Vermont Supreme Court Reports
STATE v. MALMQUIST, 114 Vt. 96 (1944)
40 A.2d 534
STATE v. WALTER A. MALMQUIST.
Supreme Court of Vermont.
May Term, 1944.
Opinion filed October 3, 1944.
Opinion on Motion for Reargument filed January 2, 1945.
Interest of Public in Maintenance of Water Level of Inland Lakes.
1. The State of Vermont has an interest in the waters of its
inland lakes, distinct from the interests of the littoral
owners: (a) such a lake being a body of public and
boatable water, its bed or soil is held by the people of
the State in trust for the public uses for which it is
adapted; (b) the State has the right and duty of
preserving and increasing the supply of fish therein; and
(c) the State may enjoin or prosecute for any drawing
down of the waters of the lake to such extent as to
constitute a public nuisance.
2. Where the original level of a lake has been raised by
artificial means and maintained for a long period at the
new level, such changed level may be treated as the true
natural level of the lake.
3. One who has accepted the benefits bestowed by a statute, or
who has acquired rights of property necessarily based
upon it, may not thereafter attack that statute as
4. Where the legislature has by statute, the constitutionality
of which is not in question, granted to individuals
permission, by erecting a dam, to raise the level of a
lake in order to provide power for mills below the
outlet, control of the lake level by means of such dam
must be limited to mill purposes; and, in addition, any
lowering of the level of the lake which is harmful to the
public interests is unreasonable and becomes a public
5. Although equity will interfere to prevent the commission of
repeated acts done or threatened, which are wrongful and
injurious to the property or rights of another, it will
not do so where an act is single and temporary in nature;
in such case the injured person is left to his remedy at
6. When a court of equity by injunction restrains the
excessive lowering of the level of a lake, the
restraining order should define the limit beyond which
such level should not be lowered.
7. In the matter of maintaining the level of the waters of an
inland lake, the State is a trustee for the people and
may not agree to or consent to any change in the level
which will be injurious to the people of the State.
8. The right to lower the level of the waters of a public and
boatable lake to such extent as to injure the interests
therein of the people of the State cannot be gained by
9. On appeal, doubtful findings are to be construed in support
of the decree if this can reasonably be done and the
Supreme Court will assume, in favor of the decree, that
the trial court inferred such facts from the other facts
certified as it ought to have done, or might fairly have
done; but the findings will not be supplemented by other
facts not fairly inferable as resulting from them.
10. Where the trial court has drawn an unwarranted inference
from the facts as found such inference is to be
disregarded on appeal.
11. The Supreme Court will not supply missing facts by an
examination of the transcript, for the transcript does
not enlarge the findings even though referred to therein,
or in the bill of exceptions, this rule applying equally
to causes at law and in equity.
12. The Supreme Court has power, in the exercise of its
discretion, to remand a cause for further proceedings.
SUIT IN EQUITY to enjoin the unreasonable and arbitrary
lowering of the level of waters in an inland lake. In Chancery,
Orange County, Black, Chancellor. After hearing the evidence and
filing written findings of fact, the Chancellor dismissed the
bill. Reversed and remanded. Motion for reargument denied.
Alban J. Parker, Attorney General, and Lawrence C. Jones and F.
Ray Keyser, special counsel, for the State.
George L. Hunt for the defendant.
Present: MOULTON, C.J., BUTTLES, STURTEVANT and JEFFORDS, JJ.,
and CLEARY, Supr. J.
This is a suit in equity wherein the State of Vermont seeks to
enjoin the defendant, the owner of a dam across the outlet of
Lake Fairlee in Orange County, from unreasonably and arbitrarily
drawing down the waters of the lake by means of the gate and tube
in the dam. After hearing the evidence and filing written
findings of fact the Chancellor dismissed the bill, and the cause
comes before us on the State's exceptions.
