Mullins v. Morgan

• Decision Date: 05 September 1940
• Docket Number: Record No. 2259.
• Citation: 176 Va. 201
• Parties: RACHEL V. MULLINS, ET ALS. v. F. E. MORGAN AND NAAMAN MORGAN.
• Court: Virginia Supreme Court

Page 201

176 Va. 201

RACHEL V. MULLINS, ET ALS. v. F. E. MORGAN AND NAAMAN MORGAN.

Record No. 2259.

Supreme Court of Virginia, Staunton.

September 5, 1940.

Present, Campbell, C.J., and Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.

1. NUISANCES — Injunctions — Necessity for Actual Damage — Case at Bar. — In the instant case, a suit to enjoin the construction of a building and to compel the removal of a concrete wall erected by appellees, the evidence showed that the wall extended out into a creek for a distance of eleven feet. Appellants were the owners of land situated along the same creek, and contended that the channel left open was not sufficient to carry the water in time of high tide and that consequently the water would be diverted over on to their land damaging the same. The evidence clearly demonstrated that appellees had encroached upon the channel of the creek to the extent of ten or eleven feet and that such encroachment considerably lessened the carrying capacity of the creek bed at that point.

Held: That the fact that appellants' property had not, at the time of the institution of the suit, been damaged was immaterial.

2. NUISANCES — Injunctions — Right to Relief from Potential Danger. — Where confronted with a nuisance and threatened with the destruction of his property, a person does not have to await the actual infliction of damage upon his property, but has a right, when the potential danger arises, to appeal to a court of equity for relief, if such appeal is seasonably made.

3. WATERS AND WATERCOURSES — Right to Flow of Water — Not Barred by Lapse of Time. — No lapse of time will bar the owner of land of the right to have a stream flow through the same in its natural bed or channel, as he holds that right by the same title that he holds his land.

4. NUISANCES — Injunctions — Laches — Estoppel — Procrastination — Case at Bar. — In the instant case, a suit to enjoin the construction of a building and to compel the removal of a concrete wall erected by appellees, the evidence showed that the wall extended out into a creek for a distance of eleven feet. Appellants were the owners of land situated along the same creek, and contended that the channel left open was not sufficient to carry the water in time of high tide and that consequently the water would be diverted over on to their land damaging the same. The record showed that appellees began the construction of the offending wall on May 1, 1939, and that the day after the work of digging a ditch for the foundation was begun, one of the appellants interviewed appellees and protested. Another of the appellants testified that he was out of town at the time the construction was begun, but that upon his return he protested to appellees. The wall was completed on May 22, 1939, and on May 24 appellants filed their bill for an injunction.

Held: That appellants were not guilty of laches and their conduct did not justify an equitable estoppel, nor were they guilty of procrastination, a term which has no foundation in law or equity.

5. JUDGMENTS AND DECREES — Declaratory Judgments — Duty of Wrongdoer to Assert Rights. — Under the Declaratory Judgment Statute, section 6140a of the Code of 1936, it is as much incumbent upon an alleged wrongdoer to assert his rights in a court of law as it is incumbent upon one whose alleged rights are being violated to assert them in a court of equity. After knowledge that a controversy has arisen, the duties of the respective parties are reciprocal.

6. NUISANCES — Injunctions — Effect of Expenditures by Defendant — Case at Bar. — In the instant case, a suit to enjoin the construction of a building and to compel the removal of a concrete wall erected by appellees, the evidence showed that the wall extended out into a creek for a distance of eleven feet. Appellants were the owners of land situated along the same creek, and contended that the channel left open was not sufficient to carry the water in time of high tide and that consequently the water would be divered over on to their land damaging the same. The record showed that appellees began the construction of the offending wall on May 1, 1939, and that the day after the work of digging a ditch for the foundation was begun, one of the appellants interviewed appellees and protested. Another of the appellants testified that he was out of town at the time the construction was begun, but that upon his return he protested to appellees. The wall was completed on May 22, 1939, and on May 24 appellants filed their bill for an injunction.

Held: That since appellees acted illegally in the erection of the wall, the fact that they had expended money unwisely was a risk they assumed, for which there was no relief.

