Arbuckle v. Ward

The opinion of the court was delivered by Redfield, Ch. J. The general rule of law by which the right to draw water from a fountain or spring upon the land of another, and through the land of the owner of such spring, and to dig in the soil for the purpose of repairing or relaying the aqueduct, may be acquired by fifteen years’ uninterrupted use, under claim of right, is familiar law in this state.' And that this use will fix and define the mode and conditions of such right we have no-doubt. As if the party has been accustomed to repair the aqueduct and to allow the owner of the land to take water from the same. This use will define the 'amount of water which the party has the right to take. These points are all familiar law, and have been expressly decided. Watkins v. Peck, 13 N. H. 360, seems to cover all these points. The extent of the right acquired by fifteen years’ use will depend upon the claim of the plaintiff, and the acquiescence of the defendant, (and those from whom he derives title,) in such claim. For the purpose of showing both the claim and the acquiescence, the original contract by which, the use originated is ordinarily the best of evidence. And if clearly proved, and the use has all along been consistent with the original contract, it ought to be referred to it, and not be allowed to establish a right to either more or less; for it may well be presumed that the parties have acted in faith of the original contract. And the effect of the use will be to establish the rights of the parties according to the terms of the contract, and, by prescription, to give it the same validity and force as if it had been originally by deed, in due form. As if the contract originally allowed the party to use water for one house, or such quantity as the owner of the land did not require for his own use, and the use has been consistent with such conditions, it will be regarded as so qualified. But it is not essential to the prescription that any original — 53 — contract should be shown. For the mere use, if so open and notorious as obviously to attract the notice of the owner of the soil, or if expressly shown to have come to his knowledge, will prima facie establish the right, and it will be incumbent upon the owner to show in some mode that it was not used under a claim of right to the water, or that he did not so understand it, and was not bound to so regard it from the nature and extent of the use. But the mere fact of showing that the use begun by permission of the landowner is not alone sufficient to defeat the prescription. For if the permission was a perpetual gift, or an unlimited gift or permission to use, and continued for fifteen years, the right is perfected. This is analogous to the statute of limitations by the possession of land. If the party enters into the use of land under any form of tenancy, he is acquiring no right by his continued occupancy* For the tenancy implies the recognition of the permanent right of the landlord. But if he enter as a purchaser, having paid the full price, or under a gift, fifteen years’ possession perfects his title* But if payment of the price was a condition of the title or right to retain possession, this condition must be complied with. So that the terms of the contract by which the party entered are of paramount importance in determining the rights acquired by the use or possession. And the occupancy must have been under claim of right. These general principles seem to us to be established by the uniform course of the decisions upon the subject, and to be recognized by all the elementary writers, and not to require particular confirmation by citations of authority. They are, so to speak, the fundamental principles of the law of prescription. II. In regard to the application of these principles to the present case, it seems that the testimony on the part of the plaintiff tended to show “ Buckley was to give the spring,” i. e., to devote it to the common use’ of the three persons, or to give it to each, to the extent of his particular wants. Some of the witnesses say that the form Buckley adopted in expressing the right of the plaintiff and his grantors was “ that Davis was to have the use of the spring always, by bearing one-third of the expenses of bringing the water to his house,” &c. Davis himself testified that “ Buckley agreed to give the use of the water forever” on the condition above — 54 — named. Under this grant Davis and his grantees have used the water more than fifteen years without interruption. And by the eharge of the court the jury must have found that, by the original agreement, the plaintiff and his grantors Were to have a permanent and lasting right to draw water from the spring, and they had so claimed and exercised it for more than fifteen years without interruption, unless by the interposition of the estate which will be noticed hereafter. We think, therefore, that the plaintiff’s right did become perfected, so far as the nature of his use and claim of right is concerned. That is all which could be expected in any case. It is not like the case of a use of water from year to year upon a rent, or by the mere indulgence of the owner without rent, which could create no right, as was fully explained to the jury. Nor was it necessary to submit to the jury the question of a grant, for the prescription of right is perfected by the fifteen years’ use, with the claim of right and the acquiescence of the owner of the land. Nor does it seem to us that the fact that Buckley used the Water jointly with the plaintiff, will defeat the presumption arising from his use and that of his grantors. It might affect the question of evidence to some extent. It might render it more probable that it was merely a permissive use intended to be temporary, and revocable at will, in fact as well as in law. But the fact being found that the plaintiff and his grantors used the water Under a claim of a permanent right, and that Buckley and his grantees acquiesced in such right or claim of right, it certainly could not defeat the prescription that the ground of the acquiescence was that the plaintiff and his grantors should bear one-third or one-half of the expense of bringing the water to the plaintiff’s house; although it might have the effect to impose that as an obligatory condition of the right to use the water. If one should