Magoon v. Harris

46 Vt. 264

• Court: Supreme Court of Vermont
• Decided: October 15, 1873
• Status: Published

Opinion

The opinion of the court was delivered by

Wheeler, J.

The rights of these parties involved in this case, are to be determined upon the effect of the deed of the defendant to Magoon and Flint. There is no question but that parol evidence is admissible, and proper to be considered, to ascertain all the circumstances of situation and condition of the subject of the grant at the time the grant was made, in order that what there was that could be granted may be 'seen, and then the grant be read to find exactly what, by its terms, was granted. The evidence shows that living water came by natural flow to the surface of the ground at various places in the ravine whore the defendant had been accustomed to water his cattle, on the west side of his farm, and does not show that water so came to the surface at any place within the territory mentioned outside of that ravine. There may have been such places at points within that territory that there is no controversy about in this case ; and if there are, no finding or decision with reference to them, is now made. At the places where the defendant dug and found living water, the water did not flow to the surface of the ground, but percolated or flowed in hidden channels through the ground. The controversy is as to what rights to water at these several places the deed conveyed. It grants the privilege of talcing water from springs ; and does not grant any right to any other water. A spring of water is a place where water by natural forces usually issues from the ground. The places where the defendant reached water by orifices in the ground, and where the water did not flow to the surface, are wells, and not springs. The grant, therefore, was of a privilege of taking water from the places in the ravine where the grantees did take it from without controversy, and not from these places where the defendant dug. The evidence does not satisfactorily show that the digging of these wells by the defendant, interfered with the water of the springs in the ravine in any degree; and it is not necessary to determine whether, if it did so interfere, the orators would have a right to step the interference, and to a remedy to prevent the defendant from continuing it. As the facts now appear, the defendant has the right to take water from the wells the evidence shows him to have dug, and the orators have shown no right to have him restrained, nor any other ground for relief to them.

The decree of the court of chancery is affirmed.