ration which charged the defendant with fraud in a sale of land by falsely representing that it has growing upon it 3,000 spruce iogs. It was held that the demurrer would not lie, for the question whether or not the representation was in its nature a matter of opinion only would depend upon the circumstances shown by the proofs. The statement here involved is much more general and indefinite than the one in Whitton v. Goddard, and there are no circumstances shown by this record to take it out of the general rule above referred to. So we hold that the statement that this farm carried wood and timber enough to pay for itdepending as it must have upon estimate and judgment alone, and that predicated upon data uncertain, if not conjectural-was so plainly a mere expression of opinion and recommendation that the court below committed no error in ruling that it would not support this action. As evidence to support the allegation referred to, therefore, the offer was properly excluded. But, on the other ground specified, the offered evidence was admissible. For reasons already stated, the real value of the farm was a material question; and to determine that it was important to know whether there was much or little wood or timber on the place, as this would directly affect its value. At the close of the plaintiffs' case, on the defendant's motion, and subject to the plaintiffs' exceptions, the court withdrew from the consid value of the farm, and to substantiate the | Vt. 730, there was a demurrer to the declafourth ground of recovery above specified. The offer was objected to on the ground that the representation relied upon was mere matter of opinion, and so not actionable, and that the evidence offered was immaterial. It was excluded subject to the plaintiffs' exception. We agree with counsel for the defendant that a representation, though false and fraudulent, will not support an action unless it be of a past or present fact, and not a mere expression of opinion. Shanks v. Whitney, 66 Vt. 405, 29 Atl. 367. It is true, too, as argued by the plaintiffs, that, as a general rule, the question whether a given statement is one of fact or opinion is for the jury. 20 Cyc. 124. But it is not always so. Cases frequently arise which are so plainly of the one class or the other that they can be disposed of by the court without the aid of the jury. Such cases have been classified with some accuracy; but, after all, such attempted classification is not of much assistance in testing a given statement, for, as said in Reeves v. Corning (C. C.) 51 Fed. 774, there is no certain and unbending rule which can be applied to all cases. The character and relation of the parties, their respective intelligence, the subject-matter of the bargain, and all the circumstances, must be considered. So each case must necessarily depend in a large measure upon its own facts. A statement which is in form only an expression of opinion may in certain circumstances amount to an assertion of fact; and, conversely, a statement which is in form an as-eration of the jury six of the allegations of sertion of fact may in certain circumstances amount to an expression of opinion merely. Statements of quantity, quality, and value are usually held to be expressions of opinion, and therefore not actionable. Statements as to the character, adaptability, or productiveness of the soil of a farm are We have already sufficiently discussed the usually held to be mere expressions of opin- allegation regarding the wood and timber. ion. Thus in Gordon v. Parmelee, 2 Allen As for the others, we need only say that the (Mass.) 212, which was an action on a note transcript which is referred to in the bill utgiven for the price of a certain piece of land, terly fails to show upon what ground the against which the defendant sought to recoup action of the court in withdrawing these aldamages arising from the false representa- legations was predicated. The bill itself tions of the plaintiff in the sale of the land, states that "the court ruled that these allethe defendant offered to show that the trea- gations should be taken out of consideration ty for the purchase was made when the in the case on the ground that they either ground was covered with snow, and that the were not in themselves actionable or that plaintiff falsely represented that the farm they had not been sufficiently supported by was of a soil and a capacity for productive- evidence to make them so in this case." But ness and the keeping of stock greatly su- which allegations were held to be unsupportperior to what it was in fact-all of which ed by evidence, and which were held to be was excluded. It was held that these repre- insufficient to support the action, we are not sentations were not actionable. In Long-informed. We are, consequently, entirely unshore v. Jack & Co., 30 Iowa, 298, it was held that a representation, though false, that a certain piece of land carried 600 cords of wood would not support an action. In Mooney v. Miller, 102 Mass. 217, it was held that a false representation made by a seller of a lot of land as to the quantity of wood and hay that could be cut from it were not the declaration hereinbefore set forth. Of these the plaintiffs now seek to save only three relating to the following subjects: The productiveness of the sugar place; the