« ΠροηγούμενηΣυνέχεια »
accordance with his custom, the injury occurred on the defendant's premises, where his work was in part performed, while he was enjoying a privilege allowed by the defendant to the plaintiff in his capacity as servant, and so far involved in his service that the relation of master and servant was then subsisting. Therefore, as it is admitted that the injury was caused by the negligence of one of the defendant company's drivers, a servant engaged in the same kind of employment, by dropping upon his head without warning a bale of straw, and it is not contended that this servant of the defendant was known in any way to be incompetent, or that the master was guilty of any negligence in employing him or in failing to provide other methods or appliances for the transfer of straw from the loft to the horses' stalls, it follows that the case comes clearly within the so-called fellow servant doctrine, and that the employer is not liable.
We think there was no error in the rulings or charge of the learned Chief Justice, and therefore the judgment of the court below is affirmed.
(80 Vt. 37)
ROYCE v. CARPENTER et al. (Supreme Court of Vermont. May 10, 1907.) 1. ASSIGNMENT-BOND FOR DEED.
A bond for a deed is a contract for the sale of real estate, and is assignable.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 4, Assignments, 88 25, 32; vol. 48, Vendor and Purchaser, 8 443.] 2. VENDOR AND PURCHASER-BOND FOR DEED --TITLE.
A purchaser in a bond for a deed of real estate is the equitable owner of the land, and an assignee of the bond takes the same estate.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, $$ 442, 443.] 3. SAME.
The equitable owner of land, who subsequently obtained a deed thereof, gave to a purchaser a bond for a deed, who paid a part of the price and entered into possession, and then transferred the premises by indorsement on the bond to a third person, who retained possession until he surrendered it to the purchaser and gave him the bond, with an indorsement reciting that the third person transferred the premises to the purchaser. The purchaser transfersed by indorsement on the bond to the orator, who took and retained possession of the premises. Held, that equity would treat the transactions as conveying the equitable title to the urator.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, 88 442, 443.) 4. APPEAL-MASTER'S REPORT_REVIEW-ExCEPTIONS.
Where, in a suit tried before a master, the record does not show a certain document pre sented to the master, an exception to his report because of his ruling in relation thereto will not be considered.
(Ed. Note.-.For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 88 2897-2899.) 5. SAME.
The question whether a master erred in rereiving and considering in the deposition of a
witness questions and answers specifically objected to by one of the parties at the time of the taking of the deposition is not presented for review, where the report of the master says nothing regarding any objection to the deposition, and it has not been furnished the court.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $8 2897–2899.] 6. SAME.
The question whether the master erred in receiving or rejecting testimony is not raised, where his report does not show that any objections were made before him on which exceptions to the reception or rejection of testimony were based, and where it does not refer to the transcript of the testimony for that purpose, thougb reference is made to the transcript in the exceptions.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $8 2897–2899.] 7. ESTOPPEL-KNOWLEDGE OF FACTS-RELIANCE BY ADVERSE PARTY.
An upper mill owner, who saw a lower mill owner expend his money in building a dam and mill, and did not make objection and furnished inaterials for the dam, was not estopped by acquiescence or laches from asserting his rights against the lower mill owner because of his set. ting back water and injuring the water power of the upper mill, where when he furnished the materials he did not know what the effect of the erection of the dam would be, and where the lower mill owner did not rely on the conduct of the upper mill owner.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Estoppel, 8 136.] 8. SAME.
Acquiescence in the wrongful act of another, such as will operate to preclude the obtaining of equitable relief, must be not only with knowledge of the wrongful acts, but also of their injurious consequences, and the same must last for such an unreasonable length of time as to inake it inequitable to enforce the remedies of equity against the wrongdoer.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Estoppel, $ 128.] 9. NUISANCE-EQUITABLE RELIEF.
Courts of equity will redress an injury re sulting from a private nuisance only where the injury resulting cannot be adequately compensated by damages at law, or where from the continuance of the nuisance a constantly recurring grievance arises which cannot be otherwise prevented than by injunction.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Nuisance, $ 56.] 10. WATERS AND WATER COURSES-WATEB POWER-INJURY FROM DAM-INJUNCTION.
