Du Pont Rayon Co. v. Richmond Industries, 4057.

• Decision Date: 06 October 1936
• Docket Number: No. 4057.,4057.
• Citation: 85 F.2d 981
• Parties: DU PONT RAYON CO., Inc., v. RICHMOND INDUSTRIES, Inc., et al.
• Court: U.S. Court of Appeals — Fourth Circuit

85 F.2d 981 (1936)

DU PONT RAYON CO., Inc., v. RICHMOND INDUSTRIES, Inc., et al.

No. 4057.

Circuit Court of Appeals, Fourth Circuit.

October 6, 1936.

J. Gordon Bohannan, of Petersburg, Va., and Carl E. Geuther, of Philadelphia, Pa. (Abel Klaw, of Philadelphia, Pa., on the brief), for appellant.

R. E. Cabell and Collins Denny, Jr., both of Richmond, Va. (Charles S. Valentine, of Richmond, Va., on the brief), for appellees.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from an order denying an interlocutory injunction and dismissing the bill of complaint in a suit instituted to enjoin a manufacturing corporation of Richmond, Va., from discharging waste from its dyeing plant into the James river. The complainant, the Du Pont Rayon Company, Inc., owns a large plant for the manufacture of "Rayon" and "Cellophane," which is situate on the James river about four miles below the city of Richmond. It alleges in its bill that it uses large quantities of water from that river in the manufacture of rayon and cellophane; that it is necessary that the water so used be free of dyestuffs, as their presence in the water in the proportion of even a small fraction of one part per million will discolor the rayon and cellophane of its manufacture and greatly depreciate the value thereof; that the defendants are about to erect a dyeing plant and to engage in the business of dyeing fabrics in the city of Richmond; that such plant will discharge its waste, a large part of which will be dyestuffs, through sewers into the James river above the water intake line of complainant; and that such discharge will pollute the waters of the river which are necessary for the operation of complainant's plant and will thereby result in great injury and damage to complainant's property.

While complainant does not specifically allege that defendants will discharge the waste from their dyeing plant through the sewers of the city of Richmond, it does allege that their plant is within the corporate limits of the city and that they are the owners of certain sewer and water lines connected with their property; and it was established by affidavit in the court below and was not denied, either there or in this court, that defendants' purpose was to discharge the waste from their plant through the city sewers. It is admitted that the city sewers discharge into the river below the beginning of tidewater and about four miles above the plant of complainant.

The court below was of the opinion that, in view of the facts as disclosed by the pleadings and affidavits, no case was made for an interlocutory injunction, whatever view might be taken of the law, and, even if we were of opinion that the court's view of the law was erroneous, we would affirm this holding. There is nothing in the record to show any abuse of discretion; and exercise of discretion in granting or refusing an interlocutory injunction will not be reviewed in absence of abuse. National Fire Ins. Co. v. Thompson, 281 U.S. 331, 338, 50 S.Ct. 288, 291, 74 L.Ed. 881; United Fuel Gas Co. v. Public Service Commission, 278 U.S. 322, 49 S.Ct. 157, 73 L.Ed. 402; State of Alabama v. United States, 279 U.S. 229, 231, 49 S.Ct. 266, 73 L.Ed. 675; Sinclair Refining Co. v. Midland Oil Co. (C.C.A.4th) 55 F.(2d) 42, 45. The court went further, however, and dismissed the bill; and this brings before us the question whether the bill, in the light of the admissions to which we have adverted, makes a case for injunctive relief. We agree that it does not.

It is well settled, of course, that the nature and extent of the rights of complainant, as a riparian owner, to the use of the waters of a stream within the state of Virginia, is to be determined by the law of that state as set forth in its statutes and the decisions of its courts. Fox River Paper Co. v. Railroad Commission of Wisconsin, 274 U.S. 651, 47 S.Ct. 669, 71 L.Ed. 1279. And we think it clear that, while the riparian owner is entitled under the law of Virginia to make a reasonable use of the water as it flows past or laves his land (Taylor v. Commonwealth, 102 Va. 759, 47 S.E. 875, 102 Am.St.Rep. 865), this right on tidal, navigable waters is subject to the jus publicum, or right of the public, to use the waters for sewerage purposes (City of Hampton v. Watson, 119 Va. 95, 89 S.E. 81, L.R.A.1916F, 189; Darling v. City of Newport News, 123 Va. 14, 96 S.E. 307, 3 A.L.R. 748; Id. 249 U.S. 540, 39 S.Ct. 371, 63 L.Ed. 759; Commonwealth of Virginia v. City of Newport News, 158 Va. 521, 164 S.E. 689, 699).

In City of Hampton v. Watson, supra, which involved liability for damage done to an oyster bed by emptying of sewage into Hampton creek, a navigable, tidal stream, the court held that, although the commonwealth owned the land upon which the oyster bed was situate and had leased it to the plaintiff, the rights of plaintiff with respect thereto were subject to the rights of the public to use the waters in question for sewerage purposes, and drew a distinction between rights with respect to navigable, tidal waters and other waters flowing through the state (a distinction in accord with the current of authority, 9 R.C. L. 682). In Darling v. City of Newport News, supra, in which the same question was involved, the holding in City of Hampton v. Watson was affirmed and express approval was given to the following statement of the law as contained in its syllabus, viz.:

"1. There is a marked and well-defined distinction between the pollution of a small nonnavigable stream and the pollution of large tidal navigable bodies of salt water, for the reason that in...