The findings disclose that Lake Fairlee is more than two miles
in length, covering approximately 1700 acres, and is a body of
public boatable water within the meaning of Sec. 63 of the
Vermont Constitution. It is very well adapted for the propagation
of fish and the production of fish food, the parts best suited
for these purposes being the marginal or shore areas where the
spawning beds and aquatic vegetation are situated. From 1932 to
1939, inclusive, the State, through the Fish and Game Department,
has stocked the lake with large numbers of black bass adults and
fingerlings, bullhead fingerlings and pike perch fry. Since 1900
a number of summer cottages, hotels and recreational camps, and
a public camping ground have been erected on or near its shores.
The outlet of the lake is at its southwesterly end and the
water flows in a general southwesterly direction to the
Ompompanoosuc River which, in turn, empties into the Connecticut.
There has been a dam at the outlet in approximately the same
location as the present one since before 1797, but the Chancellor
is unable to find the height of the original dam.
The defendant purchased the dam on December 31, 1937, and
derives his title through a series of conveyances from Eldad Post
who deeded the dam and dam site to Aaron Post by warranty deed on
August 21, 1798. On November 10, 1797, the General Assembly of
this State passed an act which recited that: "Whereas it is
necessary to raise the waters in Fairlee Lake, so called in order
to supply with water several mills standing on the stream which
empties out of said lake and the supplying said mills with a
sufficiency of water to be of great public utility, especially to
the inhabitants of West Fairlee, Vershire, Strafford, Thetford
and Norwich . . . . it is hereby enacted by the General Assembly
of the State of Vermont that liberty be and is hereby granted to
said Aaron Post, his heirs and assigns to erect and keep a dam
across the outlet of said lake, so as to raise the waters in said
lake two feet upon a level above the rock at the south end of
said Post's saw mill dam, which was anciently the bed or bottom
of the stream or outlet of said lake." The act also provided for
commissioners to assess the damages to the owners of the lands
bordering upon the lake "upon the supposition that said lands be
perpetually flowed," with a right of recourse to the County Court
by any owner thinking himself to be aggrieved by the assessments.
No steps were taken to increase the height of the dam until 1831,
when in pursuance
to the Act of 1797 the water of the lake was raised 18 inches on
a level above a point in the bed rock at the southern end of the
dam which was anciently the bed or bottom of the outlet. In 1904
or 1905 the height of the dam was again increased but the
Chancellor is unable to find to what extent the level of the lake
was raised. At about the time this was done the defendant's
predecessor in title purchased flowage rights from the owners of
property bordering the lake. In 1939, the dam, having become in
bad repair, was rebuilt at the expense of the littoral owners,
with the consent and under the direction of the defendant. There
has been no change in the elevation of the spillway since 1904 or
1905, and there has been a tube three feet in diameter equipped
with a gate in the same location in the dam ever since that time.
There are two dams in the Ompompanoosuc River, one known as the
Kimball dam, and the other as the Post Mills dam, situated
respectively about a quarter of a mile and between one and two
miles below the lake. Neither is connected with the dam at the
outlet, or with each other, by penstock or sluiceway. Both are
the property of the defendant, who owns and operates a bobbin
mill and a saw mill at the site of the Post Mills dam.
A saw mill, powered by a water wheel, was at one time located
at the dam at the outlet but discontinued operation in 1891, when
the business was removed to the Post Mills dam and thereafter the
outlet dam was used only for storage purposes. Between 1933 and
1937 the dam was not in use because the mill was shut down. In
1938, 1939 and until November, 1940, the defendant operated his
mill by water power and used the water from Lake Fairlee for this
purpose. Since November, 1940, he has used a combination kerosene
engine and steam power unit, except during a few weeks in
September and October, 1941, when his engine was out of repair.
At the time of the hearing steam power was being used.