7. NUISANCES — Injunctions — Construction of Wall into Creek So as to Divert Water — Case at Bar. — In the instant case, a suit to enjoin the construction of a building and to compel the removal of a concrete wall erected by appellees, the evidence showed that the wall extended out into a creek for a distance of eleven feet. Appellants were the owners of land situated along the same creek, and contended that the channel left open was not sufficient to carry the water in time of high tide and that consequently the water would be diverted over on to their land damaging the same. The record showed that appellees began the construction of the offending wall on May 1, 1939, and that the day after the work of digging a ditch for the foundation was begun one of the appellants interviewed appellees and protested. Another of the appellants testified that he was out of town at the time the construction was begun, but that upon his return he protested to appellees. The wall was completed on May 22, 1939, and on May 24 appellants filed their bill for an injunction.

Held: That appellants were entitled to an injunction.

Appeal from a decree of the Circuit Court of Buchanan county. Hon. Alfred A. Skeen, judge presiding.

The opinion states the case.

F. H. Combs, for the appellants.

Roland E. Chase, W. A. Daugherty and R. E. Williams, for the appellees.

CAMPBELL, C.J., delivered the opinion of the court.

Appellants instituted this suit against appellees in the Circuit Court of Buchanan county. The object of the suit was to enjoin appellees from the further construction of a large building situated on the south side of Slate Creek and to compel the removal of a concrete wall eight or ten feet high, erected by appellees, which extends out into the creek for a distance of eleven feet.

The material allegations of the bill of complaint are that appellants are the owners in fee of certain real estate situated in the town of Grundy; that said tracts or parcels of land are situated along and border on Slate Creek; that the channel of Slate Creek was seventy-four feet wide; that appellees are erecting a building on the south side of Slate Creek, and have, by the erection of a concrete wall, encroached upon the channel of Slate Creek to the extent of eleven feet, thereby diverting the flow of water in the channel of the creek and exposing the properties of appellants to the hazard of inundation and damage in time of high waters; and that said wall constitutes a nuisance.

The court granted a temporary injunction, but upon the final submission of the case on bill, answer and depositions, a decree was pronounced refusing a permament injunction and dismissing the bill of complaint. From this decree appellants have been allowed an appeal.

It is conceded by counsel that the case falls within narrow limits and is to be determined by a decision of two issues, viz: Have appellees, in the erection of the concrete wall in the channel of Slate Creek to the extent of eleven feet, created such a nuisance as entitles appellants to injunctive relief? Have appellants been guilty of laches in the prosecution of their suit seeking relief?

The evidence that appellees have encroached upon the channel of Slate Creek preponderates in favor of appellants. If there was any doubt about this conclusion, it has been settled by the trial court. In a written opinion, the trial court has reached a conclusion upon both of the issues involved in this case. The opinion is brief and is as follows:

"It is quite clear from the evidence that the creek bed just below the bridge recently constructed had a clearance of about seventy-seven feet in width and that defendant, Morgan, in the construction of the foundation for his building went out into the bed of the creek 10 or 11 feet, thus taking about one-seventh of the creek bed, which, of course, considerably lessened the carrying capacity of the creek bed at this point. However, it is contended by the defendant that the part of the creek bed not thus appropriated is amply sufficient to carry all of the water in Slate Creek in time of tide low or high. This contention is seriously controverted by complainants and constitutes their chief ground for asking the aid of a court of equity.

"Complainants assume the burden of proving that the flow of the water down Slate Creek is and will be seriously hampered by act of the defendant to their detriment.

"In support of this contention the complainants and certain other witnesses testify that in their opinion and from their observation of this creek in the past the channel left open is not sufficient to carry the water in time of high tide and that same will be diverted over on to their land thereby damaging same.

"The defendant counters chiefly with the testimony of a skilled engineer who after taking various measurements and after making neat calculations gives it as his opinion that the creek bed in its present condition is sufficient to carry the flow of water at all times. He backs this up with rather strong and persuasive figures and illustrations.

"Thus the case comes to the court in a state highly problematical and none can say with any degree of certainty as to which contention is right without an...