Town of Vinton v. City of Roanoke

• Decision Date: 15 March 1954
• Docket Number: No. 4169,4169
• Citation: Town of Vinton v. City of Roanoke, 80 S.E.2d 608, 195 Va. 881 (1954)
• Court: Virginia Supreme Court
• Parties: TOWN OF VINTON v. CITY OF ROANOKE. Record

Page 608

80 S.E.2d 608

195 Va. 881

TOWN OF VINTON v. CITY OF ROANOKE.

Record No. 4169.

Supreme Court of Appeals of Virginia

March 15, 1954.

Hazlegrove, Shackelford & Carr and Walter W. Wood, for the appellant.

Ran G. Whittle and James N. Kincanon, for the appellee.

JUDGE: SPRATLEY

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

This appeal brings under review a decree construing the terms of a written instrument and adjudicating the rights and obligations of the City of Roanoke and the Town of Vinton thereunder. The instrument reads as follows:

'This Deed, made this 16th day of February, 1914, between the Vinton-Roanoke Water Company, Incorporated, of the first part, and the Town of Vinton, of the second part;

'WITNESSETH: that whereas, by a certain contract made on the 22nd day of January, 1914, between the aforesaid first and second parties hereto, the said first party did sell to the said second party the portion of the Water Works then installed within said town and the immediate suburbs, as therein and hereinafter set forth, in consideration of the amount found to be due upon specific measurements, notations and inventory thereof, based upon the schedule of prices fixed and set forth in said contract, and

'WHEREAS, said measurements, notations and inventory have been duly made, and the total amount due therefor according to said schedule of prices ascertained -- all of which is approved and accepted by the respective parties hereto, and

'WHEREAS, it appears, that the title to said property has been cleared of all liens and objections and other provisions of said contract complied with;

'NOW THEREFORE THIS DEED WITNESSETH: that in pursuance of said contract, and in consideration of the premises, and of the sum of ($18707.10) eighteen thousand seven hundred and seven and 10/100 dollars (found to be due upon said measurements and inventory) in hand paid by the said second party to the said first party at and before the sealing and delivery of these presents, the receipt whereof is here duly acknowledged by the said first party, the said Vinton-Roanoke Water Company doth hereby grant, sell and convey unto the said Town of Vinton, with covenants of general warranty of title, all and singular its rights, title, privileges, franchise, water pipes, pipe lines, connections, meters, fire hydrants and other accessories and supplies complete, at this time installed and used in the operation and connection with the water plant, within the corporate limits of said town and along the Blue Ridge Road; said town being situated in the County of Roanoke, and State of Virginia -- except the ten (10) inch main running through said town as now installed, and the ten (10) inch main from the stand pipe to said main, and the stand pipe or stand on the hill, also the eight (8) inch main from Tinker Creek and the Street Railway Bridge and extending along the south side thereof to Midway Crossing; and also the eight (8) inch main on the property of the said first party, known as the 'Smith Spring' and the pump.

'Said first party also reserves the right to lay its Water Mains along the Streets and Avenues in and through said town for the purpose of improving its plant, and of furnishing water to the Norfolk & Western Railway Company, under contract now in operation with said Railway Company, which is not here sold to said town but is expressly reserved by first party; but all other contracts and provisions for the furnishing and supply of water through pipes and accessories as herein above sold to said second party, hereby passes to said second party, said first party only retaining the right to supply the aforesaid Railway Company under its contract therewith as above set forth.

'And said first party also reserves the right to furnish water to such consumers within said town as are at this time connected with first party but who are inaccessible to said second party, and shall receive the rents therefor, until said second party shall become able to take over same, at which time, upon the written demand of said second party, first party will turn over to said second party the pipes and accessories used in such supplies, (Except such as are above expressly reserved) upon said second party paying to said first party the amount found to be due by measurements thereof at the same prices fixed in said contract for like pipes, meters, connections, etc. -- said measurements thereof and prices and amounts therefor not being included herein.

