(108 A.) bate court, when the law does not provide | 4. EQUITY 454, 457, 460-REQUISITES OF otherwise, is without merit. The two cases BILL OF REVIEW STATED. last cited, both decided since the change referred to, were dismissed because the order appealed from was not a "final" order. Besides, the holding in Timothy v. Farr received the attention, and apparent approval, of this court in White's Adm'r v. White, 91 Vt. 75, 99 Atl. 305. It is clear from the foregoing that the county court did not have jurisdiction of this case. or [2] But the appellant insists that the motion should have been denied because it was not seasonably filed, and because it did not point out more specifically the grounds relied upon. It is not necessary, however, that jurisdictional questions like the one under consideration should be formally raised, brought to the attention of the court at any particular time. When it discovers that it does not have jurisdiction, the court will dismiss the cause, at any stage, whether moved by a party or not. Miner's Ex'r v. Shanasy, 92 Vt. 111, 102 Atl. 480; Sanders v. Pierce, 68 Vt. 468, 35 Atl. 377; Wilcox v. Wilcox, supra. See, also, Page v. Page's Adm'r, 91 Vt. 188, 99 Atl. 780. The appeal not being properly before us, we have no occasion to, and have not, considered the other questions raised by the appellant. A petition in the nature of a bill of review must state all proceedings in the original cause except the evidence, and it is not sufficient to merely summarize the pleadings; the permission cree must be obtained, and the bill may be filed of the court which issued the original final deonly by a person who was a party or privy to the original suit. Appeal in Chancery, Bennington County; Leighton P. Slack, Chancellor. Bill by H. D. Fillmore, administrator of Margaret M. Olds' estate, and others, against Fanny T. Morgan, administratrix of William E. Morgan's estate, and others. From a decree dismissing the bill, plaintiffs appeal. Affirmed, and cause remanded. Argued bfore WATSON, C. J., and POWERS, TAYLOR, and MILES, JJ., and FISH, Superior Judge. W. B. Sheldon and Henry Chase, both of Bennington, for appellants. Batchelder & Bates and Holden & Healy, all of Bennington, for appellees. FISH, Superior Judge. This is a bill to have brought forward on the docket a suit in equity heard at the June term, 1908, Ben Judgment affirmed, to be certified to the nington county, and affirmed by this court at probate court. (94 Vt. 87) the May term, 1909, and in which the final mandate was entered at the December term, 1909, of said county. The sole parties in the original case were William R. Morgan and Merritt B. Morgan. See Morgan v. Morgan, FILLMORE et al. v. MORGAN'S ESTATE 82 Vt. 243, 73 Atl. 24, 137 Am. St. Rep. 1006. et al. (No. 190.)1 William R. Morgan died before the bringing of this suit. Merritt B. Morgan is still alive. (Supreme Court of Vermont. Rutland. Jan. 7, The plaintiffs ask to have this case reopened 1920.) 1. JUDGMENT 382-DECREE NOT BINDING ON PERSON NOT A PARTY. A decree obtained by the grantor against one of the grantee's heirs at law setting aside a deed is not binding on persons claiming under another heir of the grantee, and they cannot have the decree vacated. 2. JUDGMENT 375-SETTING ASIDE FOR EXTRINSIC FRAUD APPLIES TO STRANGERS. The rule that a judgment by a court of competent jurisdiction will be set aside only for fraud which is extrinsic or collateral applies to strangers as well as parties to the action. 3. JUDGMENT 336-SUIT TO SET ASIDE DECREE IN NATURE OF BILL OF REVIEW. A petition to set aside a decree canceling a deed is in the nature of a bill of review, and is controlled by the rules governing such actions. | 1 When this case was originally argued, it was assigned to Mr. Justice Haselton. Upon his retirement from the bench, the case, being ordered for reargument, was assigned to Superior Judge Fish. so that they may enter to answer the bill, have the files and records inspected, the case retried, the findings of fact and decree reversed, and the bill dismissed. The original action was brought to have declared null and void, for want of delivery, a deed of real estate given by said William R. Morgan to Harriet E. Morgan, a sister of said William, who is now deceased. The plaintiffs in this case are the administrator of Margaret M. Olds, another sister of said William, and her daughters. The defendant is William's widow and administratrix. At the time of the bringing of the original suit, the plaintiff therein had procured from all persons who would have been his heirs at law, except said Merritt, a reconveyance of the premises described in the deed to Harriet. Merritt refused to deed to William, and the original case resulted in a decree in favor of William in which Merritt was restrained from making any claim to the property in question. From the enrollment of said decree the said William claimed full title