THOMAS v. CLARK
Cite as 346 A.2d 189
and after the accident. See Kinney v.
Cloutier, 125 Vt. 109, 111, 211 A.2d 246
No grounds for reversing the judgment
below have been demonstrated.
E KEY NUMBER SYSTEM
Loren A. THOMAS and
Shirley R. Thomas
Supreme Court of Vermont.
Oct. 7, 1975.
In property dispute over spring rights,
the Windsor Superior Court, Ernest W.
Gibson, III, J., entered judgment in favor
of owners of dominant estate, and owners
of servient estate appealed. The Supreme
Court, Billings, J., held that grant of right
to take water from land conveyed right in
land itself, that development of spring on
servientt estate subsequent to grant by deed
of spring rights themselves could not serve
to deprive owner of dominant estate of his
right to use newly developed spring, that
use of spring by owners of dominant estate
did not interfere with lawful use by own-
ers of servient estate of. their own land,
and that owners of dominant estate must
contribute to cost of development and up-
keep of spring.
Cause remanded for hearing on por-
tion, if any, of costs parties should bear in
development in upkeep of spring.
1. Waters and Water Courses e=156(2)
Grant of right to take water from land
conveyed right in land itself.
2. Waters and Water Courses 0=156(5)
Development of spring on servient es-
tate subsequent to grant by deed of spring
rights themselves could not serve to de-
prive owner of dominant estate of his right
to use newly developed spring when there
was no developed spring existing at time
of grant and owner of dominant estate was
presently asserting right in only spring ex-
3. Trial O404(I)
In property dispute over spring rights
in which trial court's findings regarding
use by owners of servient estate of another
spring, not in dispute, in another area,
were seemingly in contradiction, the Su-
preme Court must read those findings in
such a way as to be consistent with each
other and to support judgment.
4. Waters and Water Courses e 5158/2(1)
Finding supported conclusion that use
by owners of dominant estate of disputed
spring developed on servient estate subse-
quent to grant by deed of spring rights did
not interfere with lawful use by owners of
servient estate of their own land.
5. Contribution -=3
When several persons enjoy common
benefit, all must contribute rateably to dis-
charge of burdens incident to existence of
6. Waters and Water Courses e=156(5)
Where it was determined that owner
of dominant estate was entitled to use
spring developed on servient estate subse-
quent to grant by deed of spring rights, ap-
plication of equitable principles of unjust
enrichment did not affect right to take wa-
ter in first instance, but only required con-
tribution toward cost of mutually enjoying
use of spring.
Garfield H. Miller, of Black & Plante,
White River Junction, for plaintiffs.
346 ATLANTIC REPORTER, 2d SERIES
George Wenz, White River Junction, for
Before SMITH, DALEY, LARROW,
and BILLINGS, JJ., and SHANGRAW,
C. J. (Ret.), Specially Assigned.
In dispute is a Windsor Superior Court
decision that the development of a spring
on a servient estate subsequent to the grant
by deed of the spring rights themselves
cannot serve to deprive the owner of the
dominant estate of his right to use the
newly developed spring.
The trial court's findings of fact, un-
challenged on appeal, disclose that the de-
fendant, Karl Clark, acquired by deed dat-
ed December 16, 1970, a small parcel of
land in Sharon. Vermont. With this par-
cel was the right to take water from a
spring on the "Welch Farm", north of the
acquired parcel. Title to that part of the
Welch Farm burdened by this grant now
resides in plaintiffs Loren A. and Shirley
R. Thomas. The spring rights originated
in a 1928 warranty deed from the common
grantor in each chain of title and were
also contained in conveyances through the
years down to and through the conveyance
Circa 1955, a predecessor in title to
plaintiffs- developed a spring on the prop-
erty lying to the north of the parcel now
owned by defendant. Until 1955 no devel-
oped spring had existed in that area. Ad-
ditionally, no dwelling existed on defend-
ant's land prior to 1966, but in November
of that year defendant's immediate prede-
cessor in title moved a mobile home onto
the property and laid a connection to the
spring north of his parcel on plaintiffs'
land. A dispute then arose with plaintiffs
over the right to connect to this spring and
is still unresolved, with the present defend-
ant now the owner of the dominant estate
and spring rights.
After trial, the Windsor Superior Court
concluded that defendant had a right to
take water from the spring on plaintiffs'
property, even though the spring was con-
structed some twenty-seven years after the
right was created, since it was the only
spring in the area described in the deed,
and no one knows of any other spring in
The question for decision here is wheth-
er the trial court erred in permitting the
owner of the dominant estate a right to
use the spring water from a spring devel-
oped subsequent to the grant of the right.
