
    James B. Lawrie, et al. v. W. H. Silsby, et al.
    October Term, 1903.
    Present: Rowell, O. J., Tylek, Munson, Stafford, and Hasélton, JJ.
    Opinion filed February 13, 1904.
    
      Riparian Rights — Prescription—Question of Fact — Corporation — Organization—Articles of Association — Signing— Capacity to- Sue.
    
    The presumption of a grant from long continued enjoyment arises only where the person against whom the right is claimed could have lawfully interrupted or prevented the exercise of the supposed right.
    Persons who, for more than forty years, under a claim of right, have taken water by a pipe from a brook on a riparian lot to their several nonriparian farms, have not thereby acquired the right to do so as against an upper riparian owner.
    .Persons who, for more than forty years, under a claim of right, have taken water hy a pipe from a brook on a riparian lot to their several nonriparian farms, have acquired a prescriptive right to do so ,as against the owner of said riparian lot, although the water was taken, in the first instance, by license of said owner, it appearing that such license was unlimited in point of time.
    The nonriparian grantees of a riparian owner of the right to take water from a brook for nonriparian use can maintain an action in their own name against an upper riparian proprietor for polluting the water to their damage.
    Riparian owners are entitled, as against each other, to a reasonable use of the water of the stream.
    Whether the use of the water of a stream by a riparian owner, is reasonable, is a question of fact.
    Since ’Chapter 85, of the Compiled Statutes' provided for incorporation by written articles “subscribed by the members,” such subscription was a condition precedent to incorporation.
    Since Chapter 85 of the Compiled’ Statutes provided that corporations created thereunder, “when organized!,” should be capable to sue and be sued; unless organized, such corporation cannot be sued, though its articles are subscribed by its members.
    Appear in Chancery, Washington County. Heard at Chambers on bill, answer, master’s report, and exceptions thereto1. Start, Chancellor. Decree, pro forma for the orators. The defendants appealed.
    The master reported that prior to the year 1854, the then' owners of the property in the Ox Bow District joined together ini laying an aquedpct from the stream at a certain point in the Dawrie lot to their respective farms and buildings, and shared in the expense and ownership thereof, and thereby conveyed water from said stream to said farms and buildings for domestic and farm uses; that said ’farms and buildings were theraafterwiards so supplied with water, for the purposes named, until, in the year 1854, the owners of said aqueduct wishing to have their respective rights better defined and understood and enforceable in law between themselves, their heirs and assigns, did then adopt articles of association under the laws of this State. The master sets forth the articles of association so adopted, but they do not appear to have been signed.
    On the 17th day of October, 1887, the defendant, William H. Silsby, became the sole owner in fee of the Hale lot, which is situated immediately north of the Lawrie lot, and between that time and the year 1890, said Silsby cut and removed from the Hale lot most of the timber growing thereon and converted the land into pasture in which he afterwards kept thirty to forty head of cattle and horses, all of which had access to the brook in question, which flowed south through the Hale lot and across the Lawrie lot.
    On the 21st day of November, 1894, said Silsby leased for the term of ninety-nine years to1 the defendants, E. T. Bailey and A. W. Silsby, a portion of the land lying on said stream running through the Hale lot to. be flowed and used for a private fish pond and for trout only. The lessees were to control the land for a distance of thirty feet bade from, the water’s edge all around said pond. They also had the right to control the stream1 running into said pond up as far as they might desire towards its source for the purpose of hatching and protecting trout therein.
    In the fall of 1894 said lessees erected a dam across said stream near the southerly boundary of the Hale lot, and by means of the same the wtater has been set back and forms a pond, the area of which is between six and seven acres, with an average depth of over six feet, and containing, in round numbers, nearly 14,000,000 gallons of water. In the construction of said dam a spillway was provided at its top through which it was expected that the natural stream would flow after the dam was once filled, but m’uch of the time since its completion, through loss of water from the pond by leakage of the dam and evaporation, the surface of the water has been considerably below the spillway, and at such times the water that has flowed from the dam in the natural bed of the stream below! that point, has been only such water as has escaped through said leakage.
    The master finds that by reason of the storage of water in said pond, the water that flows therefrom' has at all times since the dam was completed been decidedly inferior to' the water in the brook; that in wet seasons; when! the dam overflows, the water is of better quality than in drier seasons when it does not overflow, and when by standing in the pond it becomes to a greater or less extent stagnant. The opinion states the other facts.
    
