The opinion of the court was delivered by
Ross, J.
August 26, 1857, the proprietors and owners of the aqueduct in East Rutland, by indenture, conveyed to the plaintiff their aqueduct, with all their rights and privileges in taking and conveying the water to their several places of abode, on certain specified conditions and covenants. It is necessary to consider only two of these covenants, in the determination of the questions arising in this case. In the first, it is covenanted that “ the several proprietor’s of posts in the aqueduct, shall at all times be entitled to [165] draw water from the new aqueduct,” which the village of Rut-land covenanted to lay within one year thereafter, “ in such quantities, and upon the payment, annually or se.mi-annually, of such sum by each, as shall be determined by a joint committee of six,” which was to be appointed in equal numbers by the parties to the indenture. By this covenant the proprietors of the aqueduct secured to themselves the right to be first supplied with water from the relaid aqueduct, upon the payment of the rent which should be determined by the joint committee. If at any time there should not be sufficient water to supply all the inhabitants of the village, the village could not withdraw the water from the proprietors of posts in the old aqueduct, to enable it to supply itself or the inhabitants of the village other than post-holders. Immediately following this is the further covenant, “ that the party of the second part [the plaintiff], except as above stipulated, shall have the sole control of the distribution and disposition of the water conveyed in said aqueduct, andnnay receive and collect all sums for the use or rent of said water, and may require of those who use the water, payment thereof in advance.” These two covenants, construed together, give the entire control and management of the aqueduet to the plaintiff, subject to the right secured to the post-holders in the old aqueduct, to be first supplied with such quantities of the water, and upon the payment of such rent, as the joint committee should determine. The plaintiff is a corporation, and can act only through its agents. Hence these covenants, subject to the limitations named, gave the control of the distribution and disposition of the water, and the collection of the rents, unto such of the agents of the plaintiff as it should appoint, or be empowered* to appoint, for that purpose. The joint committee contemplated by these covenants, was duly appointed in July, 1858, and in August of that year, acted upon the matter submitted, and reported to the parties their action, in six resolutions. Their report was so far accepted, as to be acquiesced in by both parties, and thereupon became binding upon both. By the first resolution, the committee fix the quantity of water which each post-holder shall be entitled to draw, and the rent to be paid for such quantity, '['he quantity is determined by the number of [166] persons composing the family of each post-holder ; and the rent is varied with the number of persons in each post-holder’s family. The committee did not in terms express the uses for which the family should be supplied with water, but did provide that if the water was used for a horse or cow by any of the post-holders, such post-holders should pay an additional sum. From this and the other provisions of the resolution, it is apparent the committee intended that each post-holder should be supplied with a quantity of water sufficient to answer all the then uses to which the water was put by such families, — a quantity sufficient for all their then domestic purposes. No restriction is put upon the post-holders in respect to the manner in which the water was to be applied to those uses. No doubt the quantity supplied to different familes constituted of the same number of persons, would vary somewhat under this resolution. Some such families would use more water for the same purpose than others ; and might also use it for some purposes which others did not. Notwithstanding such slight inequalities in the quantity to be supplied to such families under this resolution, the committee adopted it as approximating as nearly as was practicable to furnishing an equal quantity to each post-holder whose family consisted of the same number of persons. No provision was made, or attempted to be made, in this resolution, for the quantity of water, or the rent to be paid, for new uses to which the post-holders might thereafter desire to put such‘water. The third resolution provides, that the post-holders might receive this quantity of water by gauge or stop-cock, at their option ; but in case, it was received by gauge, the gauge was to be regulated and controlled by the water commissioners. In every resolution but one, the water commissioners are recognized as the board or agents of the plaintiff, who were to have the control and management of the aqueduct, regulate the distribution of the water, fix the rates to be paid by all except old post-holders, and to collect the rents. The last resolution provides that the owners of posts under the old aqueduct company, shall be subject to all the rules, regulations, and directions of the water commissioners, not inconsistent with the resolutions. In order to make the rule established by the first resolution in regard to the quantity of water to be drawn [167] by tbe owners of posts, and the rent to be paid by them, somewhat flexible, so it would be adapted to new uses that might arise, and meet the varying wants and necessities of all who should be supplied with water from said aqueduct, the second resolution provides, that the rates established by the first resolution shall, after June 20, 1859, rise or fall in the same ratio as the rates established by the water commissioners for non-post-holders should be raised or lowered, but never so as to exceed the rates charged to non-post-holding recipients of the water. By these two resolutions, the joint committee fix the rates of rent to bo charged to those holding posts in the old aqueduct, and the basis, or rule, by which those rates may be varied from time to time. It is objécted on the behalf of the defendant, who is a post-holder, that by the second resolution the joint committee undertake to delegate the power to fix the rates to post-holders, to the water commissioners. But we do not so regard it. In that resolution the joint committee establish for themselves and .the post-holders, a basis by which the ratio for varying the rates named in the first resolution is determined. When this ratio is applied to the rates in the first resolution, it gives the rates to be charged to the post-holders as established by the joint committee, and not as established by the water commissioners. The water commissioners cannot establish, arbitrarily, the rates to be charged to the post-holders. They can only charge them the rates established by the joint committee, as found by applying the committee’s rule in regard to the raising or lowering the rates named in the first resolution, to the rates established by the committee for that year. We think it was competent for the joint committee to establish a rule for varying the rates named in the first resolution, and that the second resolution is not a delegation of the power conferred on the joint committee to the water commissioners. By applying this rule to the rates established in the first resolution, to the rates to be charged to the post-holders who desire to use the water for the new use of cleansing a modern water-closet, it operates to raise those rates 15.00 per year for such families. It is objected by the defendant, that the use of water for the last-named purpose, is for famil
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The opinion of the court was delivered by
Ross, J.
