defendants accepted the wool for the purpose 36. Sale - Deceit - Warranty. In case of properly sorting and manufacturing it into for deceit in the sale of a horse, where the cloth, and then to deliver to the plaintiff all the declaration alleges an absolute representation of cloth which said wool would properly make, soundness and a scienter of its falsity, and the &c. It appeared on trial, that both parties proof is of a representation of soundness "so expected that the defendants were not to keep far as the defendant knew," and that he in fact said wool separate and manufacture it by itself, knew the horse to be unsound, here is no but were to mingle it with other wools of like variance, and a recovery may be had since the grade and quality, and give the plaintiff his fair defendant is equally liable, and to the same share of the cloth, and of the fair and average extent, on both or either of the representations. quality from all the wools so mingled in the West v. Emery, 17 Vt. 583. process of manufacture; and that such was the 37. It is the same in an action for a false war. custom in all woolen manufactories. Held, ranty laid with a scienter, where the plaintiff that there was no substantial variance. Bruce relies only upon proof of false and fraudulent v. Greenbanks, 33 Vt. 226. representations. Wheeler v. Wheelock, 33 Vt. of machines from the stipulations of a written 38. Aliter in assumpsit upon an absolute contract, which variation was by direction of warranty, or for a false warranty, where the the defendant and was but slight, not affecting plaintiff relies upon proof of an absolute warthe character, value or utility of the machines, ranty and alleges merely, as a breach, that the and which was treated by the parties, not as fact warranted did not exist. Redfield, J., in altering the contract, but as a mode of perform- West v. Emery, 17 Vt. 583. ing it, was held (with hesitation), not to present 39. In an action on the case for fraudulent a variance from an averment in the declaration representations and concealment in a sale, the that the machines were made according to the price paid was set forth in the declaration less stipulations of the contract. Allen v. Thrall, than as proved. Held not to be a variance. 36 Vt. 711. Mallory v. Leach, 35 Vt. 156. 32. Record. The plaintiff, suing in his 40. Mill-dam. Under a declaration in case personal capacity, declared upon a judgment as for unlawfully maintaining a dam across a recovered by him. The judgment proved was stream, whereby the water was set back upon recovered by him as administrator, &c. Held the plaintiff's land ;-Held, that the declaration no variance. Allen v. Lyman, 27 Vt. 20. was sustained by proof that the defendant 33. In assumpsit, the declaration, by way kept the sluices or gates in his dam shut at of recital and inducement to the statement of times when he was bound to keep them open, the consideration and the defendant's promise, whereby the water was set back, &c. Hutchaverred that the plaintiff, before that time, had inson v. Granger, 13 Vt. 386. Williams, C. instituted a certain suit in his name. The J., dissenting. proof was, that the suit was in the name of 41. Execution. A declaration for not himself and another, his former partner, but levying, collecting and returning an execution that he was the sole owner of the demand. is not sustained by proof of a levy and collecHeld, that these words, in his own name, were tion of the execution, but a neglect to pay over unnecessary, and that there was not a fatal to the plaintiff the money so collected. Barber variance. Cross v. Richardson, 30 Vt. 641. v. Benson, 9 Vt. 171. 34. An averment in a declaration upon a 42. Highway. In an indictment against a recognizance, that the court in the principal town for not keeping in repair a highway, the case taxed the plaintiff's costs at a sum named, was held not to be descriptive of the record so as to occasion a variance, where the record produced showed no taxation; but was only an averment of a fact, and a failure of proof of it. Blood v. Morrill, 17 Vt. 598. highway was described as entering the town from F, near the dwelling house of a person named, passing by two houses of individuals named, and passing southerly through the town to and across the north line of the town of C. The description was in all these respects as proved, except 35. To an action and declaration upon a that the line through which the road entered judgment for 573 dollars and 47 cents, the C was more nearly a west than a north line of defendant pleaded in abatement the pendency that town-no line of C being truly a north line of a former action on a judgment for 523 dollars of the town. Held, that there was here no fatal and 47 cents, and averred that it was the same repugnancy; that the more controlling and ceridentical judgment now declared upon. Held, tain parts of the description should prevail over that it would have been sufficient to aver that which was less so; and as the supposed merely that both suits were for the same cause variance did not apply to that part of the road of action; but that the plea was falsified by a which was affected by the prosecution, it was comparison of the judgments, as described, and not substantial or important. State v. Fletcher, was ill. Lincoln v. Thrall, 34 Vt. 110. 