City Of Petersburg v. Petersburg Aqueduct Co

• Decision Date: 16 June 1904
• Parties: CITY OF PETERSBURG. v. PETERSBURG AQUEDUCT CO.
• Court: Virginia Supreme Court

47 S.E. 848

102 Va. 854

CITY OF PETERSBURG.

v.PETERSBURG AQUEDUCT CO.

Supreme Court of Appeals of Virginia.

June 16, 1904.

MUNICIPAL CORPORATIONS — POLICE POWER — STREETS—OBSTRUCTION—-WATER COMPANY—CHARTER RIGHTS.

1. Under Code 1887, § 1093, providing that no company shall occupy with its works the streets of a city without the consent of the council, and that the city shall have power to prevent the incumbering of the streets in any manner whatever, a city has power to prohibit a water company organized and chartered when

the city was a sparsely settled town, and which had never since attempted to extend its system beyond the limits then established from digging up and obstructing the streets in extending its limits, even though the charter of the company authorizes it to dig up streets to lay and repair its pipes.

2. Conceding that a water company was entitled under its charter to dig up and obstruct the streets of a city without the latter's consent in order to extend its system, it was not entitled so to do where the facts show it to be insolvent, and without adequate means either as to capital or water supply of properly enlarging its system.

Appeal from Circuit Court of City of Petersburg.

Suit for an injunction by the city of Petersburg against the Petersburg Aqueduct Company. From a decree for plaintiff, defendant appeals. Reversed.

Geo. Maron and W. B. Mcllwaine, for appellant.

Davis & Davis, for appellee.

WHITTLE, J. The object of this suit is to enjoin appellee from digging up or otherwise obstructing the streets of the city of Petersburg for the purpose of laying water mains therein, without the consent of the city council. At the hearing the trial court dismissed the bill on demurrer, and from that decree the city appeals.

The bill presents the following case: By an act of the General Assembly passed February 22, 1822 (Acts 1821-22, p. 73, c. 98), the aqueduct company was chartered for the purpose of conducting a full and sufficient supply of water from springs within the corporate limits of the town of Petersburg, or within a mile of the same, or from the falls of the river, or the basin of the canal, to and along the streets of the town, provided the streets or highways were not to be opened in such manner as to prevent the passing of teams or carriages therein with convenience; and that, after opening the ground in the streets or highways, the company should put the same in good repair under penalty of being prosecuted for a nuisance. At that time the population of the town numbered only a few thousand, and the inhabited part of it was mostly confined to the lower district of the present city along the tide-water level of Appomattox river. Soon after its incorporation the company acquired certain springs in the town and in the county of Chesterfield, and conveyed the waters therefrom through very small pipes, supplying some little water for domestic purposes, mainly for drinking purposes, to the inhabitants of the district referred to along the lower levels near the river. Many years ago the company installed a few fire hydrants, but they have long since been abandoned, doubtless on account of the insufficiency of the water supply. The small spring in the city from which the company in part drew its supply has become so contaminated as to require its absolute abandonment, so that the company's entire available source of supply is from the springs in Chesterfield county. The water from those springs is collected in two reservoirs, only a few feet square, from which it flows through a four-inch main, under Appomattox river, into the lower section of the city.

These conditions continued from the date of the charter until within a short time before the institution of this suit. In the meanwhile, as the town increased in size and population, the company became wholly unable to meet the growing demand, and to supply the community with sufficient water for drinking purposes alone, and made no attempt to do so. Nearly the whole city was devoid of any water supply, except from private wells, and no provision was made for protection against fire.

In this situation of affairs, in the year 1857, the city was compelled to establish, and by virtue of authority of its charter did establish, at a cost of a half a million of dollars, a thorough and adequate water system furnishing the community with an abundant supply of clear, pure, and wholesome water. The distribution of pipes and conduits conducts water through all parts of the city, and the pressure from high-service reservoirs and pumps forces the water to the highest elevations within the corporate' lim-its, furnishing it in ample quantities for hygienic and protective purposes, and enabling the city to maintain an efficient fire department. Even in the lower parts of the city, traversed by the company's pipes, many citizens are obliged to take city water on account of the otherwise inadequate supply.

The bill further charges that if the company ever had a right to lay its pipes and conduct its water into any other parts of the city than those already occupied, which is denied, the presumption has long since arisen that it has surrendered such right, which surrender has been accepted by the commonwealth. In addition to that, it is alleged that the company is debarred, by reason of vested riparian rights, from taking water from the...