Roanoke Rapids Power Co. v. Roanoke Navigation & Water Power Co.

after stating the case: This action was brought by the plaintiff to recover damages for a nuisance which, it alleges, was committed by the defendant, and to enjoin the con*487tinuance of tbe same, wbicb tbe plaintiff also alleges bas caused special damage to it by reason of tbe diversion of tbe waters of tbe Roanoke River from tbe usual and natural flow, by and along tbe lands of tbe plaintiff, wbicb are situated below tbe intake or upper end of tbe defendant’s canal.

Tbe plaintiff bases its right to recover on tbe ground tbat as tbe owner of tbe land through wbicb tbe river would flow in its natural state, it is a lower riparian proprietor, and tbat tbe defendant bas no legal right to so obstruct tbe flow of tbe water in one of tbe prongs of tbe Roanoke River, known as Little River, as to diminish tbe volume of water wbicb would otherwise flow by and through plaintiff’s land, except to tbe extent tbat tbe defendant may have acquired the right, under tbe charter of its predecessor, tbe Roanoke Navigation Company, to use tbe water and for tbat purpose to obstruct tbe flow of said stream in a reasonable manner and consistently with tbe rights and privileges granted to it.

We think tbe decision of tbe case must depend upon tbe construction of tbe charters of tbe Roanoke Navigation Company, under wbicb tbe defendant claims, and all tbe acts of Assembly wbicb relate to tbe rights and privileges of tbat company and of its successor, tbe defendant, with regard to tbe use of tbe waters of tbe Roanoke River for tbe purposes specified in tbe said act.

Tbe act of 1812, cb. 848, provides only for improving tbe navigation of Roanoke River from tbe town of Halifax to tbe place where tbe Yirginia line intersects tbe same. It is not necessary tbat we should refer to tbe acts of 1815 and 1816, wbicb amended tbe act of 1812, because tbe provisions of those acts do not affect materially the decision of tbe question presented in this case. By tbe act of 1817 tbe Legislature of this State adopted an act wbicb was passed by tbe General Assembly of Yirginia in 1816, and wbicb provided for improving tbe navigation of tbe Roanoke River and its branches. It is provided in sections 4 and 5 of tbe latter act as follows:

“Whereas 'some of tbe places -through wbicb it may be necessary to conduct tbe said canals may be convenient for erecting mills, forges and other waterworks, and tbe person possessing such situations may desire to improve tbe same:

"Be it therefore enacted, Tbat tbe water, or any part conveyed through any canal cut or made by tbe said company, shall not be used for any purpose but navigation, unless tbe consent of tbe proprietors of the lands through wbicb tbe same shall be led be first bad; and the said president and directors, or a majority of them, are hereby empowered and directed, if it *488can be conveniently done, to answer both tbe purposes of navigation and the waterworks aforesaid, to enter into reasonable agreements with the proprietors of such situations, concerning the just proportion- of the expenses of making large canals or cuts capable of carrying such volume or volumes of water as may be sufficient for the purposes of navigation, and also for any such waterworks as aforesaid; but in no case whatever shall the owner or proprietor of such land, through which any canal may be cut as aforesaid, withdraw from any canal cut by the aforesaid company the water for the purpose of working any mill, forges or other waterworks whatever.”

The act of 1812 provided only for improving the navigation of the Roanoke River, and made no provision for the use of its waters for any other purpose. It is contended by the defendant that the act of 1817, the provision of which we have just quoted, enlarged the rights, privileges and franchises of the Roanoke Navigation Company so that, by the said act, it acquired not only the right to improve the navigation of the river, but also to use its waters for manufacturing and other purposes, and that by reason of the provisions of the said act it was not restricted in the quantity of water taken by it from the stream to so much as might be necessary only for the purpose of navigation, as it was by the act of 1812. In the exercise of the rights, privileges and franchises conferred by the said acts, the Roanoke Navigation Company constructed a canal and diverted the waters of the river into it by what is known in the case as a “wing dam,” which extended about 100 feet into the river. The navigation of the river through the said canal began in 1824 and continued until 1854, when it was abandoned, and it has not since been resumed. The plaintiff has extended the said wing dam entirely across Little River, and has thereby practically obstructed the flow of the stream, so that the plaintiff does not receive any benefit therefrom, but the use of the said river 'by it, as a riparian owner or proprietor, if it is entitled to be so considered, has been totally destroyed.