allow another to occupy laud which he owned in fee, as tenant in common under a contract to give him an undivided moiety of the land, and this occupancy should be continued fifteen years under a claim of ownership as tenant in common, and this acquiesced in by the owner, the title would undoubtedly become perfected. III. The decision in Ripley v. Yale, 18 Vt. 221, goes no — 55 — further, we apprehend, than to determine that the vendee of land entering into possession is presumed to hold in subordination to the title of his vendor until he pays the price agreed; Greenough v. Munson, 9 Vt. 37, But if he pays the price down, or enters as a donee of the land, and continues to hold under such claim for fifteen years, there can be no doubt he acquires perfect title. IV. But it lias been objected, that this use has been covert, We do not perceive any thing of that character in the nature of the use. It is the ordinary form of taking water from a spring, so far as we know. And we suppose it could hardly fail to come to the knowledge of the occupier of the land. It seems very obvious that it was in fact known to Buckley, and t© Mrs. Buckley and her grantees. That is, it was known to each of them that such a spring existed, and that there was an aqueduct connected with it. We do not think the state of the evidence raised any doubt upon the point of knowledge, or that it should have been put to the jury. V. We know of no rule of law by which the death of Buckley would interrupt the prescription, any more than the casting of a descent or the intervening of any other estate should interrupt the running of the statute of limitation in other cases, when it has once begun to run which is not claimed; nor is any authority cited to show that Buckley’s death should have this effect in this case. We think it cannot. It is true the heiis or devisees of Buckley might then have interfered. But unless they did the prescription must continue to run, unless at the least they showed some inability to interfere. VI. In regard to the reservation in the deed of Eunice Buckley to Stuart Brown, excluding him, as is claimed, from all use of the spring during the life of Mrs. B., we do not so understand the reservation, It is, in terms, a mere reservation of the right to take water in the aqueduct, in the same manner it then was, to her house. This did not cover the whole water, or the water used by the plaintiff. Brown might have sued the plaintiff, or cut off the water the next day. It would seem from 2 Greenl. Ev. sec. 545, Cross v. Lewis, 2 B. & C. 686, that even if it had reserved the spring it would not have interrupted the prescription, although, no doubt, the existence of such a disability would have the effect to — 56 — defeat it if existing at the time the prescription begins, unless brought to the knowledge of the owner of the fee, and unless the adverse use is of such a chai-acter as to give a right of action to the owner of the fee. But it is not needful to decide these questions here, as they do not properly arise. YII. We do not perceive why the defendants did not obtain the benefit of their evidence in regard to any defect of the mode of carrying the water by plaintiff in a lead pipe, or of his assent to the defendant’s taking the water, and taking it in the mode he did, by the charge given to the jury. The form of the charge is not important; it is the substance only which we attempt to revise. Nor is the party entitled to dictate the particular form in which such questions shall be brought to the consideration of the jury. And there certainly did not seem to be any evidence in the case tending to show that the plaintiff understandingly, or to the misleading of the defendant, assented to the defendant’s use of the water, except in subordination to his own right, or that in assisting in inserting the defendant’s conduit, he could fairly be said to have absolutely bound himself to abide the consequences, or that the defendant so understood him or was misled in any degree by that circumstance. But if there were any doubt whether the evidence had any such tendency, it all seems to us to have been properly submitted to the jury, and we could not feel justified in ordering a new trial upon that ground. VIII. We do not comprehend how Bradshaw’s going out of the concern could effect the plaintiff’s right to the water. That continued the same as before; the use was the same as far as we can learn from the testimony, and the claim seems to have been found by the jury to be the same through the full term of fifteen years; that is a claim of a perpetual and permanent right. The modification of the proportion of the expense after Bradshaw went out, might raise some question whether, at the end of the first fifteen years, the plaintiff was bound conclusively to be at half the expense of the aqueduct to his own house, as he had not borne that proportion for the full term. But probably his having assented to that modification would affect the claim of right from the beginning. IX. Those cases in which it is laid down that, where the use is by permission of the owner of the dominant tenement, no right is — 57 — acquired, require to be understood with some qualification, and are to be limited to tbe time when the permission is given, or else to the kind of permission. It is undoubtedly true that if one have enjoyed an easement ever so long under what is apparently a claim of right, if he then ask permission of the owner of the land for the continuation of such easement, this defeats his former prescription, and should attach, perhaps, a similar quality to his future enjoyment, i. e., that it is held by the continued permission of the owner of the land. So too in regard to the kind of permission by which the enjoyment begins ; if it is for a rent, or temporary, what the civil law denominates a “precarious enjoyment,” no right is acquired. But if it be a permission by gift or upon sale, with an acknowledgement of the price paid, it is none the less an enjoyment of the easement under claim of right and with the acquiescence of the owner of the land in the existence of the right. And this is precisely what is requisite to create a prescription. Permission and acquiescence in this sense are synonymous and are of the very essence of a prescriptive right when continued for the term of the statute of limitations. Judgment affirmed.