The present dam is constructed of cement and stone, extending
approximately north and south, about 183 feet long, including a
spillway of 31 1/2 feet some 10 inches lower than the adjacent
parts of the dam. The gate house is situated at the northern end
and under it there is a tube 3 feet in diameter fitted with a
gate. The dam rests upon a ledge of rock which was anciently the
bed of the outlet stream. This ledge pitches downward from south
to north. The crest of the spillway is 2.14 feet above the
highest point of the rock at the southern end of the dam, on the
down stream side, and
10.4 feet above the lowest point at the northern end, on the
upstream side, which is 1.8 feet below the bottom edge of the
tube under the gate house. A part of the rock near the tube was
artificially excavated by a former owner of the dam at some time
before 1891. Before the erection of any dam, that is, at some
undetermined date prior to 1797, the water flowing through the
outlet passed over the lowest point in the ledge, which was then
situated somewhat northerly from, and beyond, the present dam and
the water level of the lake, normally and not in times of drought
or high water, was slightly above this lowest point and at least
as low as the bottom edge of the tube on the upstream side.
There is no low water mark at Lake Fairlee, but there is a
definite water line marking the point where the land growth
begins which has been made by the maintenance of the water at the
present spillway level, under normal conditions, unaffected by
drought or high water since 1904 or 1905. Between 1891 and 1933
the gate in the tube has been occasionally opened and the water
drawn down below the spillway level, but never more than 2 or 3
feet. Since he acquired title the defendant has drawn down the
water in connection with his business, but to what extent does
not appear. Between 1904 or 1905 and 1939 there was considerable
leakage in the dam, but this did not cause the water to recede
more than 2 or 3 feet. Since the earlier date just mentioned the
level has not been more than 3 feet below the crest of the
spillway except in 1911, 1939 and 1941. The reason for the
recession in 1911 does not appear; in 1939 the repairs to the dam
necessitated the reduction of the level to a point about 6 feet
below the spillway, as to which no complaint is made; the drawing
down of the water during September and October, 1941, is the
basis of this proceeding. Since 1907 there has been a normal
fluctuation of the water level, not in times of drought or high
water, of two or three feet.
In the summer of 1941 the defendant said to members of the Lake
Fairlee Association, an organization of the littoral owners, that
he was interested only in the sale of his water rights for
$20,000, or the freedom to use the water of the lake in his
business when and as he pleased. About September 1st of that year
he caused the gate in the dam to be opened and to remain open
continuously until about November 1st with the result that the
water level was lowered to a point about six feet below the crest
of the spillway, large areas of mud banks were exposed, a
was generated by the decaying aquatic vegetation, and the
littoral owners were impeded in their access to the lake from
their cottages and boat houses. This lowering of the water was
not reasonably necessary for the operation of the defendant's
mill, which was operated by water power only during a part of the
time when the gate was left open. Indeed the floor of the flume
broke near the wheelpit in the fall of 1941 and the opening of
the flume was boarded up.
It is detrimental to the propagation of fish in the lake when
the water level is intermittently lowered to a point two feet or
more below the crest of the spillway during the spawning season,
March 15 to July 15, the marginal or shore areas are exposed, and
this results in the destruction of nests, eggs and spawn. At
other times of the year a fluctuation of not more than two feet
is not harmful, but a permanent reduction in the level to a point
two feet or more below the spillway crest would reduce the area
of plant growth and expose the rocks which form fish retreats and
thus decrease the piscatorial capacity and productivity of the
lake. The use of the lake for boating or bathing, and its scenic
beauty are not found to be substantially injured by a reduction
of two feet in the level, but a lowering to the extent of six
feet, or even less, is harmful in these respects.
The first question to be considered is the standing of the
State of Vermont as party plaintiff in this suit. The defendant
argues that it is acting only as a catspaw for the owners of the
lands bordering on the lake, who have no legal interest in the
matter because the flowage rights upon their properties have long
since been conveyed to the defendant's predecessors in title. But
the State has an interest of its own quite apart from that of
private individuals, and we treat this cause without regard to
any injury that may have been suffered by the littoral owners.