The plaintiffs cite no direct authority, nor
have we discovered any, for the proposi-
tion that an owner of spring rights has no
claim of use to a subsequently constructed
spring, when no spring existed at the time
of the grant.
[1,2] There is no question that the
grant of the right to take water in 1928
conveyed a right in the land itself. Kelly
v. Alpstetten Association, Inc., 131 Vt. 165,
168, 303 A.2d 136 (1973). In arguing that
there is no right in defendant to use the
subsequently built spring, plaintiffs rely on
Magoon v. Harris, 46 Vt. 264 (1873) and
Clement v. Rutland Country Club, 94 Vt.
63, 108 A. 843 (1920). However, these
cases involve a spring or springs in exist-
ence at the time of the grant of spring
rights by deed, along with other disputed
springs constructed subsequent to the grant
of use. By their holdings, Magoon and
Clement allow the dominant estate to use
only the specific springs existing at the
time of the grant. Here, in distinction,
there was no developed spring existing at
the time of the grant, and defendant as-
serts a right in the only spring existing.
[3,4] Plaintiffs contend that allowing
defendant to use the spring interferes with
the lawful use of their own land. How-
ever, other than this general allegation,
there are no specific instances cited of un-
lawful interference by defendant. In fact,
Id JILIL -_ -r~p---------- -Pi
_ I IIIIl---IIlsll
IN RE F. E. B.
Cite as 346 A.2d 191
the findings are to the contrary. Finding
No. 13 indicates that the spring in contro-
versy has apparently been able to provide
sufficient water to serve both parties'
needs. Furthermore, plaintiffs took title to
their land with knowledge of the spring
rights. We note here that the court also
found, seemingly in contradiction, that the
plaintiffs require another spring to meet
their water needs. But this second spring
in another area pre-existed the disputed
spring and the import of the findings, read
to be consistent with each other, and to
support the judgment, see Colby's Executor
z. Poor, 115 Vt. 147, 153, 55 A.2d 605
(1947), as we must do, is that the use of
the disputed spring by plaintiffs was sup-
plemental to the use of the other spring.
There has been no showing of unlawful in-
terference with plaintiffs' land by defend-
[5, 6] Finally, plaintiffs assert as
grounds for reversal that permitting de-
fendant to use the spring results in unjust
enrichment, since he did not participate in
the cost of the original construction of the
spring in 1955, nor in its upkeep since he
acquired the dominant estate in 1970. We
reaffirm the equitable principle that when
several persons enjoy a common benefit,
all must contribute rateably to the dis-
charge of the burdens incident to the exist-
ence of the benefit. Tullar v. Baxter, 59
Vt. 467, 473, 8 A. 493 (1887). A reversal
is not in order here since application of the
equitable principles of unjust enrichment
do not affect the right to take the water in
the first instance, but only require contri-
bution toward the costs of developing and
mutually enjoying the use of the spring.
To remedy defendant being unjustly en-
riched at the expense of plaintiffs, we re-
mand the case for a determination of the
proportionate costs the parties should bear
in regard to the upkeep of the spring, from
December 16, 1970, to the present, and for
as long as defendant continues his use of
Judgment affirmed. Cause remanded to
the Windsor Superior Court for hearing
on the portions, if any, of the costs the
parties should bear in the development and
upkeep of the spring.
In re F. E. B.
Supreme Court of Vermont
Sept. 18, 1975.
Petition was filed alleging that infant
was in need of care and supervision. The
District Court, Unit No. 6, Windham Cir-
cuit, John A. Lowery, P. J., issued order of
disposition transferring custody of infant
from its parents to Commissioner of De-
partment of Rehabilitation. Upon appeal,
the Supreme Court held that it was revers-
ible error for juvenile court to fail to state
facts which brought case within ambit of
Juvenile Procedure Act and to fail to hold
hearing on petition within 15 days after
I. Infants -=16.4
It is the duty of
facts which bring a
juvenile court to state
case within ambit of
Act. 33 V.S.A.
2. Infants C=16.15
It was reversible error for juvenile
court to fail to state facts which brought
case within ambit of Juvenile Procedure
Act and to fail to hold hearing on petition
alleging child who was in need of care
within 15 days of filing of petition. 33
V.S.A. 631-666, 647(a).