In a suit for relief from injuries sustained in consequence of the maintenance of a dam, causing backwater to interfere with an upper mill owner's water power, the evidence showed that the water was frequently set back on the upper mill owner's wheel so as to seriously ob struct it and render it impossible to obtain sufficient power to run the mill, and that the damage would continue to a greater or less extent, dependent on the character of the mill of the upper owner and the amount of business he could command, as long as the lower mill owner maintained the dam at the present height. There was no evidence of the comparative values of the properties affected, nor of the balance of convenience or inconvenience in granting or withholding equitable relief. Prid, that equity would perpetually enjoin the maintenance of the lower dam in such a way as to interfere with the upper water power.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, $8 260, 261.)
A ppeal in Chancery, Windsor County; Millyard." The allegations further are that James M. Tyler, Chancellor.
the orator holds a bond for a deed and is in Suit by Edwin W. Royce against Norris possession of the land above referred to as Carpenter and another. Heard on appeal, formerly owned and occupied by William answer, master's report, and exceptions. Earle. This land is on the south side of From a decree for the orator, defendants the river against and extending below the appeal. Affirmed.
orator's mill, and is bounded on the north Argued before, ROWELL, O. J., and MUN.
by the river. It is called the “Ormsby" or SON, WATSON, STAFFORD, and HASEL
"Earle lot,” but hereinafter reference will be TON, JJ.
made thereto as the “Earle lot.” The deWm. W. Stickney, John G. Sargent, and fendants, having purchased of Agatha M. Homer L. Skeels, for appellant. Gilbert A. Moore the land bordering the orator's mill Davis and Waterman & Martin, for ap property on the east, and known as the pellees.
"Shaw lot," in 1900 erected a dam across
WATSON, J. The allegations of the bill the river a short distance below the orator's show that for some years the orator has dam and mill, and thereby flowed some of been and now is the owner of a certain the Earle lot to his damage, and also set sawmill on the northerly bank of Black back the water in the river so as to flow river, in the town of Plymouth, together his land and injure his water power and sawwith the water privilege and the land con mill. The orator prays that the defendnected therewith; the same being occupied ants may be enjoined from thus overflowing and used by him for lumbering purposes, bis land and injuring his water power and which premises are bounded on the south sawmill, for an account to be taken of the by land formerly owned and occupied by damages, and for general relief. September William Earle, and on the east by land 28, 1899, John A. Woods owned the equiformerly owned by Agatha M. Moore. It table title to the Earle lot, and it became appears from the report that in earlier days his by deed July 31, 1900. On the former the land about the orator's mill, and owned date he gave a bond for a deed of the same in connection with it, was called the “Briggs to Joseph M. Dyer, who paid $40 towards
the purchase price and entered into possession of the property. November 6, 1899, Dyer and bis wife transferred the same by indorsement on the bond to Orlando L. Coolidge; the latter taking possession. He retained the possession until June 11, 1900, when he surrendered it to Dyer and gave him the bond; there being no transfer in writing, except that Coolidge placed thereon in writing: “I, the said 0. L. Coolidge, transferred to the said J. M. Dyer, June 11, 1900." September 4th, following, Dyer and wife transferred the same, by endorsement on the bond, to the orator, who took possession of the place and has retained it ever since. The bond and transfer to the orator were recorded in the land records of the town. On the 1st day of the next month a payment fell due on the bond. This and all subsequent payments falling due thereon to the time of the hearing before the master were made by the orator. The bond was a contract for the sale of land and assignable. Under such a contract the purchaser is treated in equity as the equitable owner of the land, and an assignee takes the same equitable estate.
It is said that Dyer and wife, after their transfer to Coolidge, had no legal title to the contract, and hence they could assign no interest therein to the orator. The assignment back to Dyer, though informal, was written by Coolidge on the bond. In connection therewith he gave the bond to Dyer and surrendered the possession of the property. By this transaction the parties intended manifestly that all the equitable rights in the property under the contract owned by Coolidge should be assigned to Dyer. A court of equity will regard the substance, rather than the mere form, of the assignment, and give it such effect as the parties intended. Under the subsequent assignment from Dyer and wife, the orator has the same rights.