Since it is a body of public and boatable water within the
meaning of our Constitution (that is, capable of use for "common
passage" as a highway, Trout and Salmon Club v. Mather, 68 Vt. 338,
345, 35 A 323; Boutwells v. Champlain Realty Co., 89 Vt. 80,
87, 94 A 108, Ann Cas 1918 A 726) the bed or soil of the lake is
held by the people of the State in their sovereign capacity in
trust for the public uses for which it is adapted and the State
is required to preserve the water for the common use of all.
Hazen v. Perkins, 92 Vt. 414, 419, 105 A 249, 23 ALR 748; State v.
Quattropani, 99 Vt. 360, 363, 133 A 352.
Moreover, the State has not only the right but the duty to
preserve and increase the supply of fish, which, being ferae
naturae, are the common property of the public. State v.
Theriault, 70 Vt. 617, 622, 41 A 1030, 43 LRA 290, 67 Am St Rep
695; State v. Haskell, 84 Vt. 429, 433-4, 79 A 852, 34 LRANS 286.
This has been done, in the present instance, by the stocking of
the lake, under the authority of G.L. 5592. In State v. Haskell,
supra, it was held that it is a public right to have migratory
fish afforded access to their feeding or spawning grounds which
may be regulated and protected by the State, and it is clear that
this principle is of equal application where the fish are not
migratory but inhabit a single body of water. Lastly, where the
drawing down of the water in a boatable lake constitutes a public
nuisance, the State may proceed against the responsible party
either in equity or by a criminal prosecution. Hazen v. Perkins,
92 Vt. 414, 421, 105 A 249, 23 ALR 748.
It follows that where the water level of such a lake is reduced
so that the common right of boating or fishing is impaired, or
the food supply of the fish therein diminished, and the
propagation of the fish curtailed, a public nuisance is created,
and the State may proceed, as plaintiff, in an appropriate manner
against the person whose act has produced any or all of these
The defendant insists that he has not lowered the water below
its natural level and therefore has committed no wrongful act. He
bases this contention upon the theory that the natural level is
that which existed before any dam had been erected across the
outlet, which, he claims, is the lowest point in the ledge under
the tube. But the maintenance of the lake at its present level
since 1904 or 1905 has given to this level, as regards the
submerged lands, all the characteristics of a natural lake, the
artificial level has become the natural level, and the entire
body of water has become subject to the common rights of fishing
and navigation and to all other incidents of public water.
Village of Pewaukee v. Savoy, 103 Wis 271, 79 N.W. 436, 50 LRA 836,
74 Am St Rep 859, 860-1; Mendota Club v. Anderson, 101 Wis 479,
493, 78 N.W. 185. This principle is impliedly recognized in Hazen
v. Perkins, 92 Vt. 414, 420, 105 A 249, 251, 23 ALR 748, where the
Court speaks of the natural level of Lake Morey, "as regulated
and controlled by the dam and sluice erected at the outlet."
The defendant contends that the Act of 1797 is
unconstitutional, basing his argument upon the statement in Hazen
92 Vt. 414, 419, 105 A 249, 23 ALR 748, that the General Assembly
cannot grant to private persons for private purposes the right to
control the height of the water in a public and boatable lake, or
the outflow therefrom, by artificial means, for such a grant
would not be consistent with the trust that requires the State to
preserve such water for the common and public use of all. His
conclusion seems to be that any dam erected by virtue of the act
across the outlet is an unlawful structure, and he says that in
drawing down the water he was only doing in part what the State
was in duty bound to do in order to restore the water level to
its ancient condition.
However, it is not open to the defendant to question the
validity of the Act. For more than a century he and his
predecessors in title have enjoyed the privilege conferred by it.
