Hampton Roads Sanitation Dist. Com'n v. City of Chesapeake

Decision Date13 January 1978
Docket NumberNo. 761284,761284
PartiesHAMPTON ROADS SANITATION DISTRICT COMMISSION v. CITY OF CHESAPEAKE. Record
CourtVirginia Supreme Court

Joseph J. Lawler, Norfolk (Kellam, Pickrell & Lawler, Norfolk, on brief), for appellant.

Ronald S. Hallman, Deputy City Atty., Chesapeake (Vernon T. Forehand, City Atty., Chesapeake, on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN and COMPTON, JJ.

I'ANSON, Chief Justice.

The city of Chesapeake (city) instituted this declaratory judgment proceeding against the Hampton Roads Sanitation District Commission (HRSD) asking the court below to declare that HRSD is obligated to pay the cost of relocating its sewer main situated in Indian River Road, a public street in the city. The relocation was necessitated by the city's improvements to the street.

While the action was pending, the parties agreed, without prejudice to the rights of either, to the entry of an order which provided that HRSD would let a contract for the work of relocating the main; that payment would be made by the city to the contractor as the work was approved by HRSD; and that the court would determine which of the two parties would ultimately bear the cost of relocating the line.

The trial court, after hearing evidence ore tenus without a jury, in a letter opinion held that HRSD was legally obligated to pay the cost of relocating its sewer main. Accordingly, it ordered that the city recover from HRSD the sum of $26,630.26, the agreed cost of the relocation work.

The parties agreed that the Commonwealth has control of the streets and highways within its borders and the legislature had the power and authority to grant HRSD the right to place its sewer lines in, or along and under the streets of the city; and that the legislature had delegated to the city the power to lay out and improve its streets.

HRSD is a political subdivision of the Commonwealth. It was created and organized under the Sanitation Districts Law of 1938. Acts 1938, c. 335 at 510. Subsequently, the legislature validated the creation and organization of the Hampton Roads Sanitation District Commission. Acts 1960, c. 66 at 69.

Section 10(k) of the 1960 Act at 73, which is quite similar to the language of § 13 of the 1938 Act at 523, authorizes and empowers HRSD:

"to construct and operate its trunk, intercepting and outlet sewers, sewer mains, laterals, conduits or pipelines in, or along or under any streets, alleys, highways or other public places within or without the District; in so constructing its facilities, it shall see that the public use of such streets, alleys, highways and other public places is not unnecessarily interrupted or interfered with and that such streets, alleys, highways and other public places are restored to their former usefulness and condition within a reasonable time; to this end, the Commission shall cooperate with the State Highway Commission and the appropriate officers of the respective counties, cities and towns having an interest in such matters;"

The evidence shows that in 1965 HRSD installed the line in question within the limits of the right-of-way of Indian River Road. Thereafter, it became necessary for the line to be relocated to facilitate street improvements by the city acting jointly with the Virginia Department of Highways, and HRSD refused to pay the cost of relocating the line based on its interpretation of § 10(k).

Frank H. Miller testified that he was Chief Engineer of HRSD from 1949 until his retirement in November 1971, and after 1958 he had the additional duties of General Manager for the remainder of his service. He stated that at the time of his retirement ten cities and counties in the Tidewater area were a part of the sanitation district. Testifying purely from memory, Mr. Miller stated that during the time of his service with HRSD, he would estimate it was necessary on 75 to 100 occasions to adjust and/or relocate their sewer lines to accommodate street and highway improvements. On some of those occasions, the relocation work was for the most part routine and did not require any great expenditures, and in the spirit of cooperation HRSD bore the cost of relocation. He stated, however, that in most instances the cost of relocating HRSD's sewer lines was borne by the city affected. After 1960, it was necessary to relocate more of HRSD lines because the system became older and improvement of streets became more frequent. He cited instances in which the costs of relocation of HRSD lines were absorbed in the street construction contracts at no cost to HRSD. 1 Another instance cited involved the lowering of the district's forced main in Simpson Street in the city of Norfolk to accommodate a drainage culvert. Mr. Miller said he believed that "work was done by us and paid for by the city." He also said that he "believed" the city of South Norfolk before it became a part of the city of Chesapeake paid for the relocation of some of HRSD's lines occasioned by street improvements.

Maurice Person testified that he had been connected with HRSD since 1961, and his testimony relating to payment of relocation costs of sewer lines occasioned by required changes in streets and highways would be substantially the same as Mr. Miller's.

B. J. Boyd testified that he had been employed in the Public Works Department of the city since 1962 or 1963, and prior to that time he was construction inspector for the Virginia Department of Highways. He stated, to his knowledge the city had never paid for the relocation of any of HRSD's sewer lines occasioned by improvements of the city's streets.

HRSD contends that the legislature in granting it the right to "construct and operate" its sewer lines in city streets imposed upon it under the provisions of § 10(k) of the 1960 "enabling act" only the duties to "see" that the public use of the streets was not unnecessarily interrupted; that the streets would be restored to their former usefulness and condition; and that it cooperate with the appropriate city officials in the premises. Thus, HRSD argues that under this grant by the legislature, it was reasonable to conclude that if the legislature had intended the use of the streets by HRSD embraced an additional duty to bear the cost of relocating its facilities necessitated by street improvements, appropriate language would have been added to make such duty clear. We do not agree.

In the absence of a statute or an agreement to the contrary, Virginia, like most jurisdictions, adheres to the common-law rule that a public utility is required to relocate and/or adjust at its own expense its facilities located in public streets and highways when such relocation and/or adjustment is necessary to facilitate street and highway improvements. PEPCO v. Highway Commissioner, supra, 211 Va. at 748, 180 S.E.2d at 659; Anderson v. Water Co., 197 Va. 36, 44-5, 87 S.E.2d 756, 762 (1955). See New Orleans Gas Light Co. v. Drainage Comm. of New Orleans, 197 U.S. 453, 459, 460-61, 25 S.Ct. 471, 49 L.Ed. 831 (1905); State Highway Dept. v. Roberts, 42 Del.Ch. 486, 215 A.2d 250, 254 (1965). See also opinions of the Attorney General of Virginia. 1964-65 at 129 and 1975-76 at 78.

The rationale of the above rule is that since a utility acquires its rights to make special or exceptional use of a public street or highway only by permissive grant of the state or a municipality,...

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