City Of Portsmouth v. Weiss

Citation133 S.E. 781
CourtSupreme Court of Virginia
Decision Date17 June 1926

Error to Circuit Court, Norfolk County.

Action by Weiss, etc., against the City of Portsmouth. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

R. C. Barclay and John W. Happer, both of Portsmouth, for plaintiff in error.

Wm. G. Maupin, of Norfolk, for defendant in error.

BURKS, J. This was an action against the city of Portsmouth to recover damages for flooding the lands of the plaintiff and destroying a crop of bulbs growing thereon. The flooding took place in July, 1922, and this action was not brought until July, 1924. There was a verdict and judgment for the plaintiff for $7,300.

The city of Portsmouth owns and controls a canal or ditch 11 miles long and originally 26 feet wide and 11 feet deep. The flow of the canal was towards the north, and the waters draining from the swamp into it would normally flow in a northern direction and empty into Deep creek, a tidal water course. The Portsmouth canal was intended to furnish a water supply for the city of Portsmouth. The water was taken out of Lake Drummond and conveyed to a point near the city. It was not intended to collect surface water, but necessarily did so in case of heavy rains. It was dug by a commission of seven freeholders of the city of Portsmouth, under authority of an act of the Legislature conferring that power, and the act provided that $75,000 of the funds of the city should be used towards this purpose. The act conferred certain powers and imposed certain duties upon the commissioners, and directed that when those powers and duties had been exercised and performed the canal should be turned over to the city of Portsmouth. Before the commissioners had completed their work, but after the canal was dug, the city abandoned the idea of using the canal as a supply for the city.

The Lake Drummond or Dismal Swamp canal, which was dug nearly a century ago, is a large canal used commercially for transportation, and runs practically parallel with the Portsmouth canal, and about two miles east of it.

There is still a third canal. The Richmond Cedar Works canal, about five miles long and practically the same size of the Portsmouth canal, runs at right angles to the other two canals nearly due east and west. Its western end in the swamp some three miles west of the Portsmouth canal, and it runs from that point eastwardly about three miles, when it reaches and cuts across Portsmouth canal, and again continues in the same easterly direction for two miles further to the Lake Drumrnond or Dismal Swamp canal, into which it empties. It intersects the Portsmouth canal about three miles from its northern end. The water level in the Dismal Swamp canal is about 18 inches higher than the bottom of the Portsmouth canal, hence in dry seasons the water in the Dismal Swamp canal would flow backthrough the Cedar Works canal into the Portsmouth canal, and thence empty into Deep creek above mentioned. On the other hand, if the water was high in the Dismal Swamp canal, the Cedar Works canal would operate as a spillway for the Dismal Swamp canal and causes it to overflow.

Under these conditions, the Dismal Swamp Canal Company built a dam in the Portsmouth canal about 250 feet north of its intersection with the Cedar Works canal, the effect of which would be to obviate the two difficulties above mentioned. This dam was 4 or 5 feet higher than the level of the water in the Portsmouth canal at times of still water. At the time of the injury complained of, there had been almost continuous rains in the Dismal Swamp for about a month, culminating in a heavy rain about July 20, 1922, the effect of which was that the Portsmouth canal was filled to overflowing with water which poured over the dam across the canal and also over the sides of the Cedar Works canal beteen the Portsmouth canal and the Dismal Swamp canal, the effects of which were to cause the water overflowing these canals to flood the lands of the defendant in error which lay between the Portsmouth canal and the Dismal Swamp canal, in a northeastern direction from the Cedar Works canal. The defendant in error had been for many years a grower of bulbs, and had cultivated them in large quantities on his farm. The slope of the land is from the Cedar Works canal in a northerly direction.

