Roanoke W.W. Co. v. Glass Co.

• Decision Date: 20 September 1928
• Citation: 151 Va. 229
• Parties: ROANOKE WATER WORKS COMPANY v. ROANOKE GLASS COMPANY, INC.
• Court: Virginia Supreme Court

Page 229

151 Va. 229

ROANOKE WATER WORKS COMPANY v. ROANOKE GLASS COMPANY, INC.

Supreme Court of Virginia, Staunton.

September 20, 1928.

1. CONTEMPT — Proceedings by Contempt Against Party for Violating Provisions of an Injunction Decree — Appeal and Error — Law of the Case — Decree not Appealed from Settles Law of the Case. — The instant case was a proceeding upon a petition, praying that a rule issue against defendant to show cause why it should not be punished because of its violations of an injunction decree. From the decree in question there was no appeal, and therefore it settled the law of the case to the extent that defendant might put a building on its land over the main of complainant, a water company, but that the building must be so constructed as not to "unreasonably interfere" with the right of ingress and egress granted to complainant by defendant's predecessor in title.

2. CONTEMPT — Classes of Contempt — Civil and Criminal. — Proceedings for contempt of court are of two classes — those prosecuted to preserve the power and to vindicate the dignity of the court, and those instituted to preserve and enforce the rights of private parties. The former are criminal and punitive in their nature; the latter are civil and remedial.

3. CONTEMPT — Appeal and Error — Appeal from Decree in Civil Proceedings. — An appeal will lie from a decree in contempt proceedings instituted to preserve and enforce the rights of private parties.

4. CONTEMPT — Appeal and Error — Writ of Error or Appeal — Endorsement that an Appeal and not a Writ of Error was Allowed Immaterial — Case at Bar. — The instant case was a proceeding upon a petition, praying that a rule issue against defendant to show cause why it should not be punished because of its violations of an injunction decree. It was contended by appellee that no appeal would lie from a decree in such a case, for the reason that it was a proceeding criminal in its nature. Section 4932 of the Code of 1919 provides that a writ of error shall lie in contempt cases. The Supreme Court of Appeals had before it the record in the injunction suit, the pleadings and decrees in the contempt proceedings and a certificate of evidence, properly signed by the judge; that is to say, it had before it every requisite necessary when a writ of error is granted.

Held: That the Supreme Court of Appeals would treat as a mere inadvertence the endorsement of the fact that an "appeal" and not a writ of error was allowed.

5. WATER COMPANIES AND WATER WORKS — Easement for Mains and Pipes — Easement of Five Feet on Each Side of Pipe — Case at Bar. — In a contempt proceeding to enforce an injunction decree enjoining defendant from interfering with the rights of complainant under an easement of a right of way over defendant's land for complainant's water main, it was assigned as error that the decree determined that the complainant required a space of five feet on each side of the center line of its pipe line, whereas it was claimed that the five feet should begin not at the center line but from the outside of the pipe. The difference was between a reservation of ten or a reservation of eleven feet.

Held: That the difference was unimportant, and that the judgment of the trial judge, who has been and personally inspected the premises, should be adopted.

6. WATER COMPANIES AND WATER WORKS — Easement for Mains and Pipes — Concrete Floor of Building Over Main — Case at Bar. — In a contempt proceeding to enforce an injunction decree enjoining defendant from interfering with the rights of complainant under an easement of a right of way over defendant's land for complainant's water main, it was assigned as error that the decree determined that the concrete floor of the building erected by defendant over the water main was not an unreasonable infringement of the easement. The concrete blocks of which the floor was composed were removeable, thus allowing access to the main.

Held: That as the land in question was originally a highway, and if it had remained a highway might have been solidly covered with concrete, there was no merit in this assignment.

7. WATER COMPANIES AND WATER WORKS — Easement for Mains and Pipes — Height of Ceiling in Basement Over Main — Case at Bar. — In a contempt proceeding to enforce an injunction decree enjoining defendant from interfering with the rights of complainant under an easement of a right of way over defendant's land for complainant's water main, it was assigned as error that the decree was erroneous in determining that the ceiling of the basement of the building erected by defendant over the water main, which was eight feet eight inches from the floor, was not an infringement of the easement. A witness for appellant testified that a height of nine feet would be sufficient.

Held: That this difference of four inches was too inconsiderable to merit consideration.

8. WATER COMPANIES AND WATER WORKS — Easement for Mains and Pipes — Doors to Basement over Main — Case at Bar. — In a contempt proceeding to inforce an injunction decree enjoining defendant from interfering with the rights of complainant under an easement of a right of way over defendant's land for complainant's water main, it was assigned as error that the decree allowed defendant to place and maintain doors in the basement of a building erected by defendant over the main, equipped with locks and keys so that the means of locking and unlocking should be equally available to both parties. The right of way in question was of considerable length, probably a mile long.

Held: That is would be unreasonable that the easement should be locked in many cellars, and that gates instead of doors might be placed if desired, but they should swing easily and be kept unlocked, and when open they must in no wise narrow the ten-foot right of way of complainant.

Appeal from a decree of the Circuit Court of the city of Roanoke. From the decree establishing the rights of the parties in respect to a right of way of a water main, complainant appeals.

The opinion states the case.

C. E. Hunter and Funkhouser & Apperson, for the appellant.

Woodrum, McCauley & Parsons, for the appellee.

HOLT, J., delivered the opinion of the court.

Prior to June 1, 1887, the Roanoke Land and Improvement Company owned certain lands in the city of Roanoke, and it also owned certain water works, easements, franchises, etc., and was engaged in the business of furnishing water to the inhabitants of that city. One of its water mains was in what was known as Holliday street, as is shown by a map filed in the records. On June 17, 1887, said Roanoke Land and Improvement Company conveyed to the Roanoke Water Company, a corporation, certain properties, water works, easements, powers and privileges, including "the perpetual right and easement to occupy with pipe lines, water mains, stand pipes, reservoirs and other fixtures and structures used in connection with said water works, the lands of said Roanoke Land and Improvement Company, as they are now occupied by the said pipe lines, water pipes, and other structures above hereby granted, and also the perpetual right of ingress and egress to, from and over the lands of the Roanoke Land and Improvement Company, for the purpose of repairing, renewals, examinations, and all other business pertaining to the occupying, working and maintaining the said pipe lines, water pipes and other structures above."

After the execution of this deed the particular lot with which we are concerned, by mesne conveyances, came to the defendant, the Roanoke Glass Company. Its deed and the intervening deeds recognized the easements which the water company took under its deed of June 17, 1887.

The plat made at the instance of the Roanoke Land and Improvement Company was vacated. The land was replatted and in the new plat Holliday street does not appear. In this the water company had no part, and it continued to maintain and operate a twelve-inch water main along what appeared as Holliday street in the old plat.

During April, 1925, the glass company began the erection of a building which extended across what had been known as Holliday street and over the water company's main. Soon thereafter the water company filed its bill asking that this work be enjoined. On May 9, 1925, a final order was entered in that cause. In it the glass company was perpetually enjoined "from in any manner erecting or maintaining any structure or do any other thing or act which shall unreasonably interfere with the right of way which the said Roanoke Water Works Company has on the property of the said Roanoke Glass Company * * *."

And the court went on further to decree: "It is further adjudged, ordered and decreed that nothing herein shall be construed as preventing the said Roanoke Glass Company, Incorporated, from maintaining or erecting any structures on said property over said right of way or easement so long as the said easement is not unreasonably interfered with and so long as the right of...