August 26, 1857, the proprietors and owners of the aqueduct in East Rutland, by indenture, conveyed to the plaintiff their aqueduct, with all their rights and privileges in taking and conveying the water to their several places of abode, on certain specified conditions and covenants. It is necessary to consider only two of these covenants, in the determination of the questions arising in this case. In the first, it is covenanted that “ the several proprietor’s of posts in the aqueduct, shall at all times be entitled to [165] draw water from the new aqueduct,” which the village of Rut-land covenanted to lay within one year thereafter, “ in such quantities, and upon the payment, annually or se.mi-annually, of such sum by each, as shall be determined by a joint committee of six,” which was to be appointed in equal numbers by the parties to the indenture. By this covenant the proprietors of the aqueduct secured to themselves the right to be first supplied with water from the relaid aqueduct, upon the payment of the rent which should be determined by the joint committee. If at any time there should not be sufficient water to supply all the inhabitants of the village, the village could not withdraw the water from the proprietors of posts in the old aqueduct, to enable it to supply itself or the inhabitants of the village other than post-holders. Immediately following this is the further covenant, “ that the party of the second part [the plaintiff], except as above stipulated, shall have the sole control of the distribution and disposition of the water conveyed in said aqueduct, andnnay receive and collect all sums for the use or rent of said water, and may require of those who use the water, payment thereof in advance.” These two covenants, construed together, give the entire control and management of the aqueduet to the plaintiff, subject to the right secured to the post-holders in the old aqueduct, to be first supplied with such quantities of the water, and upon the payment of such rent, as the joint committee should determine. The plaintiff is a corporation, and can act only through its agents. Hence these covenants, subject to the limitations named, gave the control of the distribution and disposition of the water, and the collection of the rents, unto such of the agents of the plaintiff as it should appoint, or be empowered* to appoint, for that purpose. The joint committee contemplated by these covenants, was duly appointed in July, 1858, and in August of that year, acted upon the matter submitted, and reported to the parties their action, in six resolutions. Their report was so far accepted, as to be acquiesced in by both parties, and thereupon became binding upon both. By the first resolution, the committee fix the quantity of water which each post-holder shall be entitled to draw, and the rent to be paid for such quantity, '['he quantity is determined by the number of [166] persons composing the family of each post-holder ; and the rent is varied with the number of persons in each post-holder’s family. The committee did not in terms express the uses for which the family should be supplied with water, but did provide that if the water was used for a horse or cow by any of the post-holders, such post-holders should pay an additional sum. From this and the other provisions of the resolution, it is apparent the committee intended that each post-holder should be supplied with a quantity of water sufficient to answer all the then uses to which the water was put by such families, — a quantity sufficient for all their then domestic purposes. No restriction is put upon the post-holders in respect to the manner in which the water was to be applied to those uses. No doubt the quantity supplied to different familes constituted of the same number of persons, would vary somewhat under this resolution. Some such families would use more water for the same purpose than others ; and might also use it for some purposes which others did not. Notwithstanding such slight inequalities in the quantity to be supplied to such families under this resolution, the committee adopted it as approximating as nearly as was practicable to furnishing an equal quantity to each post-holder whose family consisted of the same number of persons. No provision was made, or attempted to be made, in this resolution, for the quantity of water, or the rent to be paid, for new uses to which the post-holders might thereafter desire to put such‘water. The third resolution provides, that the post-holders might receive this quantity of water by gauge or stop-cock, at their option ; but in case, it was received by gauge, the gauge was to be regulated and controlled by the water commissioners. In every resolution but one, the water commissioners are recognized as the board or agents of the plaintiff, who were to have the control and management of the aqueduct, regulate the distribution of the water, fix the rates to be paid by all except old post-holders, and to collect the rents. The last resolution provides that the owners of posts under the old aqueduct company, shall be subject to all the rules, regulations, and directions of the water commissioners, not inconsistent with the resolutions. In order to make the rule established by the first resolution in regard to the quantity of water to be drawn [167] by tbe owners of posts, and the rent to be paid by them, somewhat flexible, so it would be adapted to new uses that might arise, and meet the varying wants and necessities of all who should be supplied with water from said aqueduct, the second resolution provides, that the rates established by the first resolution shall, after June 20, 1859, rise or fall in the same ratio as the rates established by the water commissioners for non-post-holders should be raised or lowered, but never so as to exceed the rates charged to non-post-holding recipients of the water. By these two resolutions, the joint committee fix the rates of rent to bo charged to those holding posts in the old aqueduct, and the basis, or rule, by which those rates may be varied from time to time. It is objécted on the behalf of the defendant, who is a post-holder, that by the second resolution the joint committee undertake to delegate the power to fix the rates to