run it did not run across or upon the land conveyed which was the Trask place and was in no way directly connected with the premises. Take the testimony in view of what I have said and say whether the water or line of logs or the spring, or any right therein, was appurtenant to the premises conveyed. If it was not then it did not pass as an appurtenant to those deeds.”

. We think that portion of the charge excepted to was well calculated to mislead the jury into believing that in order to be an appurtenance passing under the deeds the water must have been running in the buildings or on the premises in such circumstances as to belong to the building or premises deeded, and must have been used in connection with them so as to constitute a part of the property, thereby excluding the idea that the right to take water from the spring could be an appurtenance if the water was carried from the watering-trough to defendant’s buildings and premises in pails, and the tendency of what the court said to the jury immediately thereafter was to strengthen such belief. This was error.

It is unnecessary to consider the other exceptions argued, as they are not likely to arise on another trial.

Judgment reversed and cause remanded.