Board of Sup'rs of Loudoun County v. Town of Fairfax
| Decision Date | 20 January 1958 |
| Docket Number | No. 4749,4749 |
| Citation | 199 Va. 612,101 S.E.2d 519 |
| Parties | BOARD OF SUPERVISORS OF LOUDOUN COUNTY, VIRGINIA v. TOWN OF FAIRFAX, VIRGINIA. Record |
| Court | Virginia Supreme Court |
Stirling M. Harrison, Commonwealth's Attorney, for the plaintiff in error.
E. C. Van Dyck (Robert J. McCandlish, Jr.; E. B. White, on brief), for the defendant in error.
Howard W. Vesey, Town Attorney, on brief, for the Town of Leesburg.
On May 11, 1956, Town of Fairfax filed an application, pursuant to § 15-740 et seq., Code 1950, to erect a dam across Goose Creek in Loudoun County for the purpose of establishing a water supply. Board of Supervisors of Loudoun County, Town of Leesburg, Town of Middleburg, Loudoun Water Supply Corporation and a number of individuals, after publication of notice as required by law, were allowed to intervene as parties defendant. After overruling demurrers filed by several defendants, the trial judge heard evidence ore tenus, considered the findings of the commissioners and granted leave to construct the proposed dam subject to certain conditions and restrictions. Board of Supervisors of Loudoun County appealed.
Town of Fairfax is located in Fairfax County. Its population has increased from 1946 in 1950 to more than 5500 in 1956, and it is anticipated there will be 15,000 inhabitants by 1960.
The headwaters of Goose Creek are near Linden in Warren County and it flows from there through Fauquier County into Loudoun County and empties into the Potomac River. The location of the proposed dam, is about 22 miles distant from Town of Fairfax. It will flood approximately 80 acres and create a reservoir about 2 1/2 miles long and relatively narrow. It is designed to insure 3.6 million gallons of water per day, which was estimated to be sufficient for future demands. The average daily flow for the 20 year period between 1930 and 1950 was 192.2 million gallons. The total cost of the project was estimated to be $4,500,000. A bond issue for that amount was submitted to the voters of Town of Fairfax at a referendum and it was approved by a ten to one vote. There were introduced into evidence resolutions passed by town councils of Vienna, Herndon, Leesburg and Fairfax stating that the proposed dam and water project would serve an essential public convenience for their towns by insuring a sufficient water supply.
Glenn W. Saunders, Jr., a graduate of Virginia Polytechnic Institute and a certified engineer, had charge of appellee's water system and was one of the principal witnesses for appellee. He stated that appellee owned eleven wells and two storage tanks; that the maximum daily capacity for water was slightly more than 600,000 gallons if the wells were operated continuously, but this was impossible; that the average daily consumption was 500,000 gallons, and that the storage tanks had a capacity of 900,000 gallons. He said appellee was not able to meet the water demands for the summer months. In June 1956 the largest producing well went temporarily dry and restrictions had to be placed on the use of water, which held consumption down to 550,000 gallons per day. Two days prior to the imposition of the restrictions, consumption was about 900,000 gallons per day. A fire at that time would have had a disastrous effect. He estimated a daily need of approximately 1,500,000 gallons by 1960 and a requirement of between 2,000,000 and 3,500,000 gallons by 1980.
According to Saunders, the construction of additional wells is not the answer to the town's problems. Past records show that after use the output gradually decreases and they cannot be relied upon. He emphasized that appellee needs an adequate dependable water source. Goose Creek possesses good water and is free from heavy pollution. He considered it the best location within a reasonable area where an adequate supply could be had at lowest cost for users. He thought the construction of the proposed dam would be a permanent answer to the water problem.
John C. Wood, Mayor of Town of Fairfax substantially corroborated the testimony of Saunders. He stated that in 1954 he appointed a committee consisting of council members and the then town engineer to conduct a survey and a study of available sources of water as well as costs. He also served as a member of this committee. An exhaustive inquiry and study were made which resulted in the passing of a resolution by the council to the effect that the erection of the proposed dam is a public necessity for appellee and will serve an essential public convenience.
At the conclusion of appellee's evidence, defendants moved to strike on the grounds, inter alia, that the evidence did not establish that a public necessity or an essential public convenience will be served by the erection of the dam. The motion was overruled and exceptions were taken. The defendants elected to stand on their motion to strike and presented no evidence. Whereupon the court found that a public necessity or an essential public convenience would be served by the erection of the dam, and appointed commissioners to make inquiries as provided for by § 15-742, Code 1950. The commissioners heard evidence, viewed the location of the proposed dam and reported in response to the inquiries that the watercourse at the dam site was not regularly used by the general public for the purposes of navigation and that the health of the neighbors will not be injured by the construction of the dam. No additional evidence was adduced before the court on the questions determined by the commissioners. Defendants renewed their motions to strike appellee's evidence, which were overruled.
At a later hearing defendants submitted certain restrictions and conditions which they considered should be imposed on appellee for the protection of residents of the Goose Creek watershed and Loudoun County as a whole. For the protection of these interests nineteen conditions and restrictions were included in the final order entered December 10, 1956 in which appellee was granted leave to erect the proposed dam. Exceptions were noted to the entry of this order.
Town of Leesburg was permitted without objection from appellant to file a brief in this appeal in support of appellee.
The sole question for us to resolve is whether the evidence is sufficient to sustain the trial court's finding that a public necessity or an essential public convenience will be served by the erection of the proposed dam across Goose Creek.
Section 15-740, Code 1950, authorizes a city or town to apply for leave to erect a dam across a watercourse, on which there is no community of a population of 500 or more, for the purpose of obtaining or enlarging a water supply. The application shall be filed in the circuit court of the county wherein such dam, or any portion thereof, is proposed to be built, shall be in writing and shall set...
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