any time other than the annual town meeting, provided it so votes at a previous town meeting; notice of the proposed change being inserted in the warning of the annual town meeting at the request in writing of 10 legal voters of the town school district. Each town shall take charge of the schoolhouses within its limits, and the property belonging thereto, and shall pay all outstanding debts for the purchase of land, and the erection of schoolhouses and repairs thereon, and shall provide and maintain suitable schoolhouses, the location and construction of which shall be under the control of the board of school directors, which each town must have, consisting of three citizens of the town, one of whom shall be elected at each annual meeting of the town for such a term. That board has the care of the school property of the town and the management of its schools; keeps the schoolhouses repaired and insured; determines the number and location of schools; employs and discharges teachers, and fixes their compensation by majority vote, examines and allows claims arising therefrom, and draws orders upon the town treasurer for the payment thereof; designates the schools that shall be attended by the various pupils in the town; and makes regulations not inconsistent with law for carrying its powers into effect. The board is required to appoint a clerk, who must keep a permanent record of their proceeding, and, under V. S. 728, he was to call all special town meetings for the consideration of school matters, and, in case of his absence, inability, or neglect to act, some member of the board was to call them; but now, under Act No. 60, p. 46, Acts 1898, the selectmen are to call all such meetings in the same way that other special town meetings are called. Each town is required to maintain schools therein at the expense of the town. The grand list of town districts is made up of the ratable polls and real and personal estate therein. The selectmen must annually appropriate for school purposes a sum not exceeding one-half nor less than one-fifth of the grand list of the town district, and assess a tax to meet the appropriation; and a town district may by special vote raise a larger sum for school purposes. The town treasurer is required to keep a separate account of the moneys appropriated or given for the use of schools, and to pay thereout orders drawn by the board of school directors for school purposes. The selectmen of a town having within its limits a school district incorporated by special act are required to divide the public school money in the treasury of the town between the town district and the incorporated district on a specified basis. There is a body of special provisions relating exclusively to school districts in unorganized towns and gores and school districts incorporated by special acts, and to their schoolhouses, and the maintenance of schools by them, and to their taxes and school money. as It is important to note, in this connection, the indiscriminate use the statute makes of the word "town," which it often uses synonymous with "town school district," thereby creating doubt and uncertainty whether the town school district is a legal entity, separate and distinct from the town itself. But, notwithstanding this, the meaning of the statute is not past finding out; for there is, when taken as a whole, a reasonably clear intent running through it all. Thus, when it says that each town in the state shall constitute one district for school purposes, it does not mean that, for there are many towns in which there are school districts incorporated by special acts, and they are no part of the town for school purposes. It must mean, therefore, and does mean, that that part of each town composed of abolished school districts shall constitute one district for school purposes. So, when it says that each town shall take charge of the school houses within its limits, and provide and maintain schoolhouses, it means that the town school district shall do that, for the schoolhouses in incorporated school districts, although within the limits of the towns, are not within their jurisdiction to take charge of and maintain. So, when it says that every town shall maintain schools therein at the expense of the town, it means that the town school district shall do that, for the town cannot maintain schools at the expense of the whole town when there is an incorporated school district within its limits. There are other similar instances of the incorrect use of the word "town," but it is unnecessary for present purposes to specify them. On the other hand, there are many instances in which the statute uses the words "town district," or "town school district," and, when it does, they obviously mean an entity separate and distinct from the town itself, as they do when it says that a town school district in a town in which there is an incorporated school district may hold its annual school meeting at any time other than the annual town meeting; so when it says that the grand list of town school districts shall be made up of the ratable polls and the real and personal estate therein; so when it says that a town district may by special vote raise a larger sum for school purposes than that appropriated by the selectmen; so when it says that an incorporated school district may surrender its charter and become a part of the town school district, and that a town school district may merge in an incorporated district. Our statute is so much like the New Hampshire statute of 1885, adopting the town system of schools, as to induce the belief that ours was modeled upon it. It had the same verbal inaccuracies of which we have been speaking, and in Sargent v. School District, 63 N. H. 528, 2 Atl. 641, the Supreme Court of that state had