Norfolk & W. Ry. Co v. Obenshain

• Decision Date: 21 November 1907
• Citation: 107 Va. 596,59 S.E. 604
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. OBENSHAIN, et al.

59 S.E. 604

107 Va. 596

NORFOLK & W. RY. CO.

v.OBENSHAIN, et al.

Supreme Court of Appeals of Virginia.

Nov. 21, 1907.

1. Dismissal—Waters and Water Courses— Obstruction—Bill to Restore Rights-Parties.

A bill against a company and an individual defendant to restore an obstructed water right was properly dismissed as to the latter, where the only reference to him was that he had pretended to convey the right to the company though not owning it, and no relief was asked against him, and where the company's answer was not filed as a cross-bill, and he was not made a party to it.

2. Waters and Water Courses — Conveyance—Sufficiency of Description.

Under Code 1904, § 2443, providing that every deed shall, unless an exception be made therein, be construed to include all appurtenances belonging to the land, a conveyance of all the grantor's right, title, and claim of whatever kind in land, included a water right reserved as an easement appurtenant to the land in a conveyance of a railway right of way by his remote grantor.

3. Same—Abandonment.

That a water right reserved in the conveyance of a railway right of way has not been used for several years does not show that it has been extinguished or abandoned.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, § 183.]

Appeal from Circuit Court, Botetourt County.

Bill by D. C. Obenshain against the Norfolk & Western Railway Company and James Mundy. From a decree dismissing the bill as to defendant Mundy, and a decree for complainant, defendant company appeals. Affirmed.

E. M. Pendleton, for appellant railway company.

Benjamin Haden, for appellant Mundy.

W. B. Simmons, for appellee.

HARRISON, J. This bill in chancery was filed by the appellee, J. C. Obenshain, against the appellant and James Mundy, to have restored a certain water right alleged to have been obstructed by a wide and high fill made by the Norfolk & Western Railway Company over the route of the race and trunk formerly used in conducting the water over the right of way granted by J. J. Echols to the Shenandoah Valley Railroad Company in August, 1881. The complainant claims that he owns this water right, and is entitled to have it flow from its source unobstructed to his foundry and machine shops, and that he has acquired this right under his purchase of this property from his grantor and her predecessors in title.

By decree of September, 1905, a demurrer to the bill by James Mundy was sustained, and the bill dismissed as to him, and in June, 1906, the cause was considered on its merits, upon the proceedings had therein, and a decree entered, holding that the complainant was entitled to the water right in question as appurtenant to his foundry and machine shop lot; and the court, not being then advised as to the best method of affording the complainant relief, recommitted the cause to its master commissioner, who was directed to inquire and report whether the defendant railway company should be required unconditionally to remove the obstruction, or whether it should be required to provide a passageway for the water through its fill, and, if the latter, to locate the point at which such passageway should be constructed and the size of the same. From both of these decrees this appeal has been taken.

We are of opinion that the circuit court committed no error in sustaining the demurrer of James Mundy and dismissing the bill as to him.

The only reference to James Mundy in the bill is that by his deed of April 30, 1901, he had attempted and pretended to convey the water right in question to the appellant company, charging that Mundy did not own such water right, and that the railway company, therefore, acquired no rights under such pretended deed, which was void. The bill charged that the water right had been obstructed by the Norfolk & Western Railway Company making a fill across the water course. It does not charge that Mundy had obstructed the water right, that he owned any landthrough which the water would run, or that he had any control over or right to the water. It does not allege that Mundy can, or should be required to, restore such water right if the complainant is entitled to it. No relief is prayed for against Mundy; the prayer of the bill being that the appellant railway company be required to remove the fill, or that it be required to pay a money compensation in lieu of such removal, and that it be enjoined from further interfering with the flow of the water. There is no issue made by the pleadings between Mundy and the appellant railway company. The answer of the appellant was not filed as a cross-bill, and Mundy was not made a party to it, and was not required to take any notice of its allegations. If it be claimed that Mundy is under a liability to the railroad company by reason of his deed...