It is clear from the statement of facts which we have made, that the defendant, by the dissolution and sale of the franchise and property of the Roanoke Navigation Company, under the act of the Legislature of 1874-’75, and by virtue of the judicial proceedings authorized by the said act, did not, by the deed of the commissioner, which was made under a decree of the- court, acquire anything except “the rights, franchises, privileges, works and property of the Roanoke Navigation Company, between the towns of Gaston and Weldon and at Weldon.” The deed of the commissioner, Mr. Hill, does not convey anything else, nor *489does the act of 1885, ch. 57, which ratified the sale and conveyance of the commissioner, confer any other rights, privileges or franchises, or vest in the defendant any other property or effects than those which were acqriired by the deed of the commissioner.

The primary object, and, we may say, the chief purpose of the acts of 1812 and 1817 were to promote and improve the navigation of the Roanoke River by the construction of a canal, and the right to use the water of the canal for the other purposes mentioned in the act of 1817 was intended to be subsidiary or subordinate to the main purpose,. and not to permit the Roanoke Navigation Company to take more water from the river through its canal than should be necessary for improving the navigation of the stream. The Legislature did not contemplate that a greater quantity of water should be taken from the river than" would be necessary for the purpose of navigation, and within this prescribed limit the Navigation Company was authorized to contract with the proprietors of lands bordering on the cañal for the use of the water in the canal when required to supply motive power for milling, manufacturing or other industrial plants mentioned in the act. It would seem that the company placed this construction upon the act, because it so cut its canal with reference to the diversion of water from the river as to supply a sufficient quantity for the purpose of navigation only by erecting the wing dam, and while the canal was in use and operation for thirty years, it did not assert the right to obstruct the flow of the water to any greater extent than had been done in the beginning, nor was any attempt made to' do so by its successor until about the year 1897, when it built a rock breakwater, extending about one-third of the distance across Little River, and which was not further extended to the other bank of the river until some time in the year 1901.

In the construction of the legislative acts under which the defendant acquired its rights, privileges and franchises as the successor of the Roanoke Navigation Company, by virtue of the judicial sale to which we have referred, we can derive little or no aid from the authorities, ■ nor did counsel cite any. The original company constructed the wing dam under the power given to it by the act of 1812, as amended by the act of 1817, and deemed it sufficient for all purposes of navigation and so used it for a period of thirty years. It does not appear in this case that it was necessary to extend that dam to the opposite bank of the stream, for the purpose of supplying an* additional quantity of water for improving the navigation of the river, as contemplated by the said act. It is very clear, we' think, the Legislature, by the acts of 1812 and 1817, did not intend to *490permit any obstruction of tbe Roanoke River for tbe sole purpose of using its waters for manufacturing purposes. Tbe title and tbe language of tbe two acts forbid any sucb construction. Tbe right to establish manufacturing plants on tbe canal was intended to be incidental to tbe navigation of tbe river, and tbe latter could be obstructed only to tbe extent that it was necessary to improve its navigation. Tbe defendant contends that it has acquired tbe right to obstruct tbe river by virtue of tbe act of 1885, cb. 57; but we do not think that statute will bear any sucb construction. It is provided by section 6 of tbe act as follows: “This act shall not materially interfere with tbe legal or vested rights of any persons owning or operating mills in Northampton County, or prevent any person owning land on Roanoke River from operating or erecting any mill or other structure to be operated by water power, and using tbe water of said river for operating said mill or other structure: Provided, in so doing be shall not interfere with tbe legal or vested rights of any other person or corporation -in any unreasonable manner.” Tbe right given to tbe defendant by section 1 to erect buildings or make other improvements upon tbe canal for tbe purpose of manufacturing, and by section 1, to use tbe water of tbe Roanoke River, to be drawn through tbe canal, for navigation, manufacturing and other purposes, refers only, as tbe context of tbe act clearly shows, to the same rights, privileges and franchises that were given by tbe acts of 1812 and 1817 to tbe Roanoke Navigation Company. This construction of these two sections is entirely consistent with tbe language of section 6, which forbids tbe defendant from obstructing or interfering with tbe right of any lower riparian