Virginian Ry. Co. v. Hood

• Decision Date: 17 January 1929
• Citation: 152 Va. 254
• Parties: VIRGINIAN RAILWAY COMPANY v. J. T. HOOD.
• Court: Virginia Supreme Court

Page 254

152 Va. 254

VIRGINIAN RAILWAY COMPANY v. J. T. HOOD.

Supreme Court of Virginia, Richmond.

January 17, 1929.

Absent, Chichester, J.

1. WATERS AND WATERCOURSES — Flooding Lands — Water Level of River Raised a Few Inches Above a Drain — Case at Bar. — Defendant railroad company contemplating the erection of a dam caused surveys to be made, from which it appeared that the lower portion of plaintiff's land would probably be flooded by the erection of the dam. Defendant approached plaintiff, explained the situation to him, and after some negotiations purchased the lower end of plaintiff's tract of land. After the erection of the dam the water rose and covered the mouth of a blind ditch, to a depth of a few inches, which carried off the water from a spring and drained some nearby marsh land of plaintiff. The appellate court considered that it was more reasonable to assume that if this drain ceased to function it had been clogged by extraneous matter than that its flow had been checked by this slight raise in the water level.

2. JUDICIAL NOTICE — Clogging of Drains and Sewers. — It is a matter of common knowledge that blind ditches are sometimes clogged by the washing in of earth and trash.

3. INTERPRETATION AND CONSTRUCTION — General Principles of Construction. — Instruments plain upon their face are to be construed as written, and the language used is to be taken in its ordinary significance unless it appears from the context that it was not so intended. They are to be construed as a whole. Their provisions are to be harmonized when possible, effect is to be given to every stipulation when it can reasonably be done, while the condition of the parties and the circumstances under which they were executed should be considered.

4. DEEDS — Construction — Doubtful Cases — Most Strongly Against Grantor. — In doubtful cases, in the construction of deeds, the grantors bear the burden.

5. WATERS AND WATERCOURSES — Release of Damages — Construction of Release — Application to Land Retained — Case at Bar. — Defendant railroad, contemplating the erection of a dam, purchased from plaintiff the lower portion of his tract of land and plaintiff in his deed released all damages "resulting from the flooding of the said land hereby conveyed." As it would be meaningless and futile to assume that it was necessary to covenant agaisnt injury to the land bought, and since damage to the land purchased could not have been in the minds of the parties, damage to some other land must have been, and there was no other land in which any of them had any interest at all except that portion of plaintiff's tract retained by him. Any other construction would leave the release destitute of purpose.

6. WATERS AND WATERCOURSES — Flooding Lands — General Releases. — General releases by riparian owners of damages resulting from the flooding of their lands are upheld in Virginia so long as there is no negligence by the releasee, and when the things done by the releasee might naturally have been expected at the time the contract was made.

7. WATERS AND WATERCOURSES — Flooding Lands — Release of Damages — Construction of Release. — Under a general release by a riparian owner of damages from the flooding of his land, the damage must not be unreasonable, it must not be negligently inflicted and it must be within the field which the contract fairly construed was intended to cover.

8. WATERS AND WATERCOURSES — Flooding Lands — Release of Damages — Case at Bar. — Defendant railroad company contemplating the erection of a dam caused surveys to be made, from which it appeared that the lower portion of plaintiff's land would probably be flooded by the erection of the dam. Defendant approached plaintiff, explained the situation to him, and after some negotiations purchased the lower end of plaintiff's tract of land. In plaintiff's deed to defendant there was a covenant to the effect that it was "understood that the consideration above named shall be in full satisfaction of all damages resulting from the flooding of the said land hereby conveyed."

Held: That this language relieved the railroad company from damages to the remainder of plaintiff's land incident to such proper and natural use of its own land as must have been contemplated when the deed was executed.

Error to a judgment of the Circuit Court of Nottoway county, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Williams, Loyall & Taylor, N. S. Turnbull, Jr., and Martin & Wingfield, for the plaintiff in error.

George E. Allen and P. G. Jefferson, for the defendant in error.

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

This is an action by motion to recover damages occasioned by the flooding of certain lands in Nottoway county. Designating the parties as they were designated in the trial court, the defendant, Virginian Railway Company, in 1922, undertook the construction of a dam in Nottoway river to impound water for its engines. Before undertaking this work, surveys indicated that a part of the lower portion of plaintiff's land would probably be flooded, although the dam which it proposed to build was to be placed some distance below. Plaintiff's holding consisted of one tract of about 502.5 acres lying along the north shore of this river, and in the main above what is known in the record as Barton's bridge. Before the dam was built the railway company approached Mr. Hood, explained to him the character of the work which it proposed to undertake and the purposes which it had in view, all of which was stated in detail and fully understood. After some negotiations, it did purchase, for $1,396.50, the lower end of the 502.5-acre tract, in amount 16.63 acres. This purchase lay just below the bridge. In the deed therefor, of date October 2, 1922, is this convenant: "It is intended hereby that the above conveyance shall include the Nottoway river bed and channel, and all water and water rights within the boundaries above set out; and it is understood that the consideration above named shall be in full satisfaction of all damages resulting from the flooding of the said land hereby conveyed."

After the dam was built the level of the water was raised, exactly to what extent it is not easy to say. From the plaintiff's testimony, it would appear that the flood at Barton's bridge was about two feet, while Mr. Charlton, an engineer who had made the necessary surveys, puts the raise at about a foot and a half. It is fair to assume that it was somewhere within these limits.

To carry off water from a spring and to drain some nearby marsh land, plaintiff had built a blind ditch, or subsurface drain. Originally it came out of the river bank at a point six or eight inches above the water level as it stood before the dam was built, and seventy-five or 100 yards above the bridge.

To what extent has it been submeged? Counsel for plaintiff, in his cross-examination of Mr. Gee, has thus stated his view of what the evidence shows:

"Mr. Gee, the testimony shows that this blind ditch is made by using two timbers and then putting a board on top of those timbers, and then a railroad tie on top of those boards, which places the tie on top of the ditch, and then the water stands half of the...