Darling v. City Of Newport News

Decision Date13 June 1918
Citation96 S.E. 307
CourtVirginia Supreme Court

Sims, J., dissenting.

Error to Circuit Court of City of Newport News.

Bill by Frank W. Darling against the City of Newport News. Demurrers to the original and amended bills sustained, and both bills dismissed, from which plaintiff brings error. Affirmed.

Jones & Woodward, of Hampton, and J. Winston Read, of Newport News, for plaintiff in error.

J. A. Massie, of Newport News, for defendant in error.

PRENTIS, J. The appellant filed his bill against the appellee, basing his claim for relief upon the fact that he is the lessee from the state of very valuable oyster planting grounds located in Hampton Roads, on the northern side thereof near the city of Newport News, and that a considerable portion thereof has already been damaged and the oysters thereon polluted because of the sewer system of the city, which conducts sewage into Salter's creek and thence into the tidal waters of Hampton Roads, across the appellant's oyster beds, and that other and greater damage therefrom is probable. To this bill the appellee filed a demurrer, which the lower court sustained because of opinion that the case of Hampton v. Watson, 119 Va. 95, 89 S. E. 81, L. R. A. 1916F, 189, is controlling upon the main question involved.

In this conclusion of the trial court we concur. The syllabus of that case fairly states the conclusions of this court as follows:

"1. There is a marked and well-defined distinction between the pollution of a small non-navigable stream and the pollution of large tidal navigable bodies of salt water, for the reason that in the first case the bed of the stream and the waters are owned by the riparian owners, while in the latter case the bed of the navigable, tidal salt water and the waters themselves are owned and controlled by the state, for the use and benefit of all the public, subject only to navigation. It is for the state to say what uses shall be made thereof and by whom, subject always to the right of the public, and for the state, through the legislative branch of the government, to say how much pollution it will permit to be emptied into and upon its waters, so long as the owners of the land between low-water and high-water mark are not injured.

"2. A municipal corporation situated on an arm of the sea, adjacent to tidal waters, has the right to use such waters for the purpose of carrying off its refuse and sewage to the sea, so long as such use does not create a public nuisance, and any injury occasioned thereby to private oyster beds is damnum absque injuria."

Additional authorities to those cited in City of Hampton v. Watson, supra, all relating, however, to the federal government, to the effect that the power of the sovereign state or nation is perpetual, not exhausted by one exercise, and that all privileges granted in public waters are subject to that power, the exercise of which is not the taking of private property for public use, but only the lawful exercise of a governmental power for the common good, are: Scranton v. Wheeler, 179 U. S. 141, 21 Sup. Ct 48, 45 L. Ed. 126; Greenleaf Johnson Lumber Co. v. Garrison, 237 U. S. 251, 35 Sup. Ct 551, 59 L. Ed. 939; Willink v. United States, 240 U. S. 572, 36 Sup. Ct. 422, 60 L. Ed. 80S; State v. Cleveland, etc., Ry. Co., 94 Ohio St. 01, 113 N. E. 677, L. R. A. 1917A, p. 1014.

The appellant relies upon Huffmire v. Brooklyn, 162 N. Y. 584, 57 N. E. 176, 48 L. R. A. 421, and this case appears to sustain his contention, though it is observed that the New York statute, under which the owner of the oyster bed claimed there, provided that he should have "the exclusive property in the oysters so planted and the exclusive use of such oyster beds" (Laws 1868, c. 734), while the Virginia statute employs different language and provides that the oyster beds may be occupied "for the purpose of planting or propagating oysters thereon, " and that so long as the rent is paid annually in advance the state will guarantee to the renter for 20 years, "the absolute right to continue to use and occupy such grounds, subject only to the right of fishing in the waters above the said bottom." Sections 6, and 9, General Oyster Law (Acts 1910, p. 543).and therefore must have been within the contemplation of the General Assembly when the law was enacted, that there are vast areas of land in the tidal waters of Virginia remote from the centers of population and suitable for oyster culture. Hampton Roads, in which the appellant occupies 1, 800 acres of oyster-planting ground, of which 100 acres is alleged to be polluted, is a large, tidal, navigable body of salt water, formed by the confluence of the waters of the Atlantic Ocean, Chesapeake Bay, the James, Elizabeth, and Nansemond rivers, Hampton creek, and other smaller streams. That some of its waters have been long polluted and unfit for the planting of oysters for human food is also apparent from City of Hampton v. Watson, supra. Upon its shores, or closely adjacent thereto, are the cities of Norfolk, Portsmouth, Newport News, and Hampton, the towns of Phoebus and Kecoughtan, and great railway terminals and coaling stations. There is also the large population at Portress Monroe, the National Soldiers' Home, and in fact along the entire adjacent coast There the federal government has recently located large military and naval stations, and is building an immense freight terminal for military purposes. Upon its waters innumerable ships of war and commerce, domestic and foreign, constantly float. From all of these sources the waters of Hampton Roads are constantly subject to pollution and contamination such as is necessarily incident to all such roadsteads. This large population is destined still further to increase, and hence the probable sources of contamination will be increased.

