Halltown Paperboard Co. v. C. L. Robinson Corp.

• Decision Date: 14 June 1966
• Docket Number: No. CC,CC
• Citation: 150 W.Va. 624,148 S.E.2d 721
• Court: West Virginia Supreme Court
• Parties: HALLTOWN PAPERBOARD COMPANY, a West Virginia corporation v. The C. L. ROBINSON CORPORATION. 868.

Page 721

148 S.E.2d 721

150 W.Va. 624

HALLTOWN PAPERBOARD COMPANY, a West Virginia corporation v. The C. L. ROBINSON CORPORATION.

No. CC 868.

Supreme Court of Appeals of West Virginia.

Submitted May 12, 1966.

Decided June 14, 1966.

Syllabus by the Court

1. Any questions pertaining to a ruling of the trial court on a motion which challenges the sufficiency of a pleading are properly certifiable.

2. A motion to dismiss on the ground that a court lacks jurisdiction is a motion challenging the sufficiency of a pleading and a ruling thereon is properly certifiable.

3. When a court, created and in existence by virtue of the Constitution, is granted certain jurisdiction by that document, the legislature has no power to impair the essential nature or jurisdiction thereof unless specific authority is conferred upon the legislature by the Constitution.

4. Code, 1931, Chapter 20, Article 5, as amended, confers no jurisdiction upon the Water Resources Board to adjudicate the rights of two riparian owners in the waters of a watercourse common to both.

Rice, Hannis & Rice, Lacy I. Rice, Jr., Martinsburg, for plaintiff.

Clarence E. Martin, Jr., Martinsburg, for defendant.

CAPLAN, President:

Halltown Paperboard Company, the plaintiff in this proceeding, owns and operates a manufacturing plant on Flowing Spring Run which flows in an easterly direction in Jefferson County, West Virginia. In the operation of its business the plaintiff, hereinafter referred to as Halltown, uses the water from the stream upon which it is located. The defendant, The C. L. Robinson Corporation, herein called Robinson, owns and operates a farm and orchard which are situate on Flowing Spring Run approximately one mile west of Halltown. Thus, both parties are riparian owners along this stream.

In its complaint Halltown alleges that the use of the water from Flowing Spring Run is necessary to the successful operation of its paperboard plant; that such use has been enjoyed at the same location since 1869; that the defendant, in the operation of its orchard business, has constructed a pumping station whereby large quantities of water are pumped from the stream, said water being used to irrigate its fruit trees; that such continuous pumping has caused a diminution of the stream's water supply to the extent that Halltown's manufacturing operation has been materially damaged; that on at least three separate occasions the defendant's continuous pumping of water diminished the flow of water to the plaintiff's property to such a degree that the plaintiff was forced to shut down and terminate its operations completely for periods of from two and one half hours to four and one half hours; that as a lower riparian owner, the plaintiff is entitled to a free flow of water to its property without disturbance, interference or material diminution by the defendant, an upper riparian owner; and that if the defendant is permitted to continue this pumping operation the plaintiff will suffer irreparable injury and loss.

Upon these facts Halltown sought an injunction to enjoin Robinson from continuing to take water from Flowing Spring Run and in addition sought to recover the sum of $5,994.26 for damages already incurred. After a hearing at which both parties were represented by counsel, the court, on August 30, 1965, granted a preliminary injunction. Subsequently, on September 10, 1965, the defendant filed a motion to dismiss and dissolve the preliminary injunction, stating as grounds therefor: '1. That there is no jurisdiction in this Court to grant the relief sought in the complaint filed herein. 2. That the pleadings filed herein do not disclose that the plaintiff has exhausted all of its administrative remedies.'

On November 24, 1965 the court overruled the defendant's motion and certified the following questions to this Court:

'1. Does this Court have jurisdiction to adjudicate upon the rights of two riparian owners, one upper and one lower, in the waters of a watercourse common to both?

'2. Has the Water Resources Board primary jurisdiction, supervision and administration of all laws relating to the allocation, appropriation, protection, enjoyment and use of the water resources of West Virginia, including the waters in the watercourse involved in this action?

'3. If the answer to No. 2 is in the affirmative, is it necessary for the plaintiff in this action to first exhaust its remedies by applying to the Water Resources Board for redress before it can seek the remedies sought in this action before this Court?'

Certain questions having been certified by the trial court, it must first be determined whether this is a matter which is properly certifiable. Any questions pertaining to a ruling of the trial court on a motion which challenges the sufficiency of a pleading are properly certifiable to this Court. Code, 1931, 58--5--2. In the instant case the motion to dismiss challenged the sufficiency of the complaint on the ground that the court lacked jurisdiction to grant the relief sought. The defendant's motion to dismiss was made in accordance with the provisions of R.C.P. 12(b)(1). Demurrers having been abolished by R.C.P. 7(c), their function is now accomplished by a proper motion to dismiss under R.C.P. 12(b). Therefore, the defendant's motion, serving the same function as did the demurrer prior to adoption of the West Virginia Rules of Civil Procedure, properly challenged the sufficiency of the complaint and the questions before us are certifiable.

Of primary concern in answering the specific questions certified to this Court by the trial court is the matter of the jurisdiction of such court in a dispute between riparian owners involving their respective rights to waters in a stream common to both. We are not concerned here with the merits of the case but only with the jurisdiction of the...