Van Horn v. Clark

This case was before the chancellor upon demurrer to the bill. The opinion in the ease is found reported in 11 Dick. Ch. Rep. 476. It was decided that Blair, by force of the executed parol agreement, and Moore, by the written agreement with the Wildricks, got a right to use the pipe as an aqueduct, and the spring as a source of supply which was appurtenant to their land, at least so long as the necessity for its use remained, and therefore when Clark purchased from the Wildricks, he took the property subject to this easement.

The questions now presented on this final hearing are, first, what is the extent of the complainant’s rights? and second, have the defendants infringed them ?

First, then, to what amount of water is the complainant entitled? It is insisted by the counsel for the defendants that he is only entitled to that amount of water which he originally had. It is insisted that each party originally put in a pipe three-quarter inches in diameter, and thus fixed the size of the pipe, which was left blank in the recited verbal agreement.

*42Indeed, it is insisted that Blair tapped with his three-quarter-inch pipe, not the main pipe but a five-eighths-inch pipe leading from the main pipe, and that, therefore, his right to water was-thus fixed at such quantity as will flow through a pipe five-eighths of an inch in diameter.-

But in my judgment the right of Mr. Van Horn and of Mr. Clark are similar. The terms of the verbal agreement, as they are stated by Mr. Blair and as they are recited in the written agreement between Moore and the Wildricks, demonstrate this. By the recited agreement each paid one-half of the expense of laying the aqueduct, and it was to remain the joint property of the parties, each being liable to pay one-half of the expense of repairing the pipe. Each originally had the right to. insert a pipe of the same size, and in the absence of an agreement upon a size each had the right to one-half of the water conveyed by the pipe. When the pipe was relaid and a pipe of larger bore was substituted under the arrangement detailed by Mr. Swain, the parties obtained equal rights in the water conveyed by the new pipe. This, however, did not' mean that each party was entitled to abstract one-half of all the water conveyed.

What portion of the amount of water conveyed by the pipe each was to take is fixed by the agreement and by its practical construction. As already remarked, the size of the pipe which-each party was to insert into the main pipe for his own use was left blank, but it is apparent that any size that could be inserted must be common to both parties. They did each insert a three-quarter-inch pipe. When the main pipe was taken up and the new and larger pipe was substituted, it was agreed, said Mr. Swain, that each should lay a three-quarter-inch pipe to his premises.

These pipes would not carry all the water flowing through the main pipes, but it was not intended that they should. Mr. Budd, who then owned the Skinner property already mentioned, was permitted to use some water, and the agreement was still in force that each party should be entitled to one-half of anything received from other persons having the privilege of using the water. Whether or not the right of each party in the use of *43the water was confined to the quantity that would flow from a three-quarter-inch pipe, it was clear that each party was entitled to the same quantity.

In either view, the testimony exhibits, as I shall hereafter show, that the defendants have used more than their share of the water carried by the new main pipe. But I am of the opinion that, under the agreement between the parties, the right of each was limited to the insertion in the main pipe of a service pipe three-quarters of an inch in diameter. Each could use or waste the water so delivered as he pleased, but the remaining water, I think, belonged to the parties jointly. They could agree to enlarge their own pipes or to permit anyone else to take water from the main pipe. The water was to be primarily for the personal use of the parties, and no use could be conceded to any other person without the joint consent of the parties. Assuming, therefore, that Mr. Van Horn and Mr. Clark each has a right to the flowage of water through a three-quarter-inch pipe, as it flowed when the main pipe was originally laid, the second question occurs whether this right of Mr. Van Horn has been infringed by the defendants.

The total area of the two-inch main pipe is 3.1416. Mr. Budd was permitted to use a three-quarter-inch pipe, having an area of .4416. This leaves an area of 2.7 for Clark and Van Horn or 1.3499 each. How, there are in front of the hotel three three-quarter-inch pipes, the area of which is 1.3253. Then there are two one-half-inch pipes to the stable, having areas of .3297, making a total of 1.7180. Then there is a tap on Ryman’s property, which is a three-quarter-inch pipe, with an area of .4416, making altogether an area of 2.1598. This would leave for Mr. Van Horn .54.

Assuming, therefore, that the Wild ricks had the right to one-half of the water, after deducting Budd’s tap, instead of taking 1.3499 they are taking 2.1598.

If Clark’s right is limited to a pipe three-quarters of an inch in diameter, instead of taking .4416, he is taking nearly five times that amount.

In my judgment, as already remarked, without the consent *44of Mr. Van Horn, Wildrick has no right to take any more water than can be drawn from the main aqueduct through a pipe three-quarters of an inch in diameter. He has no right himself, nor has he a right to permit any other person to withdraw from the main pipe a larger quantity of water. His permission to Ryman to tap the main pipe was entirely without authority. Now, the result of the abstraction, of this amount of water has been to deprive Mr. Van Horn of the original flowage through his pipe. It is true that this effect is not continuous, but intermittent. The deprivation of water or force occurs when the taps other than those connected with the three-quarter-inch pipe to the Wildrick’s tavern happen to be open at the same time that the Van Horn taps are in use. But these annoying interruptions are not infrequent, and against them Mr. Van Horn has the right to be protected. In respect to the purposes for which the water flowing through the three-quarter-inch pipes to Mr. Van Horn’s is used, nothing need be said. It is clear that he has the right to use the amount of water which he originally used for the purposes to which it is now devoted.

I shall advise a decree enjoining the defendant Clark from using any taps other than those connected with a three-quarter-inch pipe leading to his hotel, and Ryman from tapping the' pipe at all.