Hite S v. Town Of Luray

• Decision Date: 08 April 1940
• Citation: 8 S.E.2d 369
• Court: Virginia Supreme Court
• Parties: HITE et als. v. TOWN OF LURAY.

8 S.E.2d 369

HITE et als.

v.TOWN OF LURAY.

Supreme Court of Appeals of Virginia.

April 8, 1940.

Error to Circuit Court, Page County; H. W. Bertram, Judge.

Suit by the Town of Luray, pursuant to Code 1936, § 6140a, against Mary E. Hite and others for construction of certain deeds.To review the decree, defendants bring error.

Affirmed.

Argued before CAMPBELL, C. J, and HOLT, HODG1NS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

F. S. Tavenner,. of Woodstock, Harry R. Taylor, of Keyser, W. Va., and J. Lynn Lucas and A. Erwin Hackley, both of Luray, for appellants.

Ford, Keyser & Swetnam, of Luray, for appellee.

CAMPBELL, Chief Justice.

The bill in this case was filed by the appellee, a municipal corporation, pursuant to the provisions of section 6140a of the Code.The prayer of the bill is that the court construe a deed from Ida L. Brown, conveying to the town of Luray a tract of land containing six and one-half acres, and also construe the mesne conveyances from W. E. Lauck to Ida L. Brown, and "determine what rights the Town of Luray acquired in and to Hite's Spring and the waters flowing therefrom and the right the said Town may make of said spring and the waters flowing therefrom."

The facts are agreed upon and it is conceded that the conveyance from W. E. Lauck to Huffman is the common source of title from which the lands and water rights of the appellee and appellants were derived.It is also conceded that a correct construction of the deed of Ida L. Brown to appellee depends upon the proper construction of a deed from W. E. Lauck and wife to David Huffman, bearing date February 28, 1866, granting to Huffman a tract of land containing one hundred and thirty four acres of land, together with certain other water and property rights on the remaining tract of land of the grantor and reserving certain water rights pertaining to the land granted.When Lauck conveyed this tract of land to Huffman, he remained the owner of the land on which the spring is located.

The pertinent part of this deed is as follows:

"The said grantee is to enjoy fully the water right for the mill and saw mill upon said hereinbefore described (land) as granted to him, but is to use the same in such manner as not in anyway to injure or damage the land or other property retained by the grantor.In order to more perfect en-joyment of said water right, said grantee is to have the privilege of repairing the race leading through the lands of the grantor but is not to change the location of the same; said grantee is also to have the right to cut a race from Dry Run to said race on the water flowing into the same through the land of the said grantor five feet wide and five feet deep but is to construct the embankments of the same so as to prevent overflow at anytime, and to secure the aperture through which the water is to flow from said run into said race so that at no time shall the water passing through the same exceed two feet in depth and five in width.The said grantor reserves to himself in this sale the right of the ordinary use of the water of the Spring which flows into said mill race—Also the right to so much of the water of said spring as will flow through a tube two and a half inches in diameter.Said grantor further reserves a road of twelve feet in width through the lands sold to said grantee to the grantor's land lying west of the land herein conveyed * * *."

Beginning with this conveyance, the succeeding chain of title is thus shown: By deed bearing date the 23rd day of April,

1866, David Huffman and wife reconveyed to Lauck a tract of six acres, three roods and twenty one poles being a part of the one hundred and thirty four acres.By deed bearing date 1st day of October, 1866, Huffman and wife reconveyed to Lauck a tract of land containing 108 acres, being a part of the one hundred and thirty four acres heretofore conveyed by Lauck.In the deed from Huffman to Lauck is this reservation: "But the said David Huffman reserves to himself all the water privileges and the means for using and enjoying the same which were conveyed to him by the said William Edwin Lauck in the deed aforesaid."Then, by deed dated November 25,

1867, Huffman reconveys to Lauck a one undivided half of 12 acres and 30 poles, being a part of the 134 acre tract "with a merchant mill, saw mill and other improvements, * * * together with one-half of all the water privileges conveyed to the said David Huffman by the said Wm. E. Lauck by the deed aforesaid."

Under a contract dated November 30,

1868, Lauck acquired the residue of the mill property from Huffman.By deed bearing date June 4, 1869, Lauck conveyed to James H. Judd, "a certain lot of land with merchant mill, saw mill and other improvements thereon, lying at Spring Farm in the said county of Page, containing 12 acres and 30 poles, and is the same property conveyed to the said Wm. E. Lauck by David Huffman and wife by two deeds of record in the Clerk's Office of the County Court of said county, together with all the water and other privileges, and subject to all the reservations embraced and described in a deed from the said Wm. E. Lauck and wife to the said David Huffman, bearing date on the 28th day of February, 1866."This mill property then by mesne conveyances was derived by W. L. Brown and by him devised to Ida L. Brown, his wife.By deed bearing date the 9th day of November, 1937, Ida L. Brown conveyed six and one-half acres upon which is located the mill, etc., to the appellee, together with "any and all water rights in and to what is locally and familiarly known as Spring Farm, now owned by Martin Kite's heirs, and which for many years past has been used by the owners of the aforesaid Brown Mill property, the water rights above referred to are fully described and set out, together with any and all reservations and restrictions as to the use thereof, in that certain deed executed by William E. Lauck and wife to David Huffman, bearing date on the 28th day of February, 1866, and duly of record in the said Clerk's Office in Deed Book M, at page 325, to which reference is hereby especially made, as well as to the other deeds hereinbefore mentioned."

While not necessary to be shown as a link in the chain of title, a conveyance from Lauck to David J. Patterson, after the reconveyance of Huffman to Lauck, is indicative of Lauck's status relative to the water rights conveyed, as the conveyance is "subject to the water and mill privileges heretofore granted to David Huffman."After a reconveyance of this land by Patterson to Lauck, by deed bearing date the 14th day of November, 1868, Lauck and wife, by deed bearing date the 10th day of November, 1869, conveyed to Martin Hite"a certain tract or parcel of land lying and being in the said county of Page, being a portion of the farm called the Spring Farm, and is all that portion of the same which was conveyed to the said W. Edwin Lauck by R. M. Patterson, attorney in fact for David J. Patterson by deed bearing date on the 19th day of November, 1868, and of record in the Clerk's Office of said county in Book N, at page 255, containing two hundred and seventy-five acres, more or less, together with all the privileges of water from the Spring on the said farm reserved by the said Wm. Edwin Lauck in his deed to James H. Juddrecently made and also of record in the said office."

At the date of his death, Martin Hite was seized and possessed of 218 ³/₄ acres of the land acquired from Lauck.AppellantsMary E. Hite and Joseph M. Hite derived title by inheritance, and appellantJoseph W. Comer derived title by conveyance from J. W. Comer, the grantee, in a deed from Barbara and Mary Hite.

Since the appellants and appellee claim under a common source of title, it follows that whatever interest appellee may have in Hite's Spring is governed by the provisions of the deed from Lauck to Huffman and later to Judd.The same is necessarily true of the rights of appellants.An analysis of the Lauck-Huffman deed demonstrates that to Huffman these rights were granted:

(1)"To enjoy fully the water right for the mill and saw mill;"

(2)"In order to the more perfect enjoyment of said water right to have the privilege of repairing the race leading through the lands of the grantor;"

(3)"Right to cut race from Dry Run, etc."

The rights reserved by Lauck in the deed were:

(1)"Grantor reserves to himself in this sale the right of the ordinary use of the water of the spring which flows into the said mill race;"

(2)"Also the right to so much of the water of said spring as will flow through a tube two and one-half inches in diameter;"

(3)"Roadway."

Stripped of all verbiage, it is the contention of appellants that the deed from Lauck to Huffman only...