The dam across the Portsmouth canal was originally put in about 1916 or 1917 by the Dismal Swamp Canal Company, which maintained it for several years, and thereafter it was taken over by the city of Portsmouth and was being maintained by it at the time of the injury complained of. The city was interested in keeping it there, because there had been overflows from its canal near its northern terminus on other lands, resulting in litigation against the city. As said in the brief for the defendant in error:

"The summer of 1922 was a very wet season. Much rain fell, and the swamp became saturated, with water which drained into the Portsmouth canal, filling it, and flowed, with a swift current, northwardly. It was held up by the dam and diverted into the Cedar Works canal, already carrying its own drainage water, until the level of both canals was bank-high. The water so dammed back overflowed the east bank of the Portsmouth canal, between the dam and the Cedar Works canal, where the bank.was low, and overflowed the country to the east and north. The water was raised so high in the Cedar Words canal that it overflowed the north bank thereof where the shallow Weston Mill ditch intersected it, and, overflowing the banks of the mill ditch, inundated the surrounding fields. Through these overflows' the plaintiff's farm was submerged by the water brought down from the swamp, covered to an average depth of 18 inches—in places waist deep—and continued in that condition for five days.

"Finally, the pressure of water against the dam grew so great the dam washed out; and the city of Portsmouth promptly sent its engineer and a crew of men to repair it, which they did, as quickly as they could. * * *

"Up to the time of this overflow the plaintiff's bulbs were in a flourishing condition. The result of the overflow was that large numbers of the bulbs were killed. He instituted this action, alleging invasion of his premises by the city and resultant injury, and he obtained verdict and judgment for $7,300."

There was a demurrer to the declaration and to each count thereof, the chief ground of which was that the "declaration does not show that a written statement as required by an act of the General Assembly of Virginia, approved February 5, 1918 (Laws 1918, c. 20), was filed with the city manager of the defendant city" within 30 days after said alleged injury was received or sustained. The plaintiff joined in the demurrer, but insists that he was not obliged to give such notice because (1) the act of Assembly relied on is unconstitutional, but, even If constitutional, (2) the act, by its express terms, is only applicable where the injury is alleged to have been sustained by reason of the negligence of the city, and that this is not a case of a negligent injury.

The act (Laws 1918, c. 20) relied on is as follows:

"Sec. 31a. No action shall be brought against the city of Portsmouth for damages for an injury to any person or property alleged to have been sustained by reason of the negligence of the city, or of any officer, agent, or employee thereof, unless a written statement, verified by the oath of the claimant, his agent or attorney of the nature of the claim and of the time and place at which the injury is alleged to have occurred or been received, shall have been filed with the city manager of said city within thirty days after the injury occurred; the said statement may be verified and filed either by the person injured, the owner of the property damaged, the personal representative, agent, or attorney of said person or owner. And in any action against the city to recover damages against it for any negligence where any person is liable with the city for such negligence every such person shall be joined as defendant with the city in any action brought to recover damages for such negligence and when there is a verdict and judgment against the city as well as the other defendant it shall be ascertained by either the court or the jury which of the defendants is primarily liable for the damages assessed."

This act is substantially the same as the provisions of the charter of the city of Richmond, the validity of which was upheld in O'Neil v. City of Richmond, 141 Va. 168, 126 S. E. 56. In that case the constitutionality of the act was assailed on the grounds: (1) That the act was broader than its title, and (2) that it violates section 4 of the Bill of Rights, declaring that—

"No man, or set of men, is entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate legislator or judge to be hereditary."

In the brief of counsel for the defendant in error it is said:

"We are not unmindful of the case of O'Neil v. City of Richmond, 141 Va. 168, 126 S. E. 56, where the constitutionality of a similar statute was recently upheld by this court; but that case is not in point here, for the statute was attacked upon entirely different grounds, and nothing in the opinion is germane to the point raised here."

It is a grave mistake to suppose the case is not in point. It is wholly immaterial that the attack upon the statute in that case was "upon entirely different grounds." Whenever a statute is enforced by a judgment or decree of a court, it is a judicial determination that the statute is a valid enactment and is free from all constitutional objections. If unconstitutional for any reason, whether assigned or not, the statute is void.

[3, 41 Whenever a statute is enacted by the Legislature, it is a legislative declaration...

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