Ord v. Terry , 91 Vt. 148 ( 1917 )

ITaselton, J.

This is an injunction suit in chancery. A master was appointed who found and reported facts. On hearing, the court of chancery dismissed the complaint. The plaintiff appealed, and the case is here on his appeal.

The defendants are husband and wife. Prior to October 23, 1899, the defendant Mary A. Terry owned premises, a part of which are now owned by the plaintiff. On the date mentioned the defendants deeded to the plaintiff the premises which he now owns, that have any relation to this case, “with all the privileges, and appurtenances thereof. ’ ’ ■ The premises of one Courtney, of the defendants that were not conveyed to the plaintiff ánd the premises so conveyed were supplied with water from a spring on premises of the defendants not conveyed. The water was carried from the spring through a half inch lead pipe, the premises conveyed to the plaintiff were lower than the others and were the last to be supplied, and by the conveyance to him the plaintiff took, as an appurtenance to the land conveyed to him, a right to the flow of water to his premises in and through the pipe as theretofore.

At the time of the conveyance there was a coupling in the pipe on premises not conveyed, which coupling was for the purpose of the defendants’ supply of water, and which obstructed the free flow of water in the pipe, and left an opening of only about one-fourth of an inch, through which water found its way to the premises conveyed, hereinafter called the plaintiff’s premises.

The plaintiff claims that the defendants have invaded his right or easement as above set forth. After taking his deed, the plaintiff himself made changes which necessarily affected the pressure and flow of the water where he received it for his uses. He originally received it only through the end of the lead pipe, which was pinched up so as to leave an opening of about one-eighth of an inch only. The pinching of the end of the pipe was to regulate the flow of water at the plaintiff’s premises so that too much water would not be drawn from the other premises higher up supplied by this water system, as we may call it. Since the conveyance to him, the plaintiff has substituted, for the pinching of the pipe, a faucet to regulate the flow, and has installed a tank into which the water runs at a point nine or ten feet higher than the original point of discharge. Meantime, in 1910, the defendants substituted a “Globe Valve” for the check on their premises that was in use when the deed in question was given, and by means of it have since held back the water to which they were entitled. The plaintiff claims and asserts in his bill that the defendants have held back more water than they were entitled to, that they have interfered with the flow of water to his premises and have invaded his right.

The master reports that the pipe, in a hot-house on the plaintiff’s premises, has frequently been frozen in winter and that lizards have frequently come through the pipe and that once a frog in the pipe stopped the water. The master reports that the plaintiff has never taken up the pipe on his premises to examine it for obstructions, and that, so far as the evidence shows, the plaintiff’s shortage of water may have been entirely due to an obstruction in that portion of the pipe. The master further says that he cannot find on the evidence that any acts of the defendants have had the effect of diminishing the quantity of water delivered at the plaintiff’s premises below that which he was entitled to receive under the conditions existing at the time the plaintiff took his deed.

There is no finding of an invasion of the plaintiff’s right by the defendants nor of facts which, as matter of law constitute such an invasion, unless the substitution of the “Globe Valve” for the thing that had formerly been in use as a check on the defendants’ premises, constituted, in itself, and regardless of its effect and use, an invasion of the plaintiff’s right or easement, as matter of law. And the “Globe Valve” did not in itself, as matter of law, constitute an invasion of the plaintiff’s easement; for the right to maintain an obstruction to hold back the water to which the defendants were entitled pertained to the right of the defendants rather than to that of the plaintiff and the obstruction in use when the deed was given was not itself the defendants’ right, but the measure of it, and a change in the character of the obstruction is to be deemed merely an incident to their right, unless it interfered with the right of the plaintiff. Arnold v. Farr, 61 Vt. 444, 448, 17 Atl. 1004; Baker v. Frick, 45 Md. 337, 24 Am. Rep. 506; Ames v. Shaw, 82 Me. 379, 19 Atl. 856; Hartman v. Fick, 167 Pa. 18, 31 Atl. 342, 46 Am. St. Rep. 658; Dyer v. Walker, 99 Wis. 404, 74 N. W. 79.