If it be true that the private right of the appellant to continue to use and occupy this territory for the planting of oysters has been so guaranteed by the state as to make his rights superior to the interest of the large public otherwise entitled, within proper limits, to use the waters of Hampton Roads for its sewage, then the burden is clearly upon him to show that this is true. Until this is shown, it is unnecessary to discuss the proposition so urgently and well presented in the dissenting opinion; that is, that the General Assembly possesses unlimited power to grant absolute property rights in the lands of the state lying under the tidal waters.

That the right claimed by the city clearly existed before the enactment of the oyster law cannot be doubted, and the Legislature cannot be presumed to have intended to destroy this ancient and undoubted public right in the absence of a clear and explicit statute indicating such purpose. We think the more reasonable view of the statute is that it was not conceived that it would be thought desirable to continue to plant oysters in an area so certain ultimately to be polluted, and so likely upon inspection by the federal and state authorities to be condemned as unsuitable for that purpose.

This construction is not, as the dissentingopinion suggests, the substitution of the will and judgment of this court for the will and judgment of the Legislature, but, on the contrary, ascertains and declares the true meaning of the statute in accordance with the will and judgment of the General Assembly, which not only seeks to encourage oyster culture, but has also expressly authorized cities and towns to construct sewers within or without their limits. Acts 1908, p. 624. This conclusion effectuates both of these purposes. The bill seeks to deny to the city ot Newport News a privilege which is freely exercised by every ship which sails on these waters, and, except as restrained by local law, by every individual on these shores.

Under the Virginia statute, then, as construed by this court, the oyster planter takes his right to plant and propagate oysters on the public domain of the commonwealth in the tidal waters, subject to the ancient right of the riparian owners to drain the harmful refuse of the land into the sea, which is the sewer provided therefor by nature; while another statute (Acts 1916, p. 51) provides for the examination of such oyster-planting grounds so as to discover polluted areas, and prohibits the taking of oysters therefrom except for the purpose of removing them to unpolluted waters, there to remain until cleansed, purified, and made suitable for human food.


SIMS, J. (dissenting). The decision of this case, so far as the right of recovery of damages is concerned, turns upon the question whether the appellant had a private right of property in the oysters upon or in the oyster-planting ground in the bill mentioned.

If such property right existed, the city of Newport News, a municipal corporation, had no right to damage or destroy such property by what would have been a private nuisance at common law if created by a private person. 1 Farnham on Waters, §§ 138b, 138c, 138d; Gould on Waters, §§ 545, 546; Joyce on Nuisances, § 2S4.

Under the Constitution of Virginia of 1902, § 58, the legislative authority of the city does not shield it from liability to make "just compensation" for "damage" it may cause to private property by acts since that Constitution went into effect, which would have created a private nuisance at common law although such property be not "taken." 1 Farnham on Waters, § 138d; note to 48 L. R. A. 691, 698, et seq.; Swift & Co. v. Newport News, 105 Va. 108, 52 S. E. 821, 3 L. R. A. (N. S.) 404; Rigney v. Chicago, 102 Ill. 64; 1 Lewis on Em, Domain (3d Ed.) §§ 16 to 61, 108, 346, 356, 360. 361.

As said in the syllabus to Hampton v. Watson, 119 Va. 95, 89 S. E. 81, L. R. A. 1916F, 189:

"There is a marked and well-defined distinction between the pollution of a small non-navigable stream and the pollution of large tidal navigable bodies of salt water;" but this distinction, as also...

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