      Smith & Smith for the orators.
    The orators have the right to have the water of the stream continue to flow in its natural channel unimpaired in quality and undiminished in- quantity to* any material degree, except to satisfy natural wants. Kent. Com., Vol. 3, 439; Chapman v. Rochester, 1 E. R. A. 296; B'ealey v. Sham, 6 East. 208; Bvans v. Merriweatker, 4 111. 495, 38 Am. Dec. 106.
    * After a stream* has run in an artificial channel for the length of time required to gain title to land by adverse possession, the proprietors *on the banks of the artificial stream have all the rights which they would have if they were riparian proprietors on a natural stream. Shepardson v. Perkins, 58 N. H. 354; Major v. Chadwick, n Ad. & El. 571, 39 E. C. E. 169; Watkins v. Peck, 13 N. H. 360; Willimns v. Wadsworth, 51 Conn. 277; Sutcliffe v. Booth, 32 E. J., Q. B. 136.
    
      Rights in a stream may originate ini grant or in prescription, and these may be acquired either by riparian or non-riparian proprietors. Angelí on Watercourses, § 224; Kent Com. Vol. 3, pp. 441-444; Shrewsbury v. Brown, 25 Vt. 197; Tracey v. Atherton, 36 Vt. 503; Perrin v., Garñeld, 37 Vt. 304; Ford v. Whitlock, 27 Vt. 265; Wilcox v. Wheeler, 47 N. H. 488; Finch v. Resbridger, 2 Ver. 390; Matthewson v. Hoffman, 6 L. R. A. 349; Woodbury v. Short, 17 Vt. 387; Belknap v. Trimble, 3 Paige 577; Murchie v. Gates, 78 Me. 300.
    Equity is the proper forum to> abate'a nuisance. Enc. PI. & Pr., Vol. 14, 1118; Am. & Eng., Enc. Law, Vol. 10, 844; Ullbricht v. Fufaula Co., 4 L. R. A. 572; Barton v. Union Cattle Co\, 7 L. R. A. 457; Canñeld v. Andrews, 54 Vt. x; Coffin v. Cole, 67 Vt. 226.
    
      Dunnett & Slack, and R. M. Harvey for the defendants.
    The bill should have been dismissed for want of proper parties. The water system, as the report finds, is the property of the Oxbow Aqueduct Co>. Said corporation is a necessary party. Story, Eq. PL § 72; Pooreiv. Clark, 2 Atk. 515; Sturges & Douglass v. Knapp, 31 Vt. 1; Shaw v. R. R. Co., 5 Gray 162; Stevens v. Austin, 3 Met. 474; Thompson, Corp. § 4471; Smith v. Hurd, 12 Met. 371; Taylor v. Homes, 127 U. S. 489; Detroit v. Dean, 106 U. S. 537; Lcme v. School Dist., 10 Met. 462; Byers v. Coal <Co., 14 Allen 470; Hoe v. Wilson, 9 Wall. 501; Smith v. Bartholomew, 24 Vt. 369.
    None of the orators are riparian owners except Lawrie. Therefore only Lawrie has any of the rights incident to riparian ownership. Gould on Waters, §148; City of Fmporia v. Soden, 37 Am. Rep. 265; Stein v„ Burden, 60 Am. Dec. 465 ; Gardiner v. Newburg, 7 Am. Dec. 526; Plait v. Johnson, 8 Am. Dec. 233.
    
      The defendants have injured no one, they have merely exercised the rights which the law has given them. Tyler v. Wilkinson> 4 Mason 400; -Gould v. Boston Duck Co., 13 Gray 442; Dumont v. Kellogg, 18 Am.. Rep. 102; Pitts et d. v. Lancaster Mills, 13 Met. 156; Davis v. Gretchell, 50 Me. 602; City of Springfield v. Harris, 4 Allen 494; Barre Water Co. v. Carnes, 65 Vt. 626; Wood v. Bdes, 2 Allen 578; Snow v. Parsons, 28 Vt. 459; Barnard et d. v. Shirley, 135 Ind. 547; Haselton v.. Case, 5 Am. Rep'. 715; Pool v. Lewis, 5 Am. •Rep. 526; Thurber v. Martin, 2 Gray 394.
   Rowell, C. J.