In his answer to the bill of complaint in this cause he alleges
that he is the legal owner of the water rights and privileges in
question together with the dam, and that his use of the water has
been for the maintenance and operation of his mill. He claims
flowage rights which can have accrued to him only by virtue of
the authority of the Act, and also the right either to use the
water or to sell the dam. One who has accepted the benefits
bestowed by a statute, or who has acquired rights of property
necessarily based upon it, may not thereafter attack that statute
as unconstitutional. Brattleboro Retreat v. Town of Brattleboro,
106 Vt. 228, 242, 173 A 209; Frost v. Corporation Comm. of the
State of Oklahoma, 278 U.S. 515, 527, 49 S Ct 235, 240, 73 L Ed
483; Buck v. Kuykendall, State Director of Public Works,
267 U.S. 307, 316, 45 S Ct 324, 326, 69 L Ed 623, 38 ALR 286; Grand Rapids
and Indiana R. Co. v. Osborn, Comm'r. of Railroads, 193 U.S. 17,
29, 24 S Ct 310, 48 L ed 598, 604; Daniels v. Tierney,
102 U.S. 415, 421, 26 L ed 187, 189; Nuckolls v. United States,
76 F.2d 357, 360; Vickery v. Blair et als, County Comm'rs., 134 Ind 554,
32 N.E. 880, 881; McMahon v. Cooney, Governor, 95 Mont. 138,
25 P.2d 131, 134; City of St. Louis v. St. L.I.M. and S. Ry. Co., 248 Mo
10, 154 S.W. 55, 60; Deverson v. Eastern R.R. Co., 58 N.H. 129, 131.
"Undoubtedly, men may not take advantage of a law when it suits
them, and then attack it when it does not." Owens v. Corporation
Comm. of the State of Oklahoma, 41 F.2d 799, 803. For present
purposes at least, we treat the Act as constitutional.
It remains to consider whether, upon the facts found, the State
is entitled to the injunction it seeks.
The Act of 1797 is to be construed as permitting a reasonable
use of the water of the lake. If this were not so, the raising of
the water level would be of no benefit in the operation of the
mills, for which the intent of the statute was to insure a supply
The question is, what are the limits of a reasonable use under
the Act. It is argued on behalf of the State that any use that is
not for mill purposes is unreasonable, and with this we agree.
Beyond this, the test is not the whim or pleasure of the owner of
the dam, but the interest of the public, and a reduction of the
water level that is substantially harmful to that dominant
interest we hold to be unreasonable and a public nuisance. But we
do not regard the fact that the defendant's mill is situated on
the Ompampanoosuc River, and not upon the stream which connects
the lake with the river as depriving him of all right to use the
water impounded by the dam.
While the defendant has drawn the water of the lake upon
various occasions since he acquired title to the dam there is no
finding as to the extent to which he did so except during
September and October, 1941. His conduct at that time was
wrongful and an infringement of the rights of the State. It
constituted a public nuisance, and, if persisted in, or
threatened with repetition, would be a proper subject for
injunctive relief. Hazen v. Perkins, supra. However, it has not
been repeated. We have been informed by counsel during argument
that since the gate has been closed the water has risen and the
lake has reached its former level. If the record showed no more
than this, an injunction could not properly be issued, for
although equity will interfere to prevent the commission of
repeated acts done or threatened, which are wrongful and
injurious to the property or rights of another, it will not do so
where an act is single and temporary in nature, and, in such a
case, it will leave the aggrieved party to pursue his remedy at
law, Murphy v. Lincoln, 63 Vt. 270, 280, 22 A 418; Griffith v.