In view, therefore, of what the master says he is unable to find, and of what, he, in fact, fails to find, the question of the burden of proof here becomes the important one, for if the burden was on the plaintiff to show the invasion of his right that he asserted in his bill of complaint, the decree dismissing the bill must be affirmed, unless error that calls for a reversal inheres in findings to which the plaintiff excepted. And the burden of showing the invasion of his right which he alleged was on the plaintiff. Rutland Ry., Light & Power Co. v. Williams, 90 Vt. 276, 98 Atl. 85; Harrison v. Northwestern, etc., Ins. Co., 80 Vt. 148, 66 Atl. 787; Collins v. St. Peters, 65 Vt. 618, 27 Atl. 425. In the ease last cited the doctrine of the burden of proof is applied to a ease like this, for there on page 622 of 65 Vt., on page 426 of 27 Atl., it is said, in the clear language of Judge Thompson, that one having an incorporeal hereditament, like an easement, may maintain an action to vindicate his claim to it “if he can show a violation of his right to enjoy it,” although he may not be able to show actual damage. And in Arbuckle v. Ward, 29 Vt. 43, it appears on page 50 that Judge Poland, who tried the case below, placed the burden of proof in a case much like this distinctly upon the plaintiff or actor, and in this court the charge was approved.

We now consider the plaintiff’s exceptions to the findings of the master and to his failure to find as requested in certain respects. The plaintiff made certain requests that related to times prior to 1910, when the “G-lobe Valve” was put in by the defendants, and excepted to the non-compliance of the master with these requests in whole or in part. It is not however material to examine the requests and the findings in these regards, since the gist of the complaint and of the argument relates to the substitution, in 1910, of the “Globe Valve” for the obstruction or check existing at the time when the orator took his deed. However, the requests referred to were substantially complied with except in matters as to which the evidence compelled or warranted findings at variance with the requests. We have so far referred particularly to requests one and two.

The plaintiff’s third exception was to the failure of the master to comply with a request embodying the proposition that the water never at any time froze except in the cellar of the defendants. But there was testimony tending to negate this proposition, and the master was not in error in refusing to comply with the request containing it.

The plaintiff’s fourth exception was ,to the refusal of the master to find, on the uncontradicted evidence, that the check valve installed in 1910, was a device by which no one could be sure as to the amount of checking produced by turning it, unless it was entirely open or entirely shut. But there was evidence tending to show that experiments would determine that matter to a reasonable certainty, and the master was right in refusing the request.

The fifth exception was to the refusal of. the master to comply with a portion of a request to the effect that the “G-lobe Valve” had been used to diminish the flow of water to the plaintiff’s premises below that to which he was entitled under his deed.’ But the master was not compelled to find as requested, for there was evidence having a contrary tendency.

The sixth and seventh exceptions were to the failure of the master to comply with requests as to which the direct evidence and the legitimate inferences were conflicting, and they therefore raise no question of law.

The eighth exception was to the failure of the master to comply with a request in part immaterial and in part contrary to some of the evidence. It was properly refused.

The ninth and tenth exceptions were to the failure of the master to comply with requests as to freezing on the plaintiff’s premises and protection from freezing by the plaintiff. But in the'state of the evidence the plaintiff was not,'as matter of law, entitled to have them complied with. The eleventh exception recurs to a matter already considered and disposed of.

The twelfth exception so far as the plaintiff argues it was to the failure of the master to comply with a request that if. he found, in accordance with the defendants’ testimony the obstruction at the coupling on the defendants’ premises was a piece of leather with a one-fourth inch opening through it. The master found the size of the opening to be one-fourth .of an inch, and it is of no consequence that he made no finding as to the material through which the hole was. 1

The thirteenth exception was in substance the same as the fourth, and the fourteenth and fifteenth exceptions, so far as they raised any material questions, were in substance like the fifth, which we have sufficiently considered.

The sixteenth exception was to the failure of the master to comply with a request containing the proposition that there was no freezing of the main pipe where it passed through a certain hot-house on the plaintiff’s premises. .Howev'er', there was testimony of such freezing, and the entire request was properly disregarded. ' '

Other exceptions were taken but are not briefed and are therefore waived.

As has been said, one Courtney was another taker of water from the system in question, but no question of law in the case requires further reference to him or to his right or to his use thereof.

Decree affirmed, and case remanded.