occasion to construe it in respect of those inaccuracies, and gave against it in regard to the money, but only against the town. Nor does it pray for relief against the district, except by the general prayer, but only against the town. But this will not defeat the bill, for the case having gone to the extent of settling the facts, and they showing that the orator is entitled to relief, it will not be turned out of court, but be allowed to amend its bill, so it can obtain the relief to which it is entitled. Decree reversed and cause remanded, with mandate that on proper amendment of the bill a decree be entered for the orator like the one appealed from, except as to costs, and except as far as necessary to alter the same in order to make it conform to and effectuate the views here expressed. Let the question of costs below be there determined. it the same construction that are here given our statute. Thus it appears that we have for our town school districts (1) creation, and by name in effect, as, in this case, the town school dictrict of Troy; (2) perpetuity of existence, for their duties are continuous, and will ever be, unless they are relieved therefrom by the same power that imposed them; (3) unity of person, else they could not maintain schools at the public expense, nor vote taxes for school purposes, nor do many other things that they are required to do; and (4) governing boards, elected, the statute says, at town meetings, but it means at town school district meetings, and it is common knowledge that they are there elected. Now, these functions are essentially corporate in their nature, and cannot be performed without corporate capacity, and hence the necessary implication is that the Legislature intended to confer that capacity, that the districts might fulfill the purpose of their creation. This is the same principle by which, when you make a grant, you are taken to grant every thing you can grant necessary to the beneficial use of the thing granted. Indeed, it may be said in a general way that the machinery that runs the town is not adapted to running the town dis- Equity has jurisdiction in general of a trict, especially when they are not cotermin-suit to restrain the unlawful obstruction of a ous, and cannot be made so under the law. We hold, therefore, that a town school district under the statute is a corporate body by necessary implication, separate and distinct from the town, whether coterminous with it or not, and all the more so if it is not. This is the construction that New Hampshire has put upon its statute. Sargent v. School District, 63 N. H. 528, 2 Atl. 641; Wheeler v. Alton, 68 N. H. 477 38 Atl. 208. It is claimed that it was error to allow the orator full costs, for that the order of February 26, 1904, by which the orator had leave to amend its bill on terms that it should "pay into court for the defendants their costs to the date of amendment," which was April 18, 1904, restricted the orator to costs from that time. But the order does not say that the orator shall take no costs to that time. It is silent as to its costs, and does not restrict them even by implication. It is claimed that it was error to charge the town district with interest before the amended bill was filed. But we think it should pay interest from the time it was made a party and the original bill was served upon it; for, although that bill was against the town alone, yet the district knew from it that the money the orator was thereby seeking to recover was the very money it had received and appropriated to its own use, and then it knew that it was retaining the money against the will of the orator, and from that time on it was its duty to pay. It is claimed that the bill does not support the decree, and that is so largely, for the decree makes the town district pay the money, whereas the bill alleges nothing (80 Vt. 109) CLOYES et al. v. MIDDLEBURY ELEC- (Supreme Court of Vermont. 15, 1907.) Addison. May - EQUITY 1. WATER COURSES-OBSTRUCTION water course, whereby the lands of riparian owners are flooded, where the injury is necessarily continuous in character and operates prospectively so that the complainants have no adequate remedy at law. [Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, §§ 260, 261.] 2. SAME-HEALTH-DANGEROUS CONDITIONS. It is not necessary to the maintenance of such suit that the bill should charge that the conditions resulting from the obstruction were dangerous to health. 3. SAME-RIGHT AT LAW-ESTABLISHMENT. In a suit by riparian owners to restrain the unlawful obstruction of a stream, it is not necessary that the landowners' right should be first established at law; their title to the riparian lands having been admitted. 4. SAME-BILL-DEMUrrer. In such a suit, the fact that complainants have not established their right at law is not ground for demurrer. 5. PARTIES SUITS. JOINDER MULTIPLICITY OF Where a large number of riparian proprie tors owning land on a stream above a waterfall were all similarly injured by defendant's unlawful obstruction of the stream at the falls by a dam, and the injury to each was of such a character that each, though claiming under a separate right, could have resorted to a court of equity for the establishment and protec tion thereof, and the obstruction affected each in the same way, though not necessarily to the same extent, they were all entitled to join in a bill, in order to prevent a multiplicity of suits. [Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Parties, §§ 15, 16; vol. 48, Waters and Water Courses, § 244; vol. 19, Equity, §§ 266270.] 