Town. Of Gordonsville v. Zinn

• Decision Date: 17 March 1921
• Citation: 106 S.E. 508
• Parties: TOWN. OF GORDONSVILLE. v. ZINN.
• Court: Virginia Supreme Court

106 S.E. 508

TOWN. OF GORDONSVILLE.

v.ZINN.

Supreme Court of Appeals of Virginia.

March 17, 1921.

Appeal from Circuit Court, Orange County.

Suit by the Town of Gordonsville against Mrs. Flora M. Zinn. From a decree dismissing the bill, the complainant appeals. Reversed and remanded.

This is a suit for injunction, instituted by the appellant, the town of Gordonsville, a municipal corporation, against the appellee, Mrs. Flora M. Zinn, the object of which is to perpetually enjoin the latter from with drawing any water whatsoever from the flow of a small nonnavigable stream from a locality on such stream which is above the reservoirs of the town located on the stream, from which reservoirs the town draws its municipal water supply.

There was a demurrer to the bill by the appellee. The court below sustained the demurrer and dismissed the bill; and the questions presented for decision on the appeal arise on the demurrer to the bill.

The material issues and facts, as they appear from the allegations of the bill, are, in substance, as follows:

The town claims, as a lower riparian landowner, to be entitled (under a certain conveyance in 1SS9 from one B. F. Weaver; also under a certain contract in writing, in 1889, with one Alexander Cameron, the adjacent upstream owner of the land on both sides of the stream, including the spring, which is the source of such stream; and by prescription) to all of the water which flows from such spring and would in its natural course flow in said stream from the said Cameron land through the reservoirs of the town, except so much of the water as the said Cameron in his lifetime, and those claiming under him at the time 'of the institution of this suit, were entitled to use as upper riparian landowners with respect to the said stream and spring.

Prior to 1889, and to the construction of its reservoirs by the town, the said Weaver owned a large tract of land on both sides of said stream adjacent to the said Cameron land and immediately below it on such stream. In that year (1889) Weaver from his said larger tract conveyed to the town the parcel of land owned by it located as aforesaid on and so as to embrace both sides of said stream, consisting of one acre, in shape a parallelogram, 249 feet in length along the Cameron line and 175 feet in width. This deed also conveyed to the town "all the water and water rights and * * *. all the privileges appurtenant to said lot of land." This deed was duly recorded in 1889.

The conveyance just mentioned left still belonging to Weaver a considerable tract of land which lay to the south of the Cameron land and the parcel acquired by the town as just stated; the remaining Weaver land being bounded on the west by a portion of the eastern boundary line of the Cameron land for some distance, thence by northern, eastern, and southern boundary lines of the town lot, and thence by the eastern boundary line of the Cameron land again.

In June, 1889, the aforesaid contract in writing between the town and the said Cameron was entered into, which, omitting the formal parts, is as follows:

"Whereas the said town of Gordonsville is desirous of constructing suitable works andreservoirs for the purpose of securing an abundant supply of pure water, and for this purpose hath purchased of B. P. Weaver an acre of land bounded on the west side of the lands of the said Cameron near his spring and reservoir the water from which spring in its natural flow passes through the said acre of land; and

"Whereas, the said town is about to construct upon the said acre of land a suitable reservoir for the purpose of supplying water, and in order that said water may at all times be pure and clear, it is necessary that some changes and improvements should be made in the reservoir of the said Cameron, which lies between his spring and the reservoir intended to be built by the said town; and

"Whereas, the said Cameron is willing that the said town may make such changes and improvements in his reservoir as shall be necessary to secure the water in a clear and pure condition, provided his legal right to use and control the water from his spring and reservoir is not in any degree lessened:

"Now, therefore, and in consideration of the premises and the further consideration of $1 in hand paid to the said Cameron by the said town, he, the said Cameron, doth give and grant unto the said town of Gordonsville the right to enter upon his land immediately in the vicinity of the said spring and reservoir on his farm near Gordonsville, in the county of Orange, and to make such changes and improvements in the said reservoir, by clearing it up, lining, paving, and coating the same and by elevating the water not higher than the present elevation of the discharge pipe from the spring into the reservoir and to inclose the same with a suitable and sightly fence so as to prevent all persons and animals having access to said spring and reservoir except the said Cameron, his representatives, servants, agents, and assigns, and the proper officers of the said town of Gordonsville.