Shortly before Dyer transferred the bond to Coolidge, the defendant Carpenter applied to them for the privilege of flowing the water of the river upon the Earle place, if the defendants should erect their dam as it is now located. Wood, Dyer, and Carpenter met near the place of the dam and verbally agreed that the defendants might build their dam of the height later set forth in the deed from Wood to them, dated June 6, 1900, on Carpenter's paying $25 to be applied on the bond to Dyer. At sometime the $25 were paid by Carpenter to Wood, but it was never indorsed on the bond. When the bond was assigned to Coolidge, he had notice of the agreement with Carpenter, and consented to it. The record does not show that the orator, at the time of his purchase of the bond, had actual notice of this agreement or of such payment; but facts are found touching the question of constructive notice. The damages to the Earle land are reported separately, and the question whether on the facts
found the orator was entitled to recover the same was submitted to the court. The court below disallowed these damages, thereby impliedly holding the orator chargeable with constructive notice. Since in this no claim of error is made, we pass to the other branch of the case.
The determination of the true location of the division line between the land of the orator and the land of the defendants is essential to the decision of the case. The orator claimed before the master that it was the southerly portion of line iv to 7 on the plan marked "Batchelder's Plan," and, if not this line, then the line 3 to 4 to 8 on the same plan, or a line near them. This line as first above given strikes the south bank of Black river about 14 rods southerly of the foundation of the old sawmill, which stood pretty near where the orator's present mill stands. The defendants claimed the true line starts on the south bank of the river 4 rods, or nearly that distance, below the orator's mill. The master finds that the orig. inal line between the Briggs millyard and the Shaw lot was the southerly end of the line iv to 7 laid down on the plan, and that in the early days the Briggs millyard came down the river to that line. The de fendants did not seriously question this, but contended that about 1831 there was change made in the location of the line, so that it commenced on the south bank of the river, 4 rods, or about that distance, down stream from the foundation of the Briggs sawmill as it then existed. But from all the evidence the master was unable to find that the line was ever changed from where it originally ran, and he finds the line, commencing at point 7 on the plan, and running toward point iv, as far as the road or wall to be the true line between the parties. It is said, however, that the master reached this conclusion by an erroneous construction of Exhibit 27, a deed from Franklin Prior to Walter Fletcher, dated January 25, 1831. The master construed this deed as conveying one undivided half of the Shaw lot; whereas, the defendants say it should have been construed as conveying the whole lot. The defendants objected to the construction given, because they said that when properly construed the title to the Shaw lot and to the Briggs mill lot merged in Fletcher, and that he made a change in the division line between them. The master says such merger could not have been, for the title to the Shaw property was in Prior and Fletcher, and they conveyed it September 20, 1831, by their warranty deed, to I. P. Brown, bounding it on the up-river side by the Briggs sawmill yard.
If the master's construction is right, there could be no such merger of title as defendants claim. Nor could there be if his construction is wrong: June 29, 1825, Asa Briggs conveyed the mill lot to Asa Briggs, Jr. The findings show that the land thus
conveyed included the Briggs millyard, ex timony of this witness bearing on the extending down the river to the "original line" istence of the prescriptive line, including his between it and the Shaw lot. No further acts and declarations concerning it. change of title appears until October 23, It is further contended that all of the tes1828, when Asa Briggs and Asa Briggs, Jr., timony given by Butler should have been exconveyed the property to Walter Fletcher; cluded from consideration, for the reason the point of beginning named in the deed be that he was not present after the close of ing “about four rods south of the sawmill; the hearing before the master, to be further thence northerly across the road to I. P. cross-examined. The witness was examined Brown's land.” With the point of beginning and cross-examined before the master fully. and the easterly line as thus given, Fletcher When the hearing there was closed, each took by that conveyance no title to the land party reserved the right to take the deposibetween the two lines here claimed by the tions of one or two persons, and the derespective parties. That remained in Asa fendants' solicitor said he wished to crossBriggs, Jr., or in him and his father. Jan examine Butler further and reserved that uary 25, 1831, Fletcher conveyed the mill right. No further cross-examination was had. property by the same description to Franklin Whose fault it was the master had no knowl. Prior, and Prior on the same day executed edge. The master states that a copy of a to Fletcher Exhibit 27, before noticed. There subpæna for taking the depositions of Abram was still the land between the two lines Merrill and Butler was sent him by defendowned by neither Prior nor Fletcher, and as ant's solicitor, claiming it showed the orator an inevitable sequence to defendants' posi. in fault for defendants' not having Butler's tion there could have been no merger of title. deposition to use. He