Saunders v. Bluefield Waterworks & Imp. Co.

• Decision Date: 20 October 1893
• Citation: 58 F. 133
• Parties: SAUNDERS v. BLUEFIELD WATERWORKS & IMP. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

58 F. 133

SAUNDERS v. BLUEFIELD WATERWORKS & IMP. CO. et al.

United States Circuit Court, W.D. Virginia.

October 20, 1893

Statement by PAUL, District Judge:

On the 1st day of June, 1892, the complainant presented his bill to the judge of the circuit court of Tazewell county, Va., and a preliminary injunction against the defendants was awarded, in accordance with the prayer of the bill; and on the 17th day of August, following, the suit was removed into this court by the defendants. The complainant states in his bill that he is a citizen of the state of Virginia, and of the western district of Virginia, and that the defendant company is a corporation chartered under the laws of the state of West Virginia, and a citizen of that state; that he is the owner of a boundary of land containing about 3,000 acres, on which he resides, in the county of Tazewell, Va.; that most of this land is fertile, adapted to the growing of grain and other products common to that section, but that its chief value is for grazing, a large area of it being in meadow; that most of the arable land lies on a rather elevated plateau, but very little of it is watered by the main Bluestone river, and that his main dependence for water for his land is smaller streams, and that, in fact, his main dependence is one small stream known as 'Beaver Pond Creek;' that the source of this stream is a bold-flowing spring of pure water situate near the southeastern portion of his land; that a short distance from its source this stream enters upon his land, and flows for a mile, or more, through the most fertile and productive portion of it; that last year he purchased from one John Bailey 93 acres of land near said spring, and through which said creek runs, almost solely for the water it affords; that said creek runs through much of his meadow land, for draining which he has constructed more than 20 blind ditches which empty into it; that there are a few other small mountain streams on the large expanse of his land, but they cannot be depended upon, and frequently are dry for several months in the year. Complainant then alleges that the defendant company has purchased the right to divert the water of the aforesaid spring, together with some land about it that it intends to convey the water to the city of Bluefield in the state of West Virginia, by forcing it through 10-inch cast pipes with powerful engines to be stationed at the spring; that the water to be so taken from the spring is not intended to be returned to the channel of the stream, and cannot be; that, if the defendant company succeed in reaching the water with the pipes and machinery it intends to use, it will take the whole stream, or so deplete it that a running stream will not be left to flow through his land; and that in consequence, there will be no estimating the damages that will be done to his land and to his business. He further alleges that the defendant company has its employes at work in Tazewell county, in the state of Virginia, and in the western district of Virginia, in putting down a pipe line preparatory to the removal of the water.

The defendants, W. T. Louder, Alexander Tackett, Henry Tackett, and T. J. Crouch, in their answers, aver that at the time these suits were instituted they were employes of their codefendant, the Bluefield Water Works & Improvement Company, for daily wages, and working under the direction of said company, and that they have not, and never have had, any interest in the subject-matter of these suits.

The defendant company, in its answer, states that it is a corporation, a joint-stock internal improvement company, chartered and organized under the laws of West Virginia, and now, and ever since it was organized, doing business exclusively within the state of West Virginia. It admits that it has purchased of one Carmack Bailey and wife one acre of land, on which there is a large spring known as 'Beaver Pond Spring,' and asserts that in the conveyance of said land to it by Carmack Bailey and wife it is expressly stipulated that it shall have the right to remove the water from the spring to the city of Bluefield, where it proposes to use it for the purpose of furnishing it to residents of that city for drinking and all other domestic and other purposes, and to supply the Norfolk & Western Railroad Company with it for its trains and shops. It states that, for the purpose of transporting and using the water for the purposes aforesaid, it has at great expense laid a pipe line from its reservoir in the city of Bluefield to the spring, a distance of about three miles; that it has built an engine house near the spring on its land, and has purchased an engine and other valuable machinery, and placed the same in the engine house. It claims that its tract of land, with the spring thereon, lies wholly in Mercer county, in the state of West Virginia; and cites certain acts of the legislature of Virginia, and the report and plat of a survey made in pursuance of said acts, in support of its contention. It claims that under the laws of the state of West Virginia it is an internal improvement company, and that under the laws of that state it has the right to acquire real estate and water for its purposes, either by purchase, if it could agree upon terms with the owner thereof, or, if it could not agree upon terms with the owner, then that it has the right to acquire such private property by instituting condemnation proceedings in accordance with the laws of said state providing for the taking of private property for public purposes; and that, in acquiring private property for its purposes in either of the modes prescribed by the laws of the said state, it was, in so doing, the representative of the state,--standing, as it were, in the shoes of the state,--and protected in its possession of, and title to, the property thus acquired by and through the exercise of the right of eminent domain. It claims that it has thus acquired the said one acre of land and the right to divert the water of the spring; and that the purpose for which it proposes to divert the water is a public use, indispensable to the public welfare; and that the acquisition of this water is necessary for the use to which it proposes to apply it. In its answer the defendant company also admits that it does intend to take, if it lawfully can, about four-fifths of the water from the spring, and convey it to the city of Bluefield, but denies that this diversion of the water will in any way injure the plaintiff or lessen the value of his lands.

At the October term, 1892, of this court, a motion was made to dismiss this suit, by the defendant company, which motion was overruled. A demurrer to the bill was then filed, the grounds of demurrer being as follows: First, that the court has no jurisdiction of the parties nor of the subject-matter of the suit; second, for want of proper parties to the bill; and, third, that the complainant's remedy is at law, and not in equity. The demurrer was overruled. At the same term of the court an order of survey was made, and a surveyor appointed to ascertain and report to the court the true boundary line between the county of Mercer, in the state of West Virginia, and the county of Tazewell, in the state of Virginia, and to show the location of the spring with reference to said boundary line. The surveyor executed the order, and filed his report on the 9th day of January, 1893; but exceptions have been filed to his report, and the same have been considered by the court.

Henry & Gramham, for complainant.

A. J. & S.D. May and A. W. Reynolds, for defendants.

PAUL, District Judge, (after stating the facts.)

The first question to be determined is as to the location of the spring,--whether it is in the state of Virginia or the state of West Virginia. This depends upon the ascertainment of the boundary line between the county of Tazewell, in the state of Virginia, and the county of Mercer, in the state of West Virginia, and the exact location of the spring with reference to this boundary line.

The county of Mercer was formed out of portions of the counties Giles and Tazewell, in the state of Virginia, in 1837, and became a county in the state of West Virginia upon the formation of that state, in 1863. An act of the legislature of Virginia, passed March 13, 1847, provided for surveying and ascertaining the true boundary line between Mercer county and Tazewell county. In pursuance to the provisions of this act a survey was made, and a plat drawn, which plat, the act further provided, should be 'conclusive evidence in all controversies which may arise...