6. WATER COURSES-ARTIFICIAL CHANNEL RIPARIAN RIGHTS. In 1804 complainants' predecessors in title owning riparian lands above a waterfall in a natural stream entered into a contract with de fendants' predecessors, who owned a water power at the falls, whereby, in consideration of $1,000 paid to the latter, and of another $1.000 to be used to improve the stream, all of which was raised by an assessment levied on the benefited riparian lands, defendants' predecessors agreed to remove all obstructions that they had put on the falls as a dam to obstruct the water, and to reduce the falls one foot on a certain level by the removal of rocks, etc., for the purpose of draining the upper riparian land. These improvements having been accomplished, the land so drained was improved, and the stream remained in its altered condition until defendant electric company acquired an interest in the water power in 1893, when it raised the water at the falls two feet by the construction of a dam. Held, that defendants were estopped to so alter the fall of the stream in its artificial improved channel to the injury of complainants. Appeal in Chancery, Addison County; John H. Watson, Chancellor. Bill by P. B. Cloyes and others against the Middlebury Electric Company and others. From a decree overruling a demurrer to the bill for want of equity, defendants appeal. Affirmed. Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, HASELTON, POWERS, and MILES, JJ. Ira H. Lafleur and Stickney, Sargent & Skeets, for appellants. W. H. Davis and W. H. Bliss, for appellees. POWERS, J. We learn from this bill that a natural water course known as "Otter Creek" flows northerly through Rutland and Addison counties, and empties into Lake Champlain at Vergennes. The orators, 88 in number, are the owners in severalty of certain farms and lowlands lying along the stream in the town of Middlebury and other towns south of Middlebury and higher up on the stream. There is a natural falls at Middlebury village, which has for a great many years furnished power for various industries, and which is now owned and utilized by the defendants. In 1804 the parties then owning the riparian lands above said falls (a part of which are now owned by the orators) entered into an arrangement with the parties then owning the power and rights on the falls, pursuant to which they procured the passage of an act of the Legislature assessing a tax on such riparian lands according to the benefits thereto of the improvements contemplated by said arrangement, appointing assessors to appraise such benefits, a collector to collect such tax, and a committee of five to receive and to expend the money so raised, for the purpose of carrying out the provisions of the contract hereinafter set forth. The assessors proceeded to appraise said benefits, and assessed a tax on said lands sufficient to raise the sum of $2,000, which was collected and paid over to the committee named in the act. Thereupon the parties then owning said lands appointed this committee of five as their committee to represent them in the making and execution of a contract with the owners of said power and rights (Vt. Pursuant to this arrangement the committee and power owners on the 10th day of March, 1806, made, executed in the presence of two witnesses. and caused to be recorded in the office of the town clerk of Middlebury, a contract, which so far as material here, reads as follows: "Whereas, the waterworks situated in Middlebury falls upon Otter creek cannot at all times have sufficient supply of water without a dam on said falls; and whereas, it is supposed that such dam on said falls by raising the creek above the falls does a material injury to the lowlands on said creek; and whereas, the owners of lowlands between said falls in Middlebury and Sutherlands' falls in Rutland conceive that it would prove highly beneficial to said lands to lower said falls in Middlebury so as to reduce said creek to its natural level: Therefore, for the mutual accomodation of the owners of said waterworks and the owners of said lands, it is agreed mutually by and between Gamaliel Painter, Artemas Nixon, Daniel Henshaw, John Warner and Jonathan M. Young, owners of said waterworks, and Daniel Chipman, Darius Matthews, Henry Olin, Benejah Douglas and Levi Walker, a committee appointed by said landowners, that the said owners of said works will, during the summer of the year of our Lord, 1806, remove all obstructions which they have put on said falls as a dam to stop the water between the southwest corner post of said Gamaliel's mill and Daniel Henshaw's flume; that they will reduce the falls one foot on a level below a certain mark made on said falls by Henry Olin and Benejah Douglas; that they will remove certain rocks that project out below the top of said falls towards the south side of said creek so that the water may fall from the top without obstruction; that they will lower their flumes so as never to place any dam or obstruction on said falls, and that they will at all times permit any of said land owners, or any person by them appointed, to remove any obstructions which may accidentally or otherwise be lodged on the rocks at the head of said falls between the said post at the southwest corner of said Gamaliel Painter's mills, as now erected, and the flume of the said Daniel Henshaw, as they now stand. For which the owners of said lands agree to pay the said mill owners one thousand dollars, one half of which shall be paid by the first day of July next, and the other half by the first day of October, A. D. 1806; that is to say, the one half of said one thousand dollars to be paid to Gamaliel Painter, and the other half to be paid Artemas Nixon, Daniel Henshaw, John Warner and Jonathan M. Young; provided the said work shall then be completed. And it is further agreed that the landowners shall, during the summer of 1806, and 1807, make the stream as convenient for rafting logs from against the northeast corner of Ebenezer