further states that no Nor could there be a resulting merger from service of the subpoena on Butler was shown the orator's predication that the easterly line by the copy, and he could not find from it of the millyard has always remained the that it was the fault of the orator that the same. For then, under the conveyances of deposition was not taken. The exception to the January 25, 1831, Prior took the mill lot, report in this regard is because the master and Fletcher the Shaw lot, with the original was misled as to the character of the docudividing line between them. In either view, ment relating to the taking of the deposition therefore, the defendants' objection to the —that it was not a subpæna, but a citation master's construction of deed Exhibit 27, served on defendants to be present at the regarding its force as evidence bearing on taking of Butler's and Merrill's depositions the line in question-and it was in this re by the orator, and therefore it was incumspect that the objection was made-is with bent on the orator to show why Butler's depout force. No other objection is available un osition was not taken accordingly. The der the exception. Sargent v. Burton, 74 Vt. paper thus in question was made a part of 24, 52 Atl. 72; Bourne v. Bourne, 69 Vt. 251, the master's report, but neither it nor a copy 37 Atl. 1019; Allen's Adm'r V. Allen's has been furnished the court. Hence we canAdm'rs, 79 Vt. 173, 64 Atl. 1110.
not say that the master was in error. Defendants argue that other deeds were Exception was saved to the report because also misconstrued by the master; but, be this the master received and considered in Meras it may, no exception brings the matter rill's deposition questions and answers spebefore us.
cifically objected to by defendants at the time The master further 'finds that the line on of the taking. Although the report makes the plan drawn from 3 to 8 represents the reference to the deposition for another purdivision line between the orator's land and pose, it says nothing regarding any objection that of the defendants, by prescription; but
thereto, nor has the deposition been furin making this finding testimony was used
nished. The exception refers to the deposigiven by one Frederick A. Butler, the orator's tion. Several other exceptions were taken to immediate grantor, showing a contract be the report because the master received or retween him and Winslow H. Sawyer, a form jected certain pieces of testimony. The report er owner of the Shaw lot, and now dead, does not show that any objections were made whereby, for a consideration paid by the
before the master on which these exceptions former to the latter, the line was established are based; nur does it refer to the transcript as above indicated, with subsequent use and of testimony for that purpose. Reference is occupation to the line thus established by made to the transcript in defendants' excepButler under a claim of right for more than tions, but this does not bring it before the 15 years.
Defendants objected to Butler's court. Sowles' Adm'r v. Sartwell, 76 Vt. 70, testifying to any contract with Sawyer, the 56 Atl. 282. These exceptions therefore, inlatter being dead, and they stand on an ex cluding those relating to the deposition, are ception to the report based thereon. It is un. not considered. necessary to consider the question thus rais The defendants began to erect their dam in ed, since the original line as found by the May, 1900. At that time the orator was in master stands as the true line between the the South, returning the last days of June. parties. It is for the same reason unnec He then knew defendants were erecting their essary to consider the questions argued re dam, and sawed, or caused to be sawn, in lating to the admissibility of any of the tes. his mill some timber to be used in the dam.
It is urged that the orator's conduct in this pensated by a pecuniary sum, and that to respect, together with his standing by and grant a perpetual injunction is inequitable. seeing defendants expend their money in It is found that up to the time of bringing building the dam and mill, without making this suit the orator had suffered by the erecobjection, constitutes such acquiescence and tion and maintenance of defendants' dam laches on his part as will estop him in equity $25; that when the water is high, so as to from asserting his rights here claimed. The flow over the dam six inches or more to one master states that there was no evidence that or two feet, as it frequently does, the water the material was furnished with such knowl. sets back on orator's wheel so as seriously to edge of what the effect of the erection of the obstruct it and render it impossible to obdam and mill would be upon the orator's mill tạin sufficient power to run his sawmill to as estops the latter from relief in the premis any advantage; and that the damage will cones. Nor was any finding made that the de- tinue to a greater or less extent, dependent fendants relied upon the conduct of the ora on the character of the orator's mill and tor in this behalf, or were thereby influenced amount of business he can command, as long in their actions. There can be no estoppel as defendants maintain their dam at its presunless the party alleging it relied upon the ent height. Nothing appears regarding the representation-whether in words, acts or si comparative values of the properties affected, lence of the party to be estopped, was in nor as to the balance of convenience or inconduced to act by it, and, thus relying and in venience in granting or withholding such induced, did take some action. Wooley v. Ed junction. son, 35 Vt. 214; Wells v. Austin, 59 Vt. 157, Courts of equity do not always, as a matter 10 Atl. 405; 2 Pom. Eq. Jur. 8 812.
