Harwood v. Village of West Randolph

TAFT, J.

delivered the opinion of the court.

I. It does not appear that the commissioners adopted an erroneous rule in the assessment of damages. They were unable to tell whether the rights taken had any value above the damage to the petitioner’s farm and lands; this damage was awarded him, and it does not appear but that it was all the damage to his farm and lands resulting from the talcing of the water rights put to, and valued for, any use. Such is the inference from the report.

II. The extent of the petitioner’s recovery depends upon whether he had any right in the waters taken, except for his own use and with no right to sell. The water now used by the petitionee is taken from four springs, the waters of which, at the time of taking, ran in open well defined channels across the petitioner’s lands, into those below his, and these waters the petitioner coidd use for purposes of his own, and could sell unless to the detriment of the riparian owners below. If by artificial means he increased the flow of the springs he could sell such increase, if by such sale he did not lessen the natural flow from the springs. He had a right to the water that percolated through the soil of his lands, and the right to dig and develop springs, streams, and fountains, and the water thus obtained, he could *45 sell. If by force of tbe proceedings the petitionee obtained only the right to the water that naturally flowed onto the lands below the petitioner’s their claim might be urged with more effect; but. they took much more, viz : “All the fountains, springs and streams and the water therefrom ” on the petitioner’s land, with “ the right to go upon said pasture land and dig and develop fountains, springs, and streams and store and fit the same for use and dig ditches,” etc. It is unjust to say that waters thus obtained were not the absolute property of the petitioner. He had the right to sell and dispose of them, and if he had, the commissioners find his damages to have been three hundred dollars, and we think he should have judgment for that sum with interest since the filing of the first award, March 4, 1887, and costs. We do not understand that the commissioners assessed the damages upon the basis that the petitioner claimed that he had a right to sell all the water that flowed upon the lands below his, but in subordination to the rights of the lower riparian owners, while the petitionee claimed that he had the right to none except such as was necessary for his own use in connection with his own land and that it was upon this basis that the assessment of the different sums was made.

Judgment reversed and fidgment for the petitioner for $300.00 and interest since March lp, 1887, as damages, and costs.