Markham's farm (as it now stands) to the lower side of the bridge, as it would be if the rocks at the head of the falls were not to be reduced. And it is further agreed that the said landowners at any and at all times hereafter have liberty to lower the rocks and rapids in said creek as they shall think proper at any place or places above the lower side of the bridge now erected across said creek near the falls, and that William Goodrich, William Young and Nathaniel Ripley be appointed as a committee to say whether any, and if any, what and how much, shall be done to the channel on each side of the creek to make it as good for rafting logs as if the rocks on the head of said falls were not altered: and if by death or any other accident either or all of said committee be unable to attend said business, the Supreme Court of this state on application of either or both of said parties to this contract have power to appoint, at any session of said court in the county of Addison, one or more person or persons to take his or their place or places and execute said charge. And it is further agreed that the said landowners shall indemnify and save harmless the said mill owners from all damages they may sustain by being sued or prosecuted by any person or persons for lowering said falls." The water power owners thereupon removed from the falls the obstructions there on, broke off and removed the projecting rocks, and lowered the falls in accordance with the requirements of this contract. The result was that the aforesaid lowlands were drained and made tillable, and became and are very valuable for agricultural purposes. After the falls were lowered in this way, they remained as that work left them for a period of more than 80 years, during all of which time said lands have been used, cultivated, and occupied by their respective owners under a claim of right to have them so remain. The Middlebury Electric Company, one of the defendants, having purchased an interest in said water power, erected at the head of said falls in 1893 a wooden dam, and thereby raised the water upon said falls about two feet higher than it had been accustomed to flow since the removal of the obstructions as aforesaid, in consequence of which said lowlands were overflowed and rendered valueless for agricultural purposes, and unwholesome effluvia and miasma caused to arise therefrom rendering the dwellings of the orators unhealthful and unfit for occupancy. The other defendants are the owners of certain interests in said power, and all are now maintaining the dam aforesaid. The orators have frequently protested to the defendants against the maintenance of the dam, and have even attempted to remove it by force, without avail. The bill alleges that each of the orators suffers a common injury by the alleged wrongful maintenance of the 66 A.--66 dam, that the cause of complaint is common to all and the same to each, that any defense made will be common to all the orators, and that the testimony, proofs, and decrees will be alike as to all the orators except as to the amount of damages. The prayer is for a decree establishing the orators' right to have the falls continue free from dam or obstructions, as left in 1806, ordering the defendants to remove the present obstruction from the falls, restraining them from erecting or maintaining any such obstructions, for an accounting of damages with each of the orators, and for general relief. The bill is demurred to. 1. That a court of equity has jurisdiction of the subject-matter of this suit cannot well be questioned. The character of the injury caused by the unlawful obstruction of a water course, whereby the lands of riparian owners are flooded, is usually such as to bring the matter within the jurisdiction of that court. To be sure, it must appear in such cases that the remedy at law is inade quate; but such remedy is inadequate, in a legal sense, when the injury suffered by the landowner is necessarily continuous in character and operates prospectively and indefinitely (Lyon v. McLaughlin, 32 Vt. 423) or is of such a character that if continued would ripen into a right (Canfield v. Andrew, 54 Vt. 1, 41 Am. Rep. 828). So, though it is not in every case of this kind that a court of equity will interfere, when the injury is substantial rather than trivial, and permanent rather than temporary, it will readily lend its aid to one whose rights have been so invaded. And that is the case made by this bill, without regard to the allegations showing conditions dangerous to health, which of themselves make a proper cause for equitable interference. 2 Farnh. Wat. § 582: Holsman v. Spring Co., 14 N. J. Eq. 335. Nor, in a case like this, is it necessary that the right should be first established at law. The title to the riparian lands being admitted by the demurrer, the right to have the waters of the stream flow through them free from unlawful obstruction is clear, and the necessity for immediate action urgent. In these circumstances a court of equity will not hesitate to take jurisdiction. Lockwood Co. v. Lawrence, 77 Me. 297, 52 Am. Rep. 763; Olmsted v. Loomis, 9 N. Y. 423; Reid v. Gifford, Hopk. Ch. 416; Robeson v. Pittenger, 2 N. J. Eq. 57, 32 Am. Dec. 412; Vaughn v. Law, 1 Humph. (Tenn.) 123. Besides, it is held that the fact that the complainant has not established his right at law is no ground for a demurrer. Lockwood Co. v. Lawrence, supra; Soltau v. De Held, 2 Sim. (N. S.) 133. This is shown by Griffith v. Hilliard, 64 Vt. 646, 25 Atl. 427, where it is held that. even in cases where the orator's title is disputed, the court of chancery may proceed and determine which party has the better title. And once equity has taken jurisdiction of a case like this, it will retain it for all purposes and dispose of the whole matter, even to the assessment of damages. Whipple v. Fairhaven, 63 Vt. 221, 21 Atl. 533; 6 Pom. Eq. 562; Roberts v. Vest, 126 Ala. 355, 28 South. 