post-holders, to the water commissioners. But we do not so regard it. In that resolution the joint committee establish for themselves and .the post-holders, a basis by which the ratio for varying the rates named in the first resolution is determined. When this ratio is applied to the rates in the first resolution, it gives the rates to be charged to the post-holders as established by the joint committee, and not as established by the water commissioners. The water commissioners cannot establish, arbitrarily, the rates to be charged to the post-holders. They can only charge them the rates established by the joint committee, as found by applying the committee’s rule in regard to the raising or lowering the rates named in the first resolution, to the rates established by the committee for that year. We think it was competent for the joint committee to establish a rule for varying the rates named in the first resolution, and that the second resolution is not a delegation of the power conferred on the joint committee to the water commissioners. By applying this rule to the rates established in the first resolution, to the rates to be charged to the post-holders who desire to use the water for the new use of cleansing a modern water-closet, it operates to raise those rates 15.00 per year for such families. It is objected by the defendant, that the use of water for the last-named purpose, is for family purposes, and included in the rates established [168] in the first resolution. The case finds that at the time those rates were established, no such use of the water was made, or contemplated to be made, by any of the post-holders or others drawing water from the aqueduct. We think that this is a new use of the water, which is not provided for by the rates named in the first resolution, except by the application of the rule established in the second resolution. This we think is clearly so, when the post-holder elects, as the defendant has done, to draw the water he uses by means of a stop-cock. He must confine the water thus drawn, to such family uses as the water was ordinarily put when the rates were established, if he would not subject himself to the application of the rule established in the second resolution. If he received his water through a gauge, it may be that the plaintiff would have no right to inquire in regard to the use to which he put the water after it issued from the gauge. But that is not this case. The defendant, to enable him to put the water to this new use, draws it by means of a stop-cock, and if he does so for this use, which has arisen since the rates named in- the first resolution were established, he must submit to the payment of such additions to those rates as are made by the application thereto of the rule laid down in the second resolution. This view of the case renders it unnecessary to consider whether in a proper case, a new joint committee could be created by the parties to the indenture, to determine the rights and liabilities of the old post-holders ; and no opinion is expressed in regard thereto. It also renders the fact found by the court, that the defendant drew no more water through the stop-cock during the year ending June 20,1872, than was delivered to him during the previous years when he received the water through a gauge — immaterial. On the facts found by the court below, these views give the plaintiff the right to demand of the defendant the amount claimed by it for the use of the water for the year ending June 20,1872.
II. It is further claimed by the defendant, that if liable at all on the facts found, he is not liable to this action, founded on the act of 1858. The act of 1858, appears to have been passed to enable the plaintiff to elect water commissioners, eo nomine, to define their duties, and to provide a remedy for damages sustained [169] from persons using the water without conforming to the regulations of the water commissioners, and paying for the use of the water in advance. As we have seen, the indenture confers upon the plaintiff the right to make rules and regulations in regard to the use of the water, and to demand and receive the lawful rent therefor in advance. Hence the rule requiring the defendant to pay in advance, was not repugnant to the indenture. We think it is quite evident, that the section of the statute on which this suit was brought, was intended to furnish a remedy for the recovery of the damages the plaintiff might sustain by reason of any person (post-holder or otherwise) taking and using the water without right, in other words, without having put himself in the position to demand from the water commissioners a permit to use the water, by tendering the rent which the plaintiff had the right to exact. When the act says if any person shall use the water without the permission of the water commissioners, he shall be liable to the action named, it evidently has reference to a person who should use the water without the right to demand such a “ permit ” as the water commissioners are authorized in the preceding section to grant. The sums which the plaintiff would have the right to receive from most persons by the way of rent, would necessarily be small; and unless it could recover full costs against one who should take and use the water without right, it might as well not attempt to enforce their collection by suit. Hence the necessity of some such remedy. The right of the legislature to pass the act and grant the remedy is unquestioned. The case finds that the defendant refused to pay for the year ending June 20, 1872, the amount which, we hold the water commissioners rightly demanded from him, and that he continued to use the water without obtaining from them a permit, or tendering them a sufficient sum of money to entitle him to a permit. On these facts, notwithstanding the water commissioners did not forbid him to use the water, nor cut him off from drawing the water for the purposes he desired to use it, he was using it without permission, within the meaning of that word as used in the act, and subjected himself to this action. The pro forma judgment of the county court [170] is reversed, and judgment rendered for the plaintiff to recover eleven dollars and fifty cents, with interest since June 20, 1871, and costs.