quantity of wood and timber; the average potato yield; the quality of the six cows. able to review the action of the court below, for we do not know what its rulings were. In such circumstances this court will not speculate or surmise. It will solve the doubt against the excepting party. Stoddard v. Insurance Co., 75 Vt. 253, 54 Atl. 284. The plaintiffs complain of the charge wherein the jury was instructed that a rep SONABLE USE OF WATER-DAMS. "existing fact," and they insist that this in- [ 4. WATERS AND WATER COURSES (§ 53*)—REAstruction was erroneous without an explanation so extending actionable misrepresentations as to include past events. This point is not before us. No exception was taken to the charge in this respect, though the record does show that counsel for the plaintiffs called the court's attention to the point and explained their claim about it. The court charged the jury that there could be no recovery in Belka's statement regarding the number of cows the farm would keep, for the reason that, as he stated it, it applied only to the future. The evidence referred to came in in this way: Belka was asked, "Anything said at that time about the number of cows the place would keep?" And he replied, "He told me it would keep 25 COWS." In the circumstances, this language, we think, was susceptible of a construction making it applicable to the present as well as the future. Its meaning therefore was for the jury, and it could not be said as matter of law that it referred to the future only. The other exceptions to the charge are not sustained. Reversed and remanded. LAWRIE et al. v. SILLSBY et al. stream is put by an upper proprietor maintainThat the use to which the water of a ing a dam across it is artificial, and that by impounding the water the increased loss by evaporation is such that the same volume of water that would otherwise find its way there, is perdoes not enter the land of the lower proprietor tinent in determining the reasonableness of the use, and, taken in connection with the size of the stream, it may in some cases be a controlling fact. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 45; Dec. Dig. 8 53.*] 5. WATERS AND WATER COURSES (§ 53*)—REASONABLE USE OF WATER-DAMS. The fact that since the erection of a dam across a stream by an upper proprietor the number and extent of the occasions the water was so low that it did not form a channel through the land of the lower proprietor increasbleness of the use made by the upper proprietor. ed was important in determining the reasona [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 45; Dec. Dig. § 53.*] 6. WATERS AND WATER COURSES (§ 42*)— RIGHTS OF UPPER AND LOWER PROPRIETORS. The rights of upper and lower riparian proprietors are reciprocal, and each owes the other the duty of so exercising his rights and so limiting his own appropriation of the water as to keep within the bounds of reasonable use, and, when he reaches that limit, the lower proprietor has exhausted his rights in the stream, and beyond that limit he may not go without incurring a liability to a lower proprietor or without (Supreme Court of Vermont. Orange. Oct. 25, remedy against an upper proprietor. 1909.) 1. EQUITY ( 407*)- FINDINGS OF MASTERCONCLUSIVENESS. The findings of a master will not be disturbed where the facts referred to in his report are pertinent, and are, when considered together, sufficient to support the findings, but, where the facts so referred to or any of them are not pertinent, the findings cannot stand. [Ed. Notc.-For other cases, see Equity, Cent. Dig. §§ 893-900; Dec. Dig. § 407.*] 2. WATERS AND WATER COURSES (§ 42*)-REA SONABLE USE OF WATER. In determining whether the use of a stream by an upper proprietor is reasonable, the size and character of the stream and the use to which it is subservient are pertinent. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 34; Dec. Dig. § 42.*] 3. WATERS AND WATER COURSES (§ 63*)-REASONABLE USE OF WATER-FINDINGS "NATURAL WANT." A finding of the master directed to find and report whether an upper proprietor's use of a stream by maintaining a dam across it was reasonable, that the stream was so small that the amount of water flowing in it during certain seasons of the year was barely sufficient under the best conditions to supply the "natural" wants of the users thereof, was a finding that the upper proprietor's use was unreasonable because the stream was so small that at times it furnished barely enough water for the domestic uses of lower proprietors; the term "natural wants" designating domestic uses. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 53; Dec. Dig. 63.* For other definitions, see Words and Phrases, vol. 5, p. 4671.] [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 34; Dec. Dig. § 42.*] 7. WATERS AND WATER COURSES (§ 154*)RIGHTS OF RIPARIAN PROPRIETORS-CONVEYANCES. The right of a riparian proprietor to the use of the water of the stream may be conveyed, but more than the reasonable use he cannot convey, nor can the grantee acquire more. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 167, 170; Dec. Dig. § 154.*] 8. WATERS AND WATER COURSES (§ 47*) RIGHTS OF RIPARIAN PROPRIETORS—NONRIPARIAN USES. The fact that one who takes the water of a stream takes it for nonriparian lands does not make his use per se unreasonable, but that fact, together with the size and character of the and all the circumstances, may make his use stream, the quantity of the water appropriated, unreasonable. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 47.*] 9. WATERS AND WATER COURSES (8 47*)— RIGHTS OF RIPARIAN PROPRIETORS - NONRIPARIAN USES. The mere fact that an upper riparian proprietor reduces the natural flow of the stream is not decisive on the question of his liability to one taking the water for use on nonriparian lands, and, to entitle the latter to relief, he must show that he suffers an injury to the use of the water which the law recognizes as belonging to him. [Ed. Note. For other cases, see Waters and Water Courses, Dec. Dig. § 47.*] Appeal in Chancery, Orange County; George M. Powers, Chancellor. Suit by James P. Lawrie and others | them are not, the finding cannot stand, for against W. H. Sillsby and others. There was the master may have most relied upon the a decree for the orators after a hearing on impertinent fact or facts in reaching his conthe pleadings, the master's report, and excep- clusion. But it is not necessary that each tions thereto, and defendants appeal. Re- of these facts, standing alone, should be suffiversed and remanded. cient to support the finding of unreasonable use. It is enough if each is pertinent, and all sufficient. "(a) The stream is so small that the amount of water flowing in it during Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, HASELTON, and POWERS, JJ. Smith & Smith, for appellants. Dunnett & certain seasons of the year is barely suffi Slack and R. M. Harvey, for appellees. POWERS, J. It having been held that the orators could maintain this bill if the defendants had infringed their rights by an unreasonable use of the water of the stream, and that the question of reasonable use was one of fact (Lawrie et al. v. Silsby et al., 76 Vt. 240, 56 Atl. 1106, 104 Am. St. Rep. 927), the cause was remanded with a mandate to the court of chancery to recommit the report to the master "to find and report whether the defendants' use of the water is a reasonable use; and, if not, in what respects it is unreasonable, and whether such use can be remedied in any way and what way; also, to find and report whether the water in the pond has improved in quality to any and what extent since the last hearing before the master, and what the prospect is of its ultimate purification and when, and whether the orators have sustained any and how much damage since said hearing." Pursuant to this mandate, a further hearing has been had before the master, and a supplemental report filed, to which the defendants filed exceptions. Thereupon a pro forma decree was made overruling the exceptions to the report, granting a perpetual injunction against maintaining any dam across the stream in question which should prevent the natural flow of the water through the orators' aqueduct or contaminate it, and awarding the orators damages. From this decree the defendants appeal. In the supplemental report it is found that the defendants' use of the water is unreasonable. This finding, the master states, is predicated upon certain facts set forth in the report and by the master designated "a," "b," "c," and "d." The further paragraphs of the report are designated "e," "f," and "g," but it is plain that they were not intended to be statements of facts on which the main finding was based, but statements of further facts called for by the mandate or requested by counsel, and they are mainly important in the consideration of the main finding by showing that the master had in mind the facts therein recited. Under the exceptions to the report. it is urged by the defendants that the finding on the question of reasonable use cannot stand because some or all of the specified facts on which it is based do not support it. This depends upon whether the facts referred to are pertinent to the inquiry. If they are, we can cient, under the best conditions, to supply the "(b) The use to which the water is put by the defendants is artificial, and by impounding it as before reported the increased loss by evaporation is such that the same volume of water does not enter the Lawrie lot that would otherwise find its way there." Here, again, the master is using the language of the books, and the defendants' use of the water is properly termed "artificial," as distinguished from "natural." This is so, not because the master says so, but because it is so classed by the law of waters. Angell, Wat. § 128. The amount of evaporation caused by the spreading out of the water is certainly a pertinent fact, and, taken in connection with the size of the stream, may in And, in some cases be a controlling fact. determining the importance of this matter, the character of the use is properly considered, though it may not be decisive of the question. "(c) During a considerable portion of each year water in the pond is so low that it does not flow either over the top of the dam or through the spillway. At such times the only water of the stream reaching the Lawrie lot is that which has escaped through leaks in the dam as formerly described. This has has resulted in an irregular flow of the stream on the Lawrie lot." By referring to the original report, we find that the stream in question, though small, rises