to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes case does not have the force which the plaintiffs attach to it. The decree is binding only on the parties and their privies, and the plaintiffs are neither. Therefore they are not harmed by the broad terms of the decree and cannot be heard to complain on this account. The decree enjoins no one but Merritt B. Morgan and it is not a cloud on the legal title of the plaintiffs. [2] The fraud in the original suit, about which the plaintiffs complain, furnishes no ground for maintaining the present one. The fraud, if it existed, was intrinsic. The only fraudulent acts for which a court of equity will set aside a judgment or decree, rendered by a court of competent jurisdiction, are those involving fraud extrinsic or collateral to the matter on which the judgment or decree was rendered; hence it will not set aside a judgment or decree because founded on a fraudulent instrument, or perjured testimony, or for any other matter that was actually presented or considered in the judgment assailed. This is the rule as between the parties. French v. Raymond, 82 Vt. 156, 72 Atl. 324, 137 Am. St. Rep. 994. No good reason appears why the same rule should not govern in a case where strangers attack a judgment as in this case. To entertain such a said property and appropriated the income and avails thereof to his own use, and since his death the defendant has done likewise. Margaret M. Olds had no notice of the bringing of the original bill nor of the proceedings and decree therein. In his answer Merritt denied that she had given a sufficient deed to William for the alleged reason that she was non compos at the time of its execution, but this question was not litigated. In the present case it is charged that William, by means of false and fraudulent tokens and representations and by undue influence and without consideration obtained the deed from Margaret; that the deed has but one witness, but was offered for record and caused to be recorded and the clerk's certificate attached; that William afterwards procured another person to sign the deed as a witness and thereby falsified the clerk's certificate indorsed thereon; that he also caused the signature of the last witness to be added to the record of the deed in the office of the clerk and falsified the clerk's certificate appended thereto; that the deed was never delivered after the second witness signed it; that said William fraudulently and deceitfully caused said instrument to be offered and received in evidence and induced the chancellor to make the findings of fact that none of the heirs of said William, except the said Merritt, claim-case would be in disregard of the maxim that ed any of the property in question and that it is for the public good that litigation should all except said Merritt had executed deeds end. to the said William releasing all claims to him; that by the same fraudulent means said William induced the chancellor to make the decree; that the only proof of the delivery of said instrumnt whereby it gained admission as evidence was the vitiated and false certificate of its record endorsed thereon; and that it constitutes a cloud upon the plaintiffs' title. The decree recited that the deed was void and a cloud on the title, which should be removed, and that when spread on the records in the clerk's office in the town of Bennington said cloud should be as effectually canceled as if the conveyance of the the property therein described "had been made by the original grantee, the said Harriet E. Morgan, to the orator and the same duly recorded." Margaret would have inherited one-sixth of the estate conveyed to Harriet had the title been in the latter at the time of her death, and this title the plaintiffs ask to have established in them by bringing forward the old case so that they may be heard therein. [1] There are several reasons for sustaining the demurrer. The decree in the original [3, 4] The petition in the present case is in the nature of a bill of review, and the principles which govern in such actions apply here. One rule is that all the proceedings in the original cause, except the evidence, must be stated. It is not sufficient to set out merely a synopsis of the former bill and answer, but the pleader must set out the bill, answer, replication, and decree. Story, Eq. Pl. (10th Ed.) § 420; Turner v. Berry, 3 Gilman (Ill.) 541; Kuttner v. Haines, 135 Ill. 382, 25 N. E. 752, 25 Am. St. Rep. 370; Thompson v. Maxwell, 95 U. S. 391, 24 L. Ed. 481. Another rule is that before a bill of review can be brought the permission of the court which issued the final decree must be obtained. Beach's Modern Equity Practice, vol. 2, § 849; Daniell's Chancery Practice, vol. 2 (6th Am. Ed.) 1578. And, finally, a bill of review or a bill in the nature of a bill of review can only be filed by a person who was a party or privy to the former suit. Daniell's Chancery Practice, supra, 1579; Thompson v. Maxwell, supra. The bill fails in the foregoing respects, and it cannot be sustained. Decree affirmed, and cause remanded. (94 Vt. 63) (108 A.) Bill by Henry W. Clement against the RutCLEMENT v. RUTLAND COUNTRY CLUB. land Country Club. Decree for plaintiff, and (No. 186.) (Supreme Court of Vermont. Rutland. Jan. 10, 1920.) 156(5)— 1. WATERS AND WATER COURSES The grant of a right to take water from a stream or spring conveys a right in the land itself, and such right is something more than an easement, being an interest partaking of the nature of a profit à prendre that may be granted as a right in gross or a right appurtenant, being in either case assignable or devisable. 2. WATERS AND WATER COURSES 156(5)— GRANT OF RIGHT TO TAKE WATER ONE IN GROSS NOT APPURTENANT TO ANY LAND. A grant of right to take a certain amount of water from a spring held a grant in gross, and not appurtenant to any land. defendant appeals. Decree altered and affirmed, and cause remanded. Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ. Marvelle C. Webber, of Rutland, for appel lant. Walter S. Fenton, of Rutland, for appellee. POWERS, J. This is a suit in chancery brought to establish the respective rights of the parties in a water system which supplies both. They trace their titles to a common Owner, the late Redfield Proctor. In 1867 Senator Proctor owned a farm lying on both sides of the highway now known as Grove street, in the city of Rutland. The dwelling house then occupied by him and his family and now owned and occupied by the plaintiff is on one side of this street, and the farm house, now owned and occupied by the defendant as a club house, is on the other. The defendant's golf links are also on that side of Grove street, and in connection therewith, as we understand the findings, the de4. WATERS AND WATER COURSES 156(9)—fendant now owns all of the Proctor farm RIGHT TO WATER FROM SPRING NOT LOST BY 3. WATERS AND WATER COURSES 155GRANT OF RIGHT TO TAKE WATER IN GROSS DID NOT PASS AS APPURTENANT UNDER DEED. Where a right to take water from a spring was granted in gross to a landowner, such right did not pass as appurtenant under a deed of such landowner of his lands. NONUSER. One to whom a right was conveyed to take water from a spring could not lose such right by mere nonuser; intent to abandon not being inferred from a nonuser alone. 5. WATERS AND WATER COURSES 137-TITLE UNDER GIFT OF RIGHT TO USE WATER ACQUIRED BY 15 YEARS' USER. Where a gift of a right to use water was made, use of the water thereunder for more than 15 years perfected title. 6. WATERS AND WATER COURSES 156(5) There is no spring until water issues from the earth, and hence a conveyance of a right to use water from springs did not convey right to use water from a spring subsequently dug by the grantor. 7. WATERS AND WATER COURSES 158(2)JOINT OWNER OF WATER SYSTEM MAY NOT USE SYSTEM TO CONVEY WATER TO HIMSELF FROM PRIVATE SPRING. Where defendant landowner entered into an agreement with several other landowners to construct a pipe line, each to have one-fourth interest therein, purpose being to furnish water to the several parties from a spring on defendant's land, defendant had no right to connect another spring with the pipe line and thereby convey water to himself, without his co-owners' consent. lying on that side the west side of the Appeal in Chancery, Rutland County; above. Thereupon the parties built a dam Frank L. Fish, Chancellor. across the brook at a point below the outlet For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes L of spring No. 3, hereinafter referred to, and laid a two-inch pipe from the intake pond created thereby to a point in the rear of the Lawton house. From this point, the aqueduct was continued to the four houses by inch pipes. Through these pipes the parties were supplied with water at their respective buildings. On May 7, 1872, the Proctors conveyed some of their land on the west side of the street and included in the deed a grant of one undivided half of the Proctor interest in the water system. This interest is covered by a deed now held by the defendant. On March 26, 1909, the plaintiff acquired title to the Proctor dwelling house by a deed from Senator Proctor's widow. This deed purported to include what water rights and interest in the aqueduct was reserved in the Proctor deed of August 30, 1867. The plaintiff also holds deeds from or tracing to the original owners covering the interests conveyed by the Proctors to Cain and Verder, as above stated. But the defendant denies that the plaintiff has even paper title to the Lawton interest. This question and the question of the validity of the paper titles de pend upon the legal character of the interest conveyed by the original Proctor deed and the legal effect of the subsequent change in the source of water supply. It is to be observed that this water system really consists of two elements: An aqueduct; and certain water rights. And it might easily happen that the rights of these parties in one might differ from their rights in the other. [1-3] The defendant claims that the rights conveyed by the Proctors by the original deed were mere easements, and not an interest in the real estate itself. That this would be the result in some jurisdictions may be admitted; but it is not so in Vermont. Our rule is that the grant of a right to take water from a stream or spring conveys a right in the land itself. This right is something more than an easement; it is an interest partaking of the nature of a profit à prendre. It may be granted as a right in gross, or as a right appurtenant. In either case it is assignable, descendible, and devisable. This is all made plain and put beyond question by Lawrie v. Silsby, 76 Vt. 240, 56 Atl. 1106, 104 Am. St. Rep. 927. The rights granted by the Proctor deed were not inseparably annexed to particular lands, were not rights appurtenant, as claimed by the defendant, but were rights in gross, and could be sold and conveyed apart from the land to any one who chose to buy. That they were in gross appears from the Proctor deed. Not only were they not in terms made appurtenant to particular lands, but it unmistakably appears that it was intended and expected that the parties to this deed were to or might supply water to other persons. The grantors covenanted that they would not sell to others the right to take water from the brook, or take it themselves, "to supply any persons that [whom] the parties acting under this deed will supply" except by agreement of all parties interested. This shows that from the beginning it was contemplated that water might be sold by the owners of the system. The action of the parties has been in accord with this. The Proctors divided their right and sold half of it to Baxter. The only interest in the original system which the defendant owns or pretends to own depends upon the validity of this conveyance. The Cain right was divided and treated in the same way. All the conveyances, except as hereinafter stated, made specific grants of the water system. The plaintiff's claim of title to the Lawton interest is based upon a quitclaim deed from H. H. Farmer and others. This deed makes a specific grant of one-fourth of the water system. But the grantors had no title to this interest. They derived title from Benjamin F. Farmer, and he from Charles H. Landon. How any title passed from the Lawtons to Landon is not shown. But the deeds to and from Benjamin F. Farmer made no mention of the water system, and the only way they could carry any title to it would be as an appurtenance of the lands conveyed. But, the rights in the system being in gross, and not appurtenant, they could not be so conveyed. So it must be held that the plaintiff shows no title to the Lawton fourth. In 1876, or about that time, the waters of the intake pond became polluted, and the intake pipe was changed from the brook to one or more springs near by. This was done by agreement of all concerned, and, though the fact is not reported, it is a fair inference that all shared in the expense. The finding as to the new source of supply is not as definite as could be desired. The chancellor says that the pipe was changed from the brook to a certain "spring or springs." Sometimes he speaks of the "south spring," and sometimes of the "south springs." But we think it must be taken that the only spring covered by the agreement of change, and the only one taken into the system at that time, was the spring called spring No. 1, and so shown on the plaintiff's plan. We base our conclusion on these facts: In finding 43 it is expressly stated that spring No. 1 was the only source of supply from the south system after the use of the brook was discontinued; only three springs in that system are shown on the plan, or spoken of in the report; and the findings show that the defendant dug No. 2 in 1902 or 1903, and that the plaintiff piped in No. 3 after he bought his house in 1909. These springs, Nos. 2 and 3, are on the defendant's land. [4, 5] The defendant says that, when the intake was changed, the owners abandoned their rights or a part of them. This claim (108 A.) can, of course, only apply to the rights in the brook; it cannot, in any view, be claimed that they abandoned any of their rights in the aqueduct; for they did not discontinue its use even. But we do not think their rights in the brook were abandoned. These were granted rights, and the books say that real property, corporeal or incorporeal, held by grant, cannot be lost by mere nonuser. There must exist an intent to abandon, and this intent will not be inferred from nonuser alone. Sowles v. Minot, 82 Vt. 344, 73 Atl. 1025, 137 Am. St. Rep. 1010. The arrangeThe arrangement, if it affected the rights in the brook, amounted to an exchange, or was a parol gift of a two-inch pipeful of its waters. It resulted in something more than a mere license to use the spring. It substituted the spring for the brook as a source of supply. It makes no difference with the result whether we regard the transaction as an exchange or a gift; in either case the use of the water thereunder for more than 15 years has perfected title to the interest involved. Blaine v. Ray, 61 Vt. 566, 18 Atl. 189. To be sure, the chancellor has not, in terms, reported the facts characterizing this use, but, in view of what is shown, they inferentially appear. The spring has been used for the requisite time, for it was continued from 1876, or about that time, to 1892, or about that time; and, though these dates are not exactly given, it is obvious that the use covered more than 15 years. The use was, in a legal sense, continuous, for, though the pipe was sometimes washed out where it crossed the creek, it was repaired, and nothing in the nature of a legal interruption of the use resulted. The use was open and notorious, for everybody concerned knew all about it. The use was adverse; at least in support of the decree it will be so taken. Perrin v. Garfield, 37 Vt. 304; Barber v. Bailey, 86 Vt. 219, 84 Atl. 608, 44 L. R. A. (N. S.) 98. The rights acquired under this arrrangement were subject to the various provisions of the original grant, and the rights of the parties in the waters of the brook are the measure of their rights in the waters of the spring. So far, then, as the aqueduct and spring No. 1 are concerned, the only error we find in the decree lies in the fact that it gave the plaintiff the Lawton one-fourth interest. His title is five-eighths instead of seven-eighths. It remains to consider the rights of the parties in the other springs of the south system -Nos. 2 and 3. [6, 7] The grantees in the Proctor deed acquired no rights in these springs by the agreement under which the waters of spring No. 1 were taken. Spring No. 2 was a new spring, and did not exist when the Proctor deed was given. It did not come into existence until it was dug by the plaintiff as (hereinafter stated. There is no spring until water issues from the earth. Magoon v. Harris, 46 Vt. 264. At the time the defendant acquired its property in 1902, the aqueduct was badly out of repair, and had been so for some considerable time. The defendant set about putting it into condition, and in connection with this undertaking it dug and piped into the aqueduct Spring No. 2. This was done to increase its own supply of water, and there was no agreement or understanding with the other owners of the system regarding it. None of them shared in the expense, and some refused to do so. If the plaintiff had any rights in this spring, the burden was on him to prove it. This he has failed to do. There are not facts enough to show that the defendant intended to make a gift of this spring or any part of it to the plaintiff or any one else, nor enough to show what might, perhaps, be called a dedication of it to the purposes for which the system was established. The circumstances indicate rather strongly that the defendants sought only its own interests in what it did. Nor does it sufficiently appear, even after giving force to the intendments, that the plaintiff has acquired any prescriptive rights in this spring. The findings are strongly to the contrary. So it must be held that the defendant, on whose land this spring is situated, is the sole owner of it and the pipe connecting it with the aqueduct. But the defendant has no right to convey its waters through the aqueduct without its co-owners' consent. The spring is its private property, but the aqueduct is jointly owned, and no individual owner can put it to a different use than that for which it was established, unless all agree. Even more clear is the defendant's title to spring No. 3. This the plaintiff piped in without leave, license, or authority. He owns the pipe he used, but he owns nothing in the spring. Nor does the fact that the water from this spring found its way into the intake pond of the brook affect this result. It may be that the grantees in the Proctor deed acquired a right to have this water flow in its accustomed course; but any right they may have had was incidental to their rights in the brook. These are not here involved. This carries us as far as we are now required to go. Other questions are incidentally presented, and it is apparent that still others will have to be litigated or agreed upon before the rights of the parties are fully worked out, but the decree below only covered the question of title, so we now consider no other. The decree is altered to read as follows: plaintiff is the owner of an undivided five-eighths It is ordered, adjudged, and decreed that the interest in and to the aqueduct described in said bill of complaint and spring No. 1, so called, and that he owns such piping as he used in |