13 Vt. 124. 43. Number of lot Reputation. The objection, if he should see fit, and have the number of a lot, where it is given by way of question passed upon; and that, by not doing description merely and is not a matter of this, he had waived his objection, or rather the identity, may be proved by reputation; as, that objection was not made, nor decided. Ib. it was so called and treated.. Davis v. Fuller, 12 Vt. 178. VILLAGE. 44. In trespass qua. clau. describing the close as lot No. 171, it appeared that the trespass was committed south of the true line of 171, and upon lot No. 172 according to the true 1. Boundaries. Under a statute authorizline, but that the several owners of these two ing selectmen "to lay out and establish the lots had for more than 15 years acquiesced in limits and bounds of a village ";-Held, that another line, as being the true divisional line a description by naming persons only was between them, which would include the place of insucffiient; that a description of territory, the trespass in lot 171. Held, that the declara- a tract, a certain superficies with distinct tion well described the locus as part of lot No. boundaries, was necessary. Cutting v. Stone, 171; that it had become such by acquiescence. 7 Vt. 471. Burton v. Lazell, 16 Vt. 158. II. How TAKEN ADVANTAGE OF. 2. A statute for establishing a village required the selectmen to define "its limits and bounds." In attempting this, they bounded it N by the town line, E by Connecticut river 45. A variance between a bond and the dec-|(which were definite and certain lines), S by the laration upon it cannot be reached by demurrer, south line of lands of A, and W by the west unless the bond is spread upon the record in the line of lands of B. These two last lines, as declaration, or upon oyer. Denton v. Adams, given, were too short to connect with each 6 Vt. 40. other, and the west line too short to connect 46. A variance cannot, as matter of law, with the town line; and it was objected that be predicated of a contradiction of the facts the lines given did not inclose the territory to alleged in the declaration, by the testimony compose the village. Held sufficient; for that of the defendant. Curtis v. Burdick, 48 Vt. 166. 47. No objection on the ground of variance, not raised in the county court and which might there have been obviated by amendment, should be sustained in the supreme court, unless the variance is both apparent upon the record, and of such a character that the judgment, if affirmed, would fail to protect the parties in reference to the matter actually litigated. Peck v. Thompson, 15 Vt. 643. Morrill v. Derby, 34 Vt. 450. Hard v. Brown, 18 Vt. 87. Brintnall v. Sar. & W. R. Co., 32 Vt. 665. by protracting the S and W lines, as given, HIGHWAYS, 25, 26. Williams v. VOTES AND VOTING. written." Temple v. Mead, 4 Vt. 535. 1. Votes printed were held to answer the 48. Where a paper is objected to for vari- constitutional requirement of votes "fairly ance, it should be specified in what the variance consists. Under a general objection for variance, it is no part of the duty of the court to hunt for the particulars. Hills v. Marlboro, 40 Vt. 648. 2. Quære, whether an action lies against a constable, or other officer presiding at a freeman's meeting, for refusing to receive a legal vote, where this is not malicious, but only an error of judgment on a point considered doubtful. Ib. 49. In a trial by the court, a paper was offered in evidence and was objected to by the defendant on the ground of variance from the 3. G. S. c. 1, s. 70, enacts: "If any person declaration, without specifying wherein, as is shall on the same day vote in more towns than required by the rules of practice. The paper one for the same officers, he shall forfeit, &c." was received by the court, "subject to the One having voted in one town for repreobjection, pro forma, to which the defendant sentative to the General Assembly from that excepted"; but the matter was not afterwards town, afterwards, on the same day, voted in brought to the attention of the court. Held, another town for representative from this last that the question of variance was not so made town. Held, that his second vote was illegal, and decided below as to be properly before the whether the first was or not; and that he was supreme court ;-that receiving the paper sub- liable under the statute whether his action was ject to objection, was reserving to the defendant attributable to corruption, or only to ignorance. at a future stage of the trial to point out his State v. Perkins, 42 Vt. 399. W. WAGER. 