412. The fact that the parties are numerous is not an insurmountable embarrassment. It did not deter the court of chancery from working out the rights of the parties in Waterman v. Buck, 58 Vt. 519, 3 Atl. 505. 2. Can the orators join in the bill? If they can, it is solely upon the ground of preventing a multiplicity of suits. Prof. Pomeroy reduces all possible conditions in which a multiplicity of suits can arise to four classes. His third class is: "Where a number of persons have separate and individual claims and rights of action against the same party, A., but all arise from some common cause, are governed by the same legal rule, and involve similar facts, and the whole matter might be settled in a single suit, brought by all these persons uniting as coplaintiffs, or one of these persons suing on behalf of the others, or even by one person suing for himself alone." His fourth class is the converse of this: "Where the same party, A., has or claims to have some common right against a number of persons, the establishment of which would regularly require a separate action brought by him against each of these persons, or brought by each of them against him, and instead thereof he might procure the whole to be determined in one suit brought by himself against all the adverse claimants as codefendants." 1 Pom. Eq. § 245. In discussing the cases which properly fall within these classes, he says (section 269a) that, "under the greatest diversity of circumstances and the greatest variety of claims arising from unauthorized public acts, invasion of property rights, violations of contract obligations, and, notwithstanding the positive denials by some American courts, the weight of authority, is simply overwhelming that the jurisdiction may and should be exercised, either on behalf of the numerous body of separate claimants against a single party, or on behalf of a single party against such a numerous body, although there is no 'common title' or 'community of right' or of 'interest in the subject-matter' among these individuals, but where there is and because there is merely a community of interest among them in the questions of law and fact involved in the general controversy, or in the kind and form of relief demanded and obtained by or against each individual member of the numerous body." "In a majority of the decided cases," he says, "this community of interest in the questions at issue and in the kind of relief sought has originated from the fact that the separate claims of all the individuals comprising the body arose by means of the same unauthorIzed, unlawful, or illegal act or proceedings." "Even this external feature of unity, how ever," he continues, "has not always existed, and is not deemed essential. Courts of the highest standing and ability have repeatedly interfered and exercised this jurisdiction, when the individual claims were not only legally separate, but were separate in time, and each arose from an entirely separate and distinct transaction, simply because there was a community of interest among all the claimants in the question at issue and in the remedy." If all this be so, individuals could join in a bill, regardless of whether they could severally resort to equity. This proposition is vigorously denied in Tribette v. Railroad Co., 70 Miss. 185, 12 South. 32, 19 L. R. A. 660, 35 Am. St. Rep. 642, wherein it is said that there is no such doctrine in the books, and that Prof. Pomeroy's zeal to maintain a theory has betrayed him into error, and so blinded him as to cause him to confound two distinct things joinder of parties, and avoidance of a multiplicity of suits. The true doctrine is there said to be that the mere fact that there is a community of interest in the questions of law and fact presented by a given controversy, or in the kind and form of relief demanded by or against each of several individuals, will not warrant equitable interposition, unless the questions involved are of equitable cognizance; that, when each of several so situated may proceed or be proceeded against in equity, their joinder as plaintiffs or defendants is not objectionable. Mr. Freeman, in his note to Woodward v. Seeley, 11 Ill. 157, 50 Am. Dec., at page 452, apparently approves the Pomeroy rule, for he quotes a part of the language above set forth, and says that Prof. Pomeroy discusses this whole subject of the equity jurisdiction to prevent a multiplicity of suits with great learning, clearness, and vigor. It is not necessary to a determination of the question now presented that we should become involved in any controversy over the true scope and extent of the rule under discussion, for here the matters involved are, as we have seen, of equitable cognizance, and the injury complained of is of that character that each of the orators could have resorted to the court of equity for the establishment and protection of his rights. Nor is it necessary that we adopt the rule, even as modified by the Mississippi court, and approve the statement that the jurisdiction exists when the individual claims arise from entirely separate and distinct transactions; for here we need only go to the extent of holding that, in order to warrant the joinder, the wrongful act, being of equitable cognizance, must also be of such a character as to necessarily fall upon all the orators simultaneously, affecting all in the same way, though not necessarily to the same extent. And by "simultaneously” is here meant, not at the very same instant, but at substantially the same time. This proposition is, we feel confident, safely within the authorities, and embraces the case made |