The orators, who take water by a pipe from a brook on what is called the Rawrie lot, and conduct it to their several nonriparian farms and buildings for domestic and farm uses, have not' thereby acquired a prescriptive right to do so as against the defendants, who' own the riparian land next above the Rawirie lot, called the Hale lot, though the water has been taken long enough in point of time, for the law of this State is, as well as of many if not most of the other states, and of England, that the presumption of a grant from long-continued enjoyment arises only where the person against whom the right is claimed could have lawfully interrupted or prevented the exercise of the subject of the supposed grant. Shumway v. Simons, 1 Vt. 53; Norton v. Volantine, 14 Vt. 239; Hoy v. Sterrett, 2 Watts. 327, 27 Am. Dec. 313; Holsman v. Boiling Springs Bleaching Co. 14 N. J. Eq. 335; Vliet v. Sherwood, 35 Wis. 229; Nelson v. Butterfield, 21 Me. 220; 28 Am. & Eng. Ency. Law, 1st ed. 1005; Stockport Waterworks Co. v. Potter, 3 H. & C. 300, 325; Chasemore v. Richards, 7 H. L. Cas. 349, 370; Webb v. Bird, 13 C. B. n. s. 841; Sturges v. Bridgman, 11 Ch. D. at page 855.

Here, neither the defendants nor their predecessors in title could lawfully have interrupted nor prevented the talcing of the water, as it does not appear that it infringed their rights.

Murchie v. Gates, 78 Me. 300, 4 Atl. 698, and Holker v. Porritt, L. R. 8 Ex. 107, and L. R. 10 Ex. 59, on which the orators rely to support their claim' of a prescriptive right, are not in point, for there natural streams had been divided so that part of the water flowed in artificial channels, and the law of natural watercourses was applied to the artificial channels, and the plaintiffs were regarded as riparian proprietors the same as though they abutted on the natural branch of the stream; though in the Exchequer Chamber the judgment in Holker v. Porritt was affirmed on different ground.

The orators, therefore, having no prescriptive right against the defendants, must stand on whatever other rights they have against them. The orator, James B. Rawrie, owns the Rawrie lot, and has ever since 1870, and must stand on his right as such owner. The defendants do' not question the right of the other orators as against Rawrie to take the water as they do, but they say nothing as to the legal quality of the right, and the orators claim- that in the circumstances it will be presumed to rest in grant, and we are inclined to> think that this is the true view of the matter. It appears from the report that prior to the year 1854, the then owners of the orators’ farms and buildings, one of wihom was H. N. Chamberlin, the then owner of the Rawrie lot and of the said Rawrie’s farm, joined together in laying the aqueduct in question, and thereby took water from the brook to their respective farms and buildings for domestic and farm uses, and shared in the expense and ownership of said aqueduct; that said farms and buildings were thus supplied with water until the year 1854, when the owners of said aqueduct, wishing to have their rights therein better defined and understood, and better enforceable among themselves, their heirs and assigns, adopted written articles, purporting to be under ch. 85 of the Comp. Sts., wheréby they undertook to form themselves into a corporation under the name of the Ox Bow Aqueduct Company, for the purpose of bringing water by aqueduct from the hill westerly of the “Ox Bow” where most convenient, each agreeing to pay his proportion of the expense, and the cost of keeping in repair to the point where each took the water from the main branch, each putting in and maintaining his own branch, and whereby the number of shares that each, or his assigns, should be entitled to, was fixed, and subjected to assessment from time to time for building and repairing the aqueduct. And water has ever since been, and still is, taken from said brook by means of said aqueduct, to the farms and buildings of the orators for the purposes and uses aforesaid.

Although it appears clearly enough that water was thus taken in the first instance by license of Chamberlin, the then owner of the Bawrie lot, yet it appears with equal clearness that that license was unlimited in point of time, and so understood by all the parties thereto, and that the water has been taken and used for all these forty years and more under a claim of right. This being so, the fact that the use began by permission did not prevent the acquisition of a prescriptive right to take as against the owners of the Bawrie lot. Arbuckle v. Ward, 29 Vt. 43; Blaine v. Ray, 61 Vt. 566, 18 Atl. 189.

