Richmond Fairfield Ry. Co v. Llewellyn

Citation157 S.E. 809
Case DateMarch 19, 1931
CourtSupreme Court of Virginia

157 S.E. 809


Supreme Court of Appeals of Virginia.

March 19, 1931.

[157 S.E. 809]

Appeal from Circuit Court, Henrico County.

Suit by the Richmond Fairfield Railway Company against Linda L. Llewellyn. From the decree, complainant appeals.

Affirmed in part, and reversed in part and remanded, with directions.

Argued before PRENTIS, C. J., and HOLT, EPES, HUDGINS, and BROWNING, JJ.

Williams & Mullen, Guy B. Hazelgrove, G. D. Gibson, and Ralph T. Catterall, all of Richmond, for appellant.

Albert O. Boschen, George E. Haw, and William C Miller, Jr., all of Richmond, for appellee.


The incipient step in the case before us was a bill of injunction sued out in the circuit court of Henrico county, Va., by the appellant, to enjoin and restrain the appellee, her agents, employees, etc., from obstructing a sewer or the easement therefor or the right of way thereof, or from molesting or interfering with or threatening appellant, its officers, agents, employees, etc., in going upon said right of way for the purpose of repairing, maintaining, or operating the sewer upon the same, or in any way molesting or violating appellant's right to the use and enjoyment of said sewer.

The parties hereto will hereafter be referred to as complainant and defendant, the relation borne by them in the trial court.

The bill was filed on August 5th, 1926. An answer, prepared by herself, was then filed by the defendant, which was afterward, by leave of court, withdrawn temporarily, for the purpose of the interposition of her demurrer to the bill, and thereafter through counsel she filed an additional answer and cross-bill, to which the complainant filed a plea of the statute of limitations and its answer. A temporary injunction was awarded by the court in accordance with the prayer of the original bill, and the depositions of the witnesses were taken by both parties to the litigation.

The several steps in the pleadings and the evidence show the facts to be as follows:

During the progress of the World War the United States of America acquired lands at or near Seven Pines, Va., and constructed and operated thereon an ordnance depot and mu-

[157 S.E. 810]

nitions plant, and in connection therewith established a village called Fairfield for the purpose of housing its employees. After the cessation of the war, this village was named Sandston, and at the time of the beginning of this controversy it had assumed town proportions with the incidental advantages of a larger community life.

Back in 1918 or 1919 the question of sewage and its disposal for the village of Fairfield became acute. Its inhabitants were then government employees. To effect this needful purpose the United States undertook to negotiate with the defendant and her husband for the right to construct and operate a sewage system or line across defendant's lands. The defendant and her husband owned a tract of 103.6 acres of land adjacent to said village. The effort to acquire this right by treaty or agreement failed, and in July, 1919, the United States instituted proceedings for such acquisition by requisition, a summary and quick method, for such purpose, under the provisions of an act of Congress (40 Stat. 550, c. 74, approved May 16, 1918, and amendments thereto). This act was a part of the emergency war legislation, and in substance it clothed the President, during the continuance of the war, with authority to requisition land, or any interest therein, for the purpose of providing housing and community utilities for workers in industries connected with, and essential to, the national defense. Upon requisition, the land might be at once taken and occupied. The President was also authorized to sell and convey such lands or interest therein, improvements, general community utilities, and parts thereof upon terms and conditions as he might determine, and this he might do either before or after the termination of the war. The act empowered the President to effect its purposes through such agency or agencies as he might create or designate, and that he might authorize the creation of a corporation or corporations with a capital stock. not to exceed $60,000, 000 for such purposes The United States Housing Corporation was the creature of this authorization. The above amount was appropriated, which was subsequently increased by statute to $100,000, 000, and the excess was likewise appropriated. Appropriate provisions of the act likewise directed the President to make just compensation to the person or persons entitled to receive it for the lands or any interest therein so requisitioned, and, if the amount determined by him should be unsatisfactory to the person entitled thereto, then 75 per centum of the amount should be paid to him, and he was accorded the right to sue the United States to recover such further sum as, added to 75 per centum, would make up such amount as would be just compensation therefor. This suit, in accordance with the terms of sections 24 and 145 of the Judicial Code (28 USCA §§ 41, 250), could be brought in the United States District Court or the United States Court of Claims, subject to the applicable statute of limitations and the requirement of trial by the court without a jury.