Hilliard, 64 Vt. 643, 644, 25 A 427; Averill v. Vermont Valley
R.R. Co., 88 Vt. 293, 298, 92 A 220; Holton v. Hassam, 94 Vt. 324,
328, 111 A 389; Kennedy v. Robinson, 104 Vt. 374, 376, 160 A 170;
Kasuba v. Graves, 109 Vt. 191, 199, 194 A 455. But, as we have
seen, the defendant told the members of the Fairlee Lake
Association that he was interested either in the sale of his
water rights for $20,000.00
or the liberty to use the water of the lake in his business when
and as he pleased. It is conceivable that this statement, taken
in the light of his subsequent act in causing the gate to remain
open continuously for two months, was indicative of a design to
capitalize the nuisance value of his ownership and control of the
dam, by compelling the littoral owners, if they would avoid
further inconvenience and the depreciation of their properties,
to purchase the dam from him at the price of his own choosing,
and in this aspect it would not be difficult to construe his
language as a threat. It is not necessary, however, to ascribe
this particular meaning to what he said and did. The words
"liberty to use the water of the lake in his business when and as
he pleased" are the expression of an intention, which is the
equivalent of a threat, Kennedy v. Robinson, 104 Vt. 374, 376, 160
A 170, to draw down the level without limitation at whatever time
or in whatever manner it suited him. This, of course, he cannot
do, for his rights are circumscribed by those of the public. His
subsequent conduct gives point and meaning to his words.
The findings of fact show that the State is entitled to
injunctive relief, but they are not sufficiently definite to
indicate the extent to which it should be granted. Any
restraining order must necessarily set the limit beyond which the
water level cannot be lowered, and this limit must be one that is
not detrimental to the rights of the public. The findings state
that during the spawning season an intermittent lowering of "two
feet or more" below the elevation of the spillway crest is
injurious to the propagation of the fish, and that a permanent
lowering of "two feet or more" at other times has the same
effect, although a fluctuation of the water level at such other
times of not more than two feet does no harm. It is obvious that
the phrase "two feet or more" shows that a lowering of only two
feet is harmful, and that the point of safety must be somewhere
short of that, but where it may be is left to speculation. This
question must be answered before justice to both parties can be
It is proposed on behalf of the State that the customary and
usual use of the water during past years which has resulted in a
fluctuation of between two and three feet can be taken to be a
safe guide to what should be considered to be a reasonable use.
But this proposal cannot be accepted, since the findings show
that injury occurs at certain times and under certain conditions
level is lowered less than two feet, and, that at no time can the
reduction be more than two feet. As trustee for the people, the
State cannot waive the rights and interests of those who are the
beneficiaries of the trust. It cannot consent to an order of
court which would leave those rights and interests impaired.
Neither can the defendant claim a prescriptive right as against
the State, no matter to what extent and for how long the waters
have been used by him and his predecessors in title. Hazen v.
Perkins, 92 Vt. 414, 420, 105 A 249, 23 ALR 748; P.L. 1674. And as
to the normal and seasonal fluctuation in level of two to three
feet, it is enough to say that no order of court can control the
forces of nature and we are here concerned only with the control
of the height of the water by artificial means.
It is not necessary to consider the matter of the navigation of
the lake or to determine how far the water can be drawn down
without injury to it. This is only one of the public rights
involved; the other is in the common property in the fish, which
it is the duty of the State to safeguard. Harm to the latter
right is caused by a reduction in the water level before the
former is affected.
Upon the record before us we are satisfied that the State has
a meritorious cause of action, and there must be a remand for
further proceedings in order that there may be a final
disposition of the controversy.
Decree reversed, and cause remanded, with directions that
further proceedings be had, and the limits to which the level of
the water of Lake Fairlee may be drawn down below the elevation
of the crest of the spillway in the dam at the outlet of the lake
during the spawning season, March 15th to July 15th, and also at
other times of the year without detriment to the propagation of
fish, or the production of fish food, shall be ascertained, and
that when this has been done, an injunction issue restraining the
defendant, his agents and servants, from drawing down the water
of the lake below such limits, and from drawing down the water
for any purpose other than for the operation of his mill. But
nothing herein shall be construed as prohibiting either party to
this proceeding from applying to the Court of Chancery for
permission temporarily to draw down the water to a point below
the limits set by the injunction for purposes of necessary
repairs to the dam.