But is this prescriptive right sufficient to enable the orators, other than Bawrie, to maintain this bill in their own names? It is not, unless a grant to them from an owner of the Bawrie lot would be sufficient, for they can prescribe for no more than he could grant, as prescription is based upon a supposed grant. This raises the question whether a non-riparian grantee of a riparian proprietor, of a right to take water from the stream for nonriparian use, can maintain an action in his own name against an upper riparian proprietor for polluting the water of the stream to his damage. It has been expressly held in England that he cannot; that though the grant is good against the grantor, it does not enable the grantee to- sue in his own name a riparian proprietor other than his grantor for interfering with his right. This is put upon the ground that the rights of a riparian proprietor in respect to the water are derived entirely from his possession of land abutting on the stream, and are so annexed to the soil that they cannot be granted away apart from the land as far as -other riparian proprietors are concerned. Stockport Waterworks Co. v. Potter, 3 H. & C. 300; Ormerod v. Todmorton Mill Co., L. R. 11 Q. B. 155 Cf.; Kensit v. Great Eastern Railway Co., 27 Ch. D. 122. In Nuttall v. Bracewell, L. R. 2 Ex. 1, it was held that the plaintiff Was a riparian proprietor in respect of a goit; but Pollock, C. B., and Channell, B., adhered to the ground of their judgment in the Stockport Waterworks case, and said that if a riparian proprietor is bound to abstain from interfering with nonriparian grantees of riparian proprietors, as well as from interfering with riparian proprietors themselves, it would well nigh destroy his rights altogether, for that can hardly be called a right that is subject to an indefinite restriction, unascertained and practically unascertainable. They considered that the rights of a riparian proprietor with respect to the stream are limited only by the rights of persons in a similar or an analogous position with themselves. The Master of the Rolls said in Ormerod v. The Todmorden Mill Co., that though the law of flowing water is a part of the common law of England, it' exists only as among riparian proprietors, and does not extend to those whose lands do not abut on streams and rivers.

But in this country it is held in some jurisdictions that an incorporeal right to water may be granted in gross or' made appurtenant to other land, and that the grantee may sue in his own name for a disturbance of his right. Thus, in St. Anthony Falls Water Power Co. v. The City of Minneapolis, 41 Minn. 270, a riparian owner of part of an island in the Mississippi River just above the Falls, sold other land of his not bordering on the river, and with it granted right to take water from the river for use thereon, which the grantees did by means of a canal, and the defendant succeeded to their rights. It was objected that as the city had no land abutting on the river, it was not a riparian owner, and had no riparian rights. But the court said it was entirely immaterial whether the defendant’s rights were riparian or conventional; that it had rights, for the disturbance of which it had a right of action; that it was unimportant whether it was held that the provision in the grantor’s deed in regard to a canal amounted to a division of the river into two courses, or whether, what seemed to be more in accordance with principle and common, sense, it was held that a riparian owner may grant a part of his estate not abutting on the stream; and, as appurtenant thereto, a right to draw water from the stream for use on such land.

In Goodrich v. Burbank, 12 Allen, 459, it was held that an assignable right in gross to take water from a spring on land conveyed could be reserved to the grantor, his heirs and assigns. The court said that water itself may not be the subject of property, but that the right to take it, and to have pipes laid in the soil of another for that purpose, and to enter upon the land of another to lay, repair, and renew such-pipes, is an interest in the realty, assignable, discernable, and devisable; that there are many cases in Massachusetts recognizing the right to1 take water from- a millpond as- a distinct and substantive right, without restriction as to its use at any particular place; and that it was unable to distinguish between a right to taire water from a pond by means of a canal for the purposes of power, and a right to take water from a spring for domestic purposes. Judge Curtis said in The Lonsdale Co. v. Moies, 21 Monthly Law Reporter, 658, a case in the U. S. Circuit Court concerning water rights in the Blackstone River, that incorporeal rights may be inseparably annexed to a particular messuage or tract of land by the grant that creates them, or may be granted in gross, and afterwards, for the purpose of enjoyment, be annexed toi a messuage or land,, and' then severed therefrom by a conveyance of the messuage or land without the right, or a conveyance of the right without the land. This court said substantially the same thing in Rood v. Johnson, 26 Vt. 64, 71, when construing a grant of a water right in a river, thus: “The land is conveyed, and the grantor might, had he chosen, have reserved the use of all the water to himself, or he might have conveyed the use of all or a part of it as a mere incorporeal hereditament, and retained the fee of the land in himself, notwithstanding the maxim that one cannot convey the water separate from the land.”

In Poull v. Mockley, 33 Wis. 482, a grant to one and his heirs and assigns forever of a right to take water from a well on the grantor’s land, was held to create an easement in^ gross, and to be assignable by the grantee. The court followed the Massachusetts cases, and said it saw no- substantial reason why such an easement is not assignable.