of course, afford relief by way of injunction Nor was there such acquiescence in the in cases of this nature, where a right of acwrongful acts of the defendants by the orator tion exists for a nuisance. In the case of as will operate, on principles of and in anal- Ottaquechee Woolen Co. v. Newton, 57 Vt. ogy to estoppel, to preclude him from obtain. | 451, the orator sought such relief against the ing equitable relief, leaving him to his reme
defendants' erection of a dam which would dy at law. To have this effect the acquies set the water back on its wheel; but an incence must be not only with knowledge of the junction was refused. The defendants had wrongful acts themselves, but also of their been to great expense in the purchase of propinjurious consequences, and it must last for erty, and in making preparations to build up such an unreasonable length of time as to an extensive manufacturing business, prospec. make it inequitable to the wrongdoer to en tively of great public benefit. It was there force the remedies of equity against him after said that, in determining whether an injuncbeing suffered to go on unmolested and with tion should be granted or denied, the court apparent acquiescence in his conduct. Here should take a broad and comprehensive view the orator's knowledge of the injurious con of the situation, and ascertain if it will be sequences is negatived by the findings. Hence equitable to grant it. The refusal of the there is no quasi estoppel. 2 Pom. Eq. Jur. writ was placed on two grounds, one of which § 817; City of Logansport v. Uhl et al., 99 was that the anticipated trouble from backInd. 531, 49 Am. Rep. 109; Bausman v. Kel. water could nearly, if not quite, be obviated ley, 38 Minn, 197, 36 N. W. 333, 8. Am. St. by the substitution of a different wheel from Rep. 661. It is the use of the dam, not its the one then in use by the orator, and that erection, that is an interference with the ora the expense of such substitution would be tor's rights. Dutton v. Stoughton, 79 Vt. 361, small as compared to the loss of defendants 65 Atl, 91. Hence, without knowledge of the by being deprived of the right to utilize their injuries consequent on use, he would have no water power. In Dutton v. Stroughton, to knowledge that a wrong had been committed. which reference has been made, an injunction That one cannot acquiesce in a wrong, while was granted, but no question was made reignorant that it has been committed, is too specting the nature of the relief. Equitable self-evident to require further discussion. jurisdiction regarding private nuisances is Nor is the case presented one where the based upon the ground of restraining irrep
arable mischief, or of preventing vexatious facts are found showing any change of situa litigation or a multiplicity of suits; but, to tion by the defendants after the orator had justify the interposition of a court of equity knowledge that he would suffer damages aris to redress the injury or remove the annoring from backwater and before the com ance, “there must be such an injury as from mencement of these proceedings, 1072 months its nature is not susceptible of being ade later. In these circumstances it cannot be quately compensated by damages at law, or said that the delay was so prejudicial to the such as, from its continuance or permanent defendants as to render it inequitable for the mischief, must occasion a constantly recur. orator now to assert his rights. Halstead v. ring grievance, which cannot be otherwise Grinnan, 152 U. S. 412, 14 Sup. Ct. 642, 38 prevented but by an injunction.” 2 Story, Eq. L. Ed. 495.
Jr. & 925; Kerr on Injunctions, 225; Gould on Finally, defendants contend that all dam Waters, 8 528; Imperial Gas Co. v. Broadbent, ages which the orator has or will suffer from 7 H. L. 600; Holsman V. Boiling Spring backwater can be fully and adequately com Bleaching Co., 14 N. J. Eq. 335; Carlisle v.