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

        unconstitutional.

 

  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

        nuisance.

 

  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

        law.

 

  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.

Page 97

 

  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

        prescription.

 

  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.

 

  MOULTON, C.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.

Page 98

 

  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

Page 99

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

Page 100

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

mephitic odor

Page 101

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.

Page 102

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

results.

 

  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

v. Perkins,

Page 103

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.

Page 104

 

  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

of water.

 

  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

Page 105

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

done.

 

  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

when the

Page 106

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.

Page 107

 

                    ON MOTION FOR REARGUMENT

 

  MOULTON, C.J.

 

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

by amendment.

 

  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.

Page 108

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.