ON MOTION FOR REARGUMENT
The principal fault that the defendant finds with the foregoing
opinion relates to the holding that his statement concerning the
use of the water constituted a threat. It is strongly urged in
his behalf that we have disregarded our rule that findings of
fact must be construed to support the decree if reasonably
possible; that the Chancellor, having heard the evidence and
having considered the circumstances under which the statement was
made, must have concluded that it was not a threat and this must
be inferred by us in support of the decree; and that we have
drawn an inference which the trial court has declined to draw. To
sustain this position, defendant's counsel has referred to the
transcript, which is claimed to show that the statement was made
in the course of an amicable conversation between the defendant
and the members of the Lake Fairlee Association under such
circumstances that a minatory character could not possibly be
attributed to it.
It may be noted that this contention was not given as a ground
for reargument in the written motion. But since it was presented
on hearing without objection we treat it as having been included
It is true that doubtful findings are to be construed in
support of the decree if this can reasonably be done, Read v.
Hendee, 100 Vt. 351, 354, 137 A 329; Glass v. Newport Clothing
Co., 110 Vt. 368, 375, 8 A.2d 651; Hooper v. Levin, 112 Vt. 321,
325, 24 A.2d 337, and that we must assume, in favor of the decree,
that the trial court inferred such facts from the other facts
certified as it ought to have done, or might fairly have done.
Labor v. Carpenter, 102 Vt. 418, 422, 148 A 867; Lowe v. Green
Mountain Power Corporation, 111 Vt. 112, 117, 11 A.2d 219; Wheeler
v. Taylor, 114 Vt. 33, 39 A.2d 190, 192. But we cannot supplement
the findings by other facts not fairly inferable as resulting
from them. Manley Bros. v. Somers, 100 Vt. 292, 297, 137 A 336;
Wright v. Godin, 108 Vt. 23, 26, 182 A 189. And where the trial
court has drawn an unwarranted inference from the facts as found
such inference is to be disregarded. Smith v. Vermont Marble Co.,
99 Vt. 384, 396, 133 A 355.
Moreover, we cannot supply missing facts by an examination of
the transcript, for the transcript does not enlarge the findings
even though referred to therein, or in the bill of exceptions.
Powell v. Merrill, 92 Vt. 124, 130, 103 A 259; Grapes v. Rocque,
96 Vt. 286, 290, 119 A 420; Partridge v. Cole, 98 Vt. 373, 376, 127
A 653; Bardwell v. Ins. Co., 105 Vt. 106, 111, 163 A 633. This
rule applies equally to causes at law and in equity. See
Goodenough v. McGregor, 107 Vt. 524, 526, 181 A 287.
The findings show that the defendant's assertion was
unequivocal. It related to all seasons of the year, and was
limited only by his desire. No facts are found that would tend to
modify it, and it must be taken in the light of his subsequent
conduct. An inference that it was not a threat is unsupported by
the other findings, and is unwarranted.
Another ground of the motion is that the statement in the
opinion that "at no time can the reduction (of the water level)
be more than two feet" without resulting injury is contrary to
the finding that outside the spawning season a fluctuation of
more than two feet, to some point which the chancellor says he is
unable to determine, below the elevation of the spillway crest is
not harmful. The passage in the opinion quoted above should be
read as having reference to the spawning season.
The defendant urges the futility of a remand for the purpose of
fixing a point of harmless reduction in the water level which the
chancellor has professed himself as being unable to find. We do
not share in this belief. It is important that the rights of the
parties shall be determined and it may be confidently expected
that upon a further hearing the requisite findings can be made.
That we have the power in the exercise of our discretion to
remand a cause for further proceedings is well settled. O'Boyle
v. Parker-Young Co., 95 Vt. 58, 63, 112 A 385; Pennock v.
Goodrich, 102 Vt. 68, 72, 146 A 1; Goodenough v. McGregor, 107 Vt. 524,
528, 181 A 287; Vilas v. Smith, 108 Vt. 18, 23, 183 A 854.
Motion for reargument denied. Let full entry go down.