In Hill v. Shorey, 42 Vt. 614, it was held that a reservation in a deed, “of the right of taking all the waste water as it now runs into the tub on said premises by aqueduct” froiri a spring thereon, was a reservation of an interest and a right in the spring itself to: the extent named. It is said in Washburn on Easements, 4th ed., 14 and 15, that where water is, as it may be, the subject of sale in gross as a thing of value, it does not seem to be violating any rule of law to regard it as a species of proñt a prendre^ and therefore a subject of separate grant; and that although it might be difficult to raise a prescriptive right of inheritance in the privilege of an aqueduct by personal enjoyment independent of its use in connection with some estate, and although a right to the enjoyment of water from a well or a spring or a river may be gained by custom, since no part of the soil or freehold proper is. thus carried away any faster than it is ordinarily supplied from natural sources, yet, after all, it is an interest in land; and that, as said in Goodrich v. Burbank, above cited, there is no distinction between a right to take water by a canal from a pond for the purposes of power, and the right to take it from a spring in a pipe for domestic purposes.

It would seem to follow that if the right to take water from a spring or a stream' is an interest in the land itself, that such right is grantable as a right in gross or appurtenant, andis assignable, descendable, and devisible; and such, we think, has always been the view entertained and practiced upon in this State. Situated as we are, with so. many springs and' streams of pure water on which our people are largely dependent for their domestic needs, we think this doctrine best adapted to our local situation and circumstances. We hold,, therefore, that the other orators, as well as Eawrie, can maintain the bill in their own names if the defendants have’ infringed their rights. But what are their rights as against the defendants?

Each riparian proprietor has a right to1 use the water of the stream for his own natural wants, and for the like wants of his family and his beasts. Many -of the authorities say that for these purposes .he may use all of it if necessary. But the logical result from the correlative rights of riparian proprietors would seem to¡ be that each must use his own right SO' as not to deprive the others of an equal enjoyment of their same rights. And this is the view taken in Chatfield v. Wilson, 31 Vt. 358, and Barre Water Co. v. Carnes, 65 Vt. 626, 27 Atl. 609. The same view is taken in Elliot v. Fitchburg Railroad Co., 10 Cush. 191. It would seem to follow that reasonable use is the only limit that can be set bo the exercise of these rights. This is the rule in New Hampshire, where they repudiate the English doctrine, and hold it to' be a question of fact whether the use of the water made by. a riparian owner for his own purposes or for sale to¡ others for non-riparian purposes is, in all the circumstances, a reasonable use. Gillis v. Chase, 67 N. H. 161, 31 Atl. 18. Sometimes the law will say what is a reasonable use. Thus, they hold in New Jersey that the sale of a right to take water for use on non-riparian lands is unreasonable as matter of law, if thereby another riparian' proprietor sustains palpable damage. Higgins v. Flemington Water Co., 36 N. J. Eq. 538. But if the use is lawful and beneficial, it must be deemed to be reasonable, and not an infringement of the rights of other riparian owners to whom it occasions no actual and perceptible damage. Elliot v. Fitchburg Railroad Co., 10 Cush. 191, 197. There a riparian owner granted to> the defendant a perpetual right to divert all the water of the stream to its non-riparian •premises, where it supplied its locomotive engines with water. The court said that the grantor and the grantee together held' the whole right, and that the case was to be considered as though the defendant owned the land. This case is like that in this respect. Here the taking of the water by the orators is lawful and beneficial, and does not alter the rights of the-defendants nor do them- any actual and perceptible damage. Therefore their use must be deemed reasonable as to the defendants. But the use the defendants are making of the water is found to damage the orators to some extent, and therefore-it cannot be said as matter of law, in the circumstances, to be a reasonable use. Hence it is a question of fact for the master, and he has not passed upon it, and the case will have-to go back to him.

We are asked to deny an injunction because the damage is so small to the orators, and growing smaller all the time,, and the master thinks that the water in the defendants’ pond, the creation of which is complained of, may purify itself from objectionable taste and odor in ten years, though probably a longer time will be required to render it tasteless and odorless as it leaves the pond; and because an> injunction will hurt the-defendants more than it will help the orators. But as the case has got to go back for further findings, this question is reserved.

It is objected that the bill cannot bé maintained because not brought in the name of The Ox B-o-w Aqueduct Company. But this objection cannot be sustained, because it does not appear that the company was ever incorporated and organized. The statute provided that associations thereunder should be formed by written articles, “subscribed by the members.” It fairly appears that these articles were not subscribed by-the members, for the report professes to set out the articles-in their very words, and no signatures are attached. Substantial compliance with the terms of a general incorporation law is a prerequisite to the formation of a corporation under it. i Morawetz, Corp. 2d ed., § 27.

Again, the statute provided that corporations created thereunder, “when organized,” should be capable to sue and "be sued. It does not appear that said association was ever organized, and therefore it would have no capacity to sue even though the articles had been subscribed.

Reversed and remanded with mandate.  