"But it is expressly agreed that neither party shall wash or bathe or permit to be washed or bathed human bodies or other things in said spring and reservoir, which would tend to pollute the waters therein.

"The rights herein granted the said town are to continue as long as the waterworks are kept in proper condition and the water needed for supplying said town as aforesaid.

"And the said town on its part covenants to and with the said Cameron that it will make improvements aforesaid, and in making them it will do no injury to his spring, reservoir, and lands adjacent thereto. That all surplus dirt taken from his reservoir not utilized in their works shall be removed and deposited in some place not injurious to the lands and grass of the said Cameron.

"That in the improvements of his reservoir it will put in at proper place or places one or more discharge pipes for the use of said Cameron and of sufficient size to afford to said Cameron the use of the water from said spring to the same extent that he is entitled under the law to said water at this time. It being the intention of the parties to this deed that no restraints nor limitations shall by this deed be placed upon the legal rights of the said Cameron, his representatives, and assigns as they now exist, to and over the water and the use thereof for any and all purposes for which he may now lawfully use the same, and to secure to said town the right to cleanse and purify and keep clean and pure the water that will naturally flow into its reservoir.

"The exclusive use and control of the said discharge pipes shall at all times be and remain in said Cameron, his representatives, and assigns, so as to afford to them the right to use the water to the same extent as now exists. The failure of the town of Gordonsville to make in a reasonable time the improvements herein mentioned and to construct and keep in proper repair its waterworks shall operate as a revocation of the rights of entry herein granted by the said Cameron to the said town of Gordonsville."

Under the Weaver deed aforesaid, and under and in accordance in all respects with said contract between it and the said Cameron, the town (according to the allegations of the bill), "continuously from the 25th day of June, 18S9, and before, " collected in reservoirs, on its said one-acre parcel of land, all the water which flowed from said Cameron spring, except such as was used on the said Cameron land in supplying the dwelling house and outbuildings of the said Cameron located on said Cameron land with the water there used, drawn from the discharge pipe places provided by the town in accordance with said contract, and the water collected in said reservoirs as aforesaid has been taken by the town and conducted in pipes from said reservoirs for some distance to the town of Gordonsville, and thus diverted from the natural channel of the stream, and has been used for municipal purposes and in supplying the inhabitants of the town with water. That this use of such water by the town has been a necessary use, the water thus taken by the town being all needed for its aforesaid purposes, and that during such period of approximately 30 years before the institution of this suit the said diversion by the town of such quantity of water, collected as aforesaid in its reservoirs, "has been absolute and unrestricted, * * * without restriction, hindrance, or objection, under a valid claim of right, without interruption (and) adversely"; and that "in dry seasons there has been no overflow from the reservoirs of the town, the needs of the town having required every drop of water available from said spring."

The following also appears from the allegations of the bill:

Subsequent to the occurrences above narrated the said Alexander Cameron acquired title to 58 acres of the said residue of the Weaver land and added it to his holding of the original Cameron land aforesaid. This 58 acres lay adjacent to the original Cameron land, extending in a southwesterly direction from the southern end of the town lot, along the eastern line of the original Cameron land in that locality. This 58 acres alsoextended in an easterly direction along the whole of the southern end of the town lot and thence along its eastern side to the said stream and to the east of such lot, so an to constitute a portion, at least, of such 58-ucre parcel, lower riparian land with respect to the town lot and said stream.

The said Cameron did not in his lifetime make any use on said 58-acre parcel of land, for any purpose, of any water taken from said stream above the town lot.

The said Cameron died in 1015, and in 1916, in the partition of his lands among his heirs, the said 58-acre parcel of land became the property of Mrs. Zinn, one of his heirs, and the said original Cameron land became the property of other heirs of said Cameron.

Thereafter the appellee built a handsome residence...