about a mile above the defendants' premises, and flows in a well-defined channel through the Hale lot, in which such premises are located, through the Lawrie lot to a point therein called "Kelley Head," from which the orators take their supply of water through an aqueduct. The conditions described by the master so reduce the amount of water in the stream below the defendants' dam that at times there is not enough water to form a stream from the dam to Kelley Head. This condition sometimes occurred before the dam was built, and in times of extreme drouth the orators' supply of water failed; but since the erection of the dam these occasions have increased in number and extent, and the supply of water to the Lawrie lot has been materially decreased by the maintenance of the dam. The facts set forth in paragraph “c," considered by themselves and in connection with the other findings, become not only pertinent, but important, in determining the question of reasonable use. In paragraph "f" the master reports that the quality of the water has materially improved since the original report was filed. This improvement is partly due to the efforts of the defendants and partly to natural causes. Notwithstanding the improvement, however, the water is still undesirable at times for domestic use. The master is unable to say how long these conditions will continue, but the water will be more or less unsuitable for culinary purposes as long as the process of decomposition of the vegetable matter in the pond continues. In paragraph "g" the master reports that he is unable to suggest a remedy for the increased evaporation caused by the ponding of the water other than the removal of the dam. The defendants' objections to the finding of unreasonable use caunot avail them. The whole case shows that it was supported by facts sufficient in law to sustain it. The brook is too small to allow, the defendants to make such an use of it if it results in damage to the lower owners while in the exercise of their rights in it. But are the orators within their legal rights? Does the injury fall upon them while in the exercise of their legitimate use of the water? The rights of upper and lower riparian proprietors are reciprocal. Each owes the other a dutythe duty of so exercising his rights and so limiting his own appropriation of the water as to keep within the bounds of reasonable When he reaches that limit, the lower owner has exhausted his rights in the stream. Beyond that limit he may not go without, on The owner, or, on the other, being without remedy against an upper owner. In this case Lawrie originally owned such a right. That right he could convey to the other orators. More than that he could not convey to them, nor could they acquire more from him. It was said in this case (76 Vt. 253, 56 Atl. 1106, 104 Am. St. Rep. 927) that the taking of the water by the orators was lawful and beneficial, and that it did not alter the rights of the defendants or do them actual and perceptible damage, and that for this reason such use by them must be deemed reasonable as to the defendants. The precise question argued and considered was whether the orators, other than Lawrie, being nonriparian owners, had any rights against the defendants. This was the point decided, and the language of the court means no more than this: fact that such orators were taking the water to their nonriparian lands did not per se make their use unreasonable. But that fact, together with the size and character of the stream, the quantity of water appropriated, and all the circumstances and conditions, might make their use unreasonable. The stream might furnish water enough to supply this unreasonable use of the defendants and the reasonable demands of the orators, in which case the latter could not be heard to complain. The mere fact that the defendants reduce the natural flow of the stream would not be decisive. To entitle the orators to relief, they must show that they suffer an injury to the use of the water which the law recognizes as belonging to them. Crawford Co. v. Hathaway, 67 Neb. 325, 93 N. W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 669. And here is where an important distinction is to be observed-the distinction between the use of a stream which infringes no right of another riparian owner, although it modifies the stream in some way, and a use which infringes his right, although it causes him only nominal damage. The necessities of the orators cannot measure the defendants' rights, any more than the defendants' necessities can measure the orators' rights. "The necessities of one man's business cannot be the standard of another's rights in a thing which belongs to both." Wheatley v. Chrisman, 24 Pa. 298, 64 Am. Dec. 657. The question under discussion is one of fact, and must be determined before the case will be in condition for final disposition. Otherwise we might award the orators damages in whole or in part for being deprived of water which they have no legal right to require the defendants to let down to themto say nothing of the effect it might have in the determination of the question of granting an injunction. Decree reversed and cause remanded, with BERRY v. DOOLITTLE. A HASELTON, J. This case is trover. trial by jury was had, and verdict and judg (Supreme Court of Vermont. Windham. Oct. ment went for the plaintiff. 