Under an executive order of June 18, 1918, the President directed the Secretary of Labor to exercise all power and authority vested in him by virtue of the said Housing Act, and an amendment of July 19, 1919, of the act (41 Stat. 224, c. 24) recognized such appointment.

Section 5 of the act provided that all deeds or other instruments of conveyance executed by the United States Housing Corporation, where the legal title to the property in question was in the name of said corporation, and by the United States of America by the Secretary of Labor where such title was in the United States of America, should be conclusive evidence of the transfer of title to the property in question in accordance with their purport.

There were executed and performed two instruments of requisition; the second was a duplicate of the first, except that it defined the width of the easement or right of way for the sewer, which was 24 feet.

The date of the first requisition was July 12, 1919, and of the second September 10. 1919.

Under this proceeding the United States at once took possession and occupation of the said easement or right of way for said sewer.

The things necessary to be done to make the acquisition of the easement valid from the complainant's viewpoint were enumerated with much detail in the instrument of requisition, and they need not be mentioned here, because the fact that its terms were complied with is not denied. Legal compliance with the mechanics of the method of acquisition is not an issue, for it is conceded. The effect of it all as bearing on the validity of the title of the complainant to the easement is seriously questioned by the defendant for reasons hereafter to be considered and determined. The United States then constructed a ditch on the easement or right of way from 6 to 10 feet wide and from 1 to 3 feet in depth through the lands of the defendant for a distance variously estimated by witnesses as from 700 to 1400 feet. A large type of piping was placed in this ditch at first, but that was taken out and replaced with 15-inch sewer pipes which were called for by the plat filed with the requisition papers. The houses of the village of Fairfield occupied by the employees of the government were connected with this sewer. The ditch was never covered over, according to the testimony of the witness for the complainant, J. A. Baird, although the defendant testified that, after August, 1926, the date of the filing of the bill of injunction, the sewer was closed. The discrepancy is probably accounted for by the possibility that defendant confused the ditch with the sewer piping. The sewage was discharged upon the

[157 S.E. 811]

right of way at the point on the lands of the defendant where the ditch and piping ended; the topography of the land at this point disclosing a depression, or, as some of the witnesses described it, swamp or marsh land.

In the year 1920 the complainant and the United States of America, through its agencies referred to, began contractual negotiations which culminated in the purchase of the easement or right of way by the complainant and the conveyance of it by the deed of January 20, 1921. The grantors were the United States Housing Corporation, and the United States of America by the Secretary of Labor and the grantee was the Richmond-Fairfield Railway Company, the complainant here.

The complainant acquired, by the same deed, title to the village of Fairfield, as owned by the grantors, which by and by grew and became the ambitious town of Sandston, adding, among other conveniences, to its corporate existence, a public school. The said easement or right of way furnished the sewage facilities for the town as it had for Fairfield and the government employees, who were its occupants.

Theretofore the United States Housing Corporation, for the purpose of settling with the defendant and compensating her under the provisions of the law for the property taken, offered the defendant the sum of $50 in full settlement. This was declined, and later the War Department Claims Board, Appraisal Section, offered her the sum of $3,041.00, which amount was fixed by a committee of the Richmond Real Estate Exchange, which was likewise declined. This offer was finally withdrawn by the said Board for the reason that it had been advised by the United States Housing Corporation that the Secretary of Labor had already made an award, and therefore it was without jurisdiction in the premises.

The requisition officer certified that, at the time of the completion of the requisition of the easement or right of way, he notified the defendant in accordance with the terms of the instrument of requisition of such action and of her rights as to...

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