'The said first party hereby covenants that it will furnish, through its mains, to said town, all water necessary to supply any and all demands, through the pipes and connections herein purchased or that said second party may hereafter install, at the rate of five (5) cents for each one thousand (1000) gallons, as long as said second party shall require the same to be furnished, to be paid monthly --

'Provided that the minimum charge therefor shall be thirty ($30.00) dollars, payable at the expiration of each month during the period same shall be supplied as aforesaid, and in case of default after ten days, said first party reserves the right to cut said water supply off and to with hold the said supply until all arrears have been paid, and provided further, that in case said second party shall decide to discontinue the use of said water as aforesaid, said second party shall give said first party six months notice, in writing, prior to the termination of the use thereof of its intention to abandon same, and that said second party will be required to pay for said water, under this provision, for six months after said notice is given, when this provision shall be null and void as to furnishing water.

'Said first party further covenants that it will furnish its own meter through which said town is to be supplied from the eight (8) inch main, and if second party is to be supplied from any other point of first parties mains, said second party will have to furnish such extra water as may be needed in such additional supply.

'And so far as it may be necessary for said second party to operate the lines and fixtures herein purchased, said first party covenants to relinquish and hereby transfers its franchise thereto to the use and benefit of said second party, and that hereafter neither the said first party, his assigns nor alienees shall have the right to install or operate any lines or water supplies that will interfere with said second party's uses, privileges and supplies within the corporate limits of said town, except as above provided and reserved.

'In Witness whereof, the Vinton-Roanoke Water Company, have hereby caused its name to be signed hereto and acknowledgement thereof to be made by C. Markley, its President, and its Corporate seal attached, and the same to be duly attested by W. L. Andrews, its Secretary, who is also authorized to acknowledge same;

'VINTON-ROANOKE WATER COMPANY

By C. Markley, President.

Attest:

W. L. Andrews, Secretary.'

The City of Roanoke will be hereinafter sometimes referred to as the City, and the Town of Vinton as the Town.

The City by conveyance and condemnation is a successor in title to the properties, rights and franchises of the Vinton-Roanoke Water Company, a public service corporation.

The controlling issue relates principally to the meaning and effect of the covenant to furnish water to the Town at the rate of five cents per one thousand gallons, 'as long as' the Town shall require the same to be furnished.

The City brought this proceeding on November 30, 1948, for a declaratory judgment asking for an adjudication that it was not bound by the covenant either by contract or law. A demurrer to the original motion was sustained, with leave to amend. An amended motion was filed August 11, 1950. A demurrer thereto was overruled and the proceeding transferred to the equity side of the court.

The Town filed its answer October 6, 1951, in which it contended that the covenant to furnish water to it was not an independent covenant, but the principal, if not the sole consideration for which 'it paid the purchase price of the property' described in the deed; and was therefore 'a covenant running with the land and sine qua non of the deed.' It further averred that the instrument 'contained no requirements or specifications as to the source of the water to be furnished it thereunder, and that the defendant has not undertaken and will not undertake the control of the source from which water is furnished it, provided such water is clean and wholesome and meets the required health standards.' In its briefs and argument it contends that as a real covenant, it constituted 'a servitude on Falling Creek and the ten-inch main for the benefit of the distribution system in Vinton.'

The cause came on to be heard upon the pleadings and the evidence taken ore tenus.

On October 27, 1952, the chancellor rendered a written opinion, holding that the Town did not acquire by the deed of February 16, 1914, the perpetual right to receive or obtain water from the Falling Creek water source, nor did it acquire any title or interest in or to that water source; that the covenant to furnish water to the Town did not run with the land, but was a personal covenant only and never binding upon any specific property of the Vinton-Roanoke Water Company or its successors in title; that the agreement being for an indefinite period of duration and lacking mutuality, it was terminable at any time by either party, or their successors, upon reasonable notice; that the Vinton-Roanoke Water Company, a public service corporation, could not by contract bind itself to furnish water without the approval of the State Corporation Commission; that the City of Roanoke, having acquired title to the water system by condemnation, became obligated only to furnish Vinton with water from its surplus water supply (City of South Norfolk v. City of Norfolk, 190 Va. 591, 58 S.E. (2d) 32);...