12, 1909.) 1. APPEAL AND Error (§ 1060*)-REMARKS OF ATTORNEY-HARMLESS ERROR. An improper remark of plaintiff's counsel as to defendant's exhibits made during recess while the jury were retiring from the courtroom will not be held error in the absence of a showing that the jury heard it. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 1060.*] 2. WITNESSES (§ 240*)-EXAMINATION-LEADING QUESTIONS. Allowing one to answer leading questions as a matter of discretion will not be held error. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 795; Dec. Dig. § 240.*] 3. EVIDENCE (§ 99*)-RELEVANCY. To meet defendant's claim that plaintiff's suit, unless groundless, would have been brought at an earlier time, plaintiff may introduce evidence showing defendant's absence from the state and his lack of property within the state, and may cross-examine him and his witnesses with a view of eliciting facts about these matters. [Ed. Note.-For other cases, see Evidence, Dec. Dig. § 99.*] 4. WITNESSES (§ 268*)-CROSS-EXAMINATION. Where a witness in support of the defense of payment testified that the payment was made with money furnished by her, it was not error to allow questions on cross-examination to show that the money was furnished and used for another purpose. [Ed. Note.-For other cases, see Witnesses, Dec. Dig. § 268.*] 5. WITNESSES (§ 358*)-IMPEACHMENT-CROSS EXAMINATION OF IMPEACHING WITNESS. On cross-examination of a witness who has given testimony impeaching one's reputation for truth and veracity, inquiries to show that the local newspapers had not attacked it are im proper. [Ed. Note. For other cases, see Witnesses, Dec. Dig. § 358.*] 6. APPEAL AND ERROR (§ 882*)-REVIEW-ERROR COMMITTED BY EXCEPTING PARTY. A record showing improper questions by the excepting party resulting in an improper answer, all of which the court allowed technically to stand, does not show error. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 882.*] 7. TRIAL (132*)—ARGUMENT OF COUNSEL ACTION OF COURT. Remarks by counsel that his client would not have sued "if it was not just as she claimed," or "if she had had her pay," will not be held error where it appears that they were withdrawn, and the jury adequately cautioned. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 315; Dec. Dig. § 132.*] Exceptions from Windham County Court; W. W. Miles, Judge. Action by Mary Stoddard Berry against Guy A. Doolittle. Verdict and judgment for plaintiff, and defendant excepts. Affirmed. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. - Arthur P. Carpenter, for defendant. Upon the taking of a noon recess, while the jury were retiring from the courtroom, and were in the rear part of the room, counsel for the plaintiff asked the privilege of examining certain exhibits of the defendant, and said: "We expect they are forgeries." The defendant's counsel excepted to the remark on the ground that it was made while the jury were in the room. Counsel for the plaintiff then stated that they did not know that the jury were in the room. Upon the coming in of the jury in the afternoon, counsel, if they had wished, could have ascertained whether or not the jury did hear the conversation, but it does not appear that the In view of the cirjury were inquired of. cumstances in which the remark was made, it is not to be presumed that the jury did hear it. After examining the exhibits, the plaintiff abandoned the claim that they were forgeries, and introduced no evidence tending to support such claim. If the remark was overheard by the jury, the plaintiff was by the subsequent course of the trial put Somewhat in the position of having asserted a false claim, and, human nature being what it is, if either party fell into disfavor because of the remark it must have been the plaintiff. While the plaintiff was testifying in her own behalf, a leading question was objected to on the ground that it was leading. The court in its discretion permitted her to answer, and the defendant took an exception. This exception is without merit. Hathaway v. Goslant, 77 Vt. 199, 59 Atl. 835; State v. Bedard, 65 Vt. 278, 26 Atl. 719; Collamer, J., in Hopkinson v. State, 12 Vt. 582; Poland, J., in Goss v. Turner, 21 Vt. 437. It appeared that some time prior to the commencement of this suit the plaintiff had brought another suit for a different cause of action against the defendant and his sister; and the defendant on the cross-examination of the plaintiff sought to show, and made the claim, that this suit could have been brought at the same time as the other, and that it would have been so brought if the claimed liability had in fact existed. Thereupon the plaintiff on her redirect examination was allowed to testify that at the time the other not to her knowledge living in the state, and suit was brought the defendant herein was that she took steps to find out how the fact was. The court thereafter permitted the plaintiff to show what she could about the absence of the defendant from the state and about his lack of property within the state at times material to the above stated claim of the defendant. Numerous questions were asked of the defendant in cross-examination with a view to eliciting facts about these matters, and his sister was cross-examined For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |