On Reargument
Holden, C.J.,dissenting. As a result of reargument of this appeal, I am persuaded that the jury’s verdict in this case cannot be reconciled with the evidence, nor with the court’s instructions at the time the cause was submitted. I would reverse the judgment and remand for further hearing to achieve a proper verdict consistent with the requirements of 12 V.S.A. § 1904a and 19 V.S.A. § 221(2).
The right to take water from a source located on the lands of another is a property right in the land to which it appertains. Griswold v. Town School District of Weathersfield, 117 Vt. 224, 225, 88 A.2d 829 (1952) ; Davidson v. Vaughn, 114 Vt. 243, 248, 44 A.2d 144 (1945). When such a property right is taken for public use in the course of highway construction, the owner is entitled to its equivalent in money. Vt. Const. Ch. I, art. 2; Makela v. State of Vermont, 124 Vt. 407, 409, 205 A.2d 813 (1964) ; Sanborn v. Village of Enosburg Falls, 87 Vt. 479, 483, 89 A. 746 (1914).
The Legislature has seen fit to require the jury in a highway condemnation proceeding to. find separately, by special verdicts (1) the damages resulting to the owner from the taking of his property or property rights in the *18land condemned and (2) the direct and proximate lessening in the value of the land remaining, caused by the taking or severance of the property appropriated by the State. 12 V.S.A. § 1904a and 19 V.S.A. § 221 (2). The trial court instructed the jury that in addition to the taking of land, — “there has been a taking of a water supply.” On this point, all are agreed.
The plaintiffs’ appraiser valued the water rights at $5,000 and the value of the land taken at $9,760, with consequent damage to the land remaining at $6,000. The State’s expert combined the value of the land and water rights at $11,300, without any severance damage to the remainder. The jury’s award of $8,200 for the land and water rights falls short of the minimum valuation presented in the evidence.
The opinion of the majority salvages the result reached by the jury on the assumption that compensation for the taking of the water supply is included in the verdict of $4,800 for damage to the land remaining. There is no assurance of this from the record. And if such was the course of the jury’s deliberation, it is contrary to the court’s instructions and at variance with express requirement of the statute. In my judgment,->a verdict in this posture should not stand.