1. At common law, as adopted in this State, all wagers are held to be illegal; and no money can be had upon a wager or contract of betting. Collamer v. Day, 2 Vt. 144. 22 Vt. 293. 27 Vt. 428. Danforth v. Evans, 16 Vt. 538. Tarleton v. Baker, 18 Vt. 9. West v. Holmes, 26 Vt. 530. 2. Where the event which is to determine the wager has transpired, and the wager has been paid, it cannot, independent of a statute, be recovered back. Danforth v. Evans. chance, does not come within G. S. c. 119, s. 13, as money lost at a game or sport.' West v. Holmes, 26 Vt. 530. 8. Stock-jobbing. A contract for the sale and transfer of railroad stock at a future day for a specified price, where an actual transfer is intended and not a recovery of differences, and where the seller owns the shares at the time of the promised delivery, is not a stock-jobbing or wagering contract, and is valid. Noyes v. Spaulding, 27 Vt. 420. 9. Lex loci. In general assumpsit to recover for money lost at play in the State of 3. As between the parties to a wager, the New York, it was agreed, upon a case stated, wager is revocable at any time before the event that by the laws of New York a recovery could happens; and a revocation places the party be had therefor in a suit there brought. Held, revoking in statu quo, and entitles him to a that such stipulation is not to be understood as return of the deposit. As against the stake- referring to any statutory right to sue for a holder, the loser may demand of him a return penalty, which would be local, but that, by the of the deposit, until, with the loser's express laws of New York, the money is treated as the or implied assent, it has been paid over to the plaintiff's money in the hands of the defendant winner. If the stakeholder pays over the held to the plaintiff's use; that this right of deposit to the winner after demand made by the action is transitory, and may be enforced here, loser, he is liable to the loser, or the loser may, whatever may be the Vermont statute or the pursue the money in the winner's hands. Tarle- rule of decision as applied to wagers made in ton v. Baker, 18 Vt. 9. West v. Holmes, 26 this State. Flanagan v. Packard, 41 Vt. 561. Vt. 530. 4. Where two resident citizens of Vermont went into Canada for the purpose of making a wager on the result of a presidential election, and there concluded such wager;-Held, that the wager was illegal, the same as if made in Vermont. Tarleton v. Baker. WASTE. The law considers everything to be waste which does a permanent injury to the inheri5. The plaintiff sold the defendant a horse tance. But, owing to the different state of worth $25, and took the defendant's note there- many parts of this country, the English rule as for for $50, payable "on the day that Martin to what acts constitute waste does not obtain in Van Buren is re-elected President of the United our courts. Thus, it is not in this State waste States, with interest annually," and delivered to cut down wood or timber so as to fit the land the horse to the defendant. Held, that this was for cultivation, provided this would not dama wagering contract and was void; that the age the inheritance and would be according to plaintiff could not recover upon the note; nor the rules of good husbandry, taking into view for the horse, as sold, since he did not revoke the location and situation of the whole farm; before the determination of the wager. Dan- and this, although the wood or timber so cut forth v. Evans, 16 Vt. 538. 6. That is not a wager, where one merely hazards a loss of something without the expectation, in any event, of having more in return than he ventures; as where he performs a service for which he is entitled to compensation, but which he agrees to relinquish upon the happening of some future event-like a cure no pay" contract-which is not illegal, as being a wager. Edson v. Pawlet, 22 Vt. 291. "no may have been sold, or consumed off the farm. Keeler v. Eastman, 11 Vt. 293. As to remedies for WASTE, see MORTGAGE, II. WATER COURSE, AND WATER 1. Right as owner of the land. The 7. Money lost upon an ordinary wager, and common law as to the use of running streams, not at some game or play, either of skill or is not applicable to our circumstances, and is not adopted. Martin v. Bigelow, 2 Aik. 184. to any extent, if he does not thereby, in any (This distinction repudiated. See infra.) material degree, diminish the beneficial use to 2. Every owner of land over which a stream other proprietors, either above or below. Norflows has the right to the natural flow of that ton v. Volentine, 14 Vt. 239. Ford v. Whitlock, stream; a right peculiar to himself as owner 27 Vt. 265. of the land, not derived from occupancy or 9. Where the diversion of a stream upon appropriation; and he can never be deprived one's own land affects those above or below of this right except by grant, actual or presump- unfavorably, it requires fifteen years to give the tive. Whenever this right is encroached upon right to continue the stream in its new channel. by obstructions or perversions, above or below, Ib. and actual injury ensues to any material 10. Where the diversion of a stream upon amount, an action accrues for such injury, one's own land, by his own act, affects other however valuable or convenient the use of such proprietors favorably, and he acquiesces in the obstructions may be to him who erected them. Davis v. Fuller, 12 Vt. 178. Johns v. Stevens, 3 Vt. 308. Adams v. Barney, 25 Vt. 225. stream running in the new channel for so long a time that new rights have in fact accrued, or may be presumed to have accrued, in faith of 3. Mere prior occupancy does not give an the new state of the stream, the owner is bound exclusive right to the use of the water of a by such acquiescence, as being of the character stream; and it is not necessary for an owner of a public dedication; and he cannot return the to appropriate the water of a stream to some stream to its former channel. Ford v. Whitspecial use before he can maintain an action for lock, 27 Vt. 265. its diversion. Adams v. Barney. 11. So held, where the change was effected by a sudden and unusual flood, and for ten years the stream had flowed in its new channel. Woodbury v. Short, 17 Vt. 387. 4. Relative rights. A servient proprietor of land cannot complain of any use which the dominant proprietor may make of the water of a stream, so long as he is not sensibly affected 12. Where one is entitled to have a stream by that use. No prescription begins to run of water flow in a particular place, or manner, until a right of action accrues; and no right he may recover for a wrongful diversion of it, of action accrues until injury is inflicted. Nor-without proof of actual damage. The law ton v. Volentine, 14 Vt. 239. Hurlbut v. implies damage in such case, and the party is Leonard, Brayt. 202. See 12, infra. 5. A mill owner having a subordinate right to the use of the water of a stream must take notice, for himself, when he is infringing upon the right of his superior, and not reduce the water so low as to interfere with that right. The owner of the superior right is entitled to have the water at the proper height, at all times when he may need to use it; and is not obliged to wait for the water to accumulate, even for one minute. Rood v. Johnson, 26 Vt. 64. entitled to, at least, nominal damages. So held, where the diversion was occasioned by acts done wholly on the defendant's own land. Chatfield v. Wilson, 27 Vt. 670. 13. -on another's land. The owner of land inundated by a stream breaking away in a freshet from its accustomed channel, may lawfully turn it back into its old channel upon the land of another; but cannot, to prevent injury to his own land, turn it so that it shall flow upon such other person's land elsewhere than in its old channel. Tuthill v. Scott, 43 Vt. 525. See Redfield, J., 26 Vt. 72. 6. Where the plaintiff had the prior right to use the water of a stream for the use of his mill in low water;-Held, that he could insist 14. Opposite owners. Where the proon this right, notwithstanding a change in the prietors on opposite sides of a stream own each bed of the stream by the formation of a sandbar to the centre of the stream, neither has a right to in front of his flume, so long as he interposed extend a dam, past the centre, upon the land of no hindrance to the removal of it by the the other, for the purpose of diverting onedefendant, who owned a subordinate right to half the water of the stream for his use, the water. Ib. although such diversion causes no appreciable injury to the other's present use of the water; and, in such case, the party upon whose land the dam is so wrongfully built may lawfully remove such part of the dam. Adams v. Barney, 25 Vt. 225. 15. Where the centre of a running stream is the line between two proprietors, each has the 7. Conveyance. Where land is conveyed upon which there is a stream of water, the grantor may reserve the use of the water to himself; or, he may convey the use of all or of a portion of the water, as a mere incorporeal hereditament, retaining the fee of the land in himself. Ib. Miller v. Lapham, 44 Vt. 416. 8. Diversion on one's own land. The right to have the stream flow in its natural and owner of land through which a stream flows accustomed channel; and neither has the right may, on his own land, obstruct the natural to interrupt or alter such natural and accuschannel, change its course, divert it, and restore tomed flow, without the consent and to the it again to its natural channel at any time, and injury of the other. In such case, either may use the water, in any reasonable and proper he has not a right to wantonly and needlessly, way, for ordinary culinary purposes, and for and out of the ordinary course in such cases, drink and the watering of cattle, not depriving and not in the service of his substantial interest the other of an equal enjoyment of the same and benefit in the use of his mill in a reasonable right; and he may facilitate the enjoyment of manner, to throw or permit them to go into the this right by ordinary and appropriate means—stream, when, by so doing, injury will be as, in this case, by a tub near the brook receiv- caused to the mill owner below. Jacobs v. ing water therefrom, and an aqueduct thence to Allard, 42 Vt. 303. his house and barn. Chatfield v. Wilson, 31 21. Such use of the upper mill not being 358. (S. C. 28 Vt. 49.) unreasonable or unlawful, it is suggested that 16. Where the channel of a river is the the proprietor below should change his works boundary between lands, the sudden changing to conform to the altered circumstances of the of such channel, though by artificial means, stream. Ib. 305. 28 Vt. 463. has no effect to change the boundary. This 22. established principle is applicable as well to ure. public as to private rights; as, where the river forms the boundary between States. State v. Young, 46 Vt. 565. Current changed by lawful structWhere a railroad corporation has rightfully and without negligence, want of care or skill, turned a river, it is not obliged thereafter to observe the action of the water, and take timely measures to prevent its encroachment upon neighboring lands. Norris v. Vt. Central R. Co., 28 Vt. 99. 17. Right in common. Where there is a right to use in common the water of a stream, the use of the whole water by one party, when the other has no machinery or provision for its 23. A riparian proprietor whose land has use, will be presumed to be with the consent and for the benefit of all, and is not tortious, Howe Scale Co. v. Terry, 47 Vt. 109. been gradually washed away by a change in the course of the current of the stream, occasioned by necessary erections made above his 18. Waste from mills. In an action for the land in the stream by a railway company under obstruction of the plaintiff's water-wheel by its charter, has no right of action against the tan-bark discharged at the defendant's tannery company therefor. The same is the law as to in the stream above and suffered to float down individuals. Such is not a cause of injury to the plaintiff's mill, the case being free of any whose operation can, in the nature of things, question of grant or prescription;-Held, that be guarded against, nor which inevitably proit was error to exclude evidence that it had duces such effects; and the damage is too been the uniform custom of the country to remote and uncertain a consequence to furnish discharge the spent bark of tanneries into the the basis of an action. Henry v. Vt. Central streams on which they were situated; that this R. Co., 30 Vt. 638. practice had been submitted to by the dam 24. Underground streams. owners below, and that tanneries could not be conducted at any profit without such means of disposing of the spent bark. Snow v. Parsons, 28 Vt. 459. There are no correlative rights between adjoining proprietors of lands in the use of percolating underground streams, or of water under the surface. No action lies for digging upon one's own land, so 19. The reasonableness of such use of a as to cut off an underground supply to the streams determines the right; and this depends adjoining land. Chatfield v. Wilson, 28 Vt. upon the extent of the detriment to the riparian 49. S. C. 31 Vt. 358; nor for sinking or conproprietors below. If it essentially impairs structing upon one's own land a barrier to the the use below, then it is unreasonable and underground flow from the adjoining land. unlawful, unless it is a thing altogether indis- Harwood v. Benton, 32 Vt. 724. pensable to any beneficial use at every point of 25. Corner in a stream-Alluvion. the stream. This question of the reasonable- Where adjoining proprietors of land on the ness of the use, when in its nature doubtful and same side of a stream were each bounded on the not settled by custom, is one of fact;-a stream, and the corner between them was question of care and prudence in the use-and indicated as a tree upon the bank of the stream; is to be determined by the tribunal trying the -Held, that the true corner was at that point facts. in the centre of the stream nearest the tree ; Ib. Redfield, C. J. 20. Held, that one in the use of his shingle and held (Redfield, J., dissenting), that this mill, in a reasonable manner, has the right to was not a fixed corner, but was movable with discharge the sawdust, shavings and waste from the changes of the stream, being that point in it into the stream in the ordinary course of the centre of the stream nearest the tree at the using such mills, and that he is not bound, as time being, though not in the direction of the matter of law, to prevent them from going into alluvion formed in front; and following this the stream and have them accumulate, or to theory, where alluvion had formed along the draw them off and deposit them so that they west shore and in front of the two parcels, and cannot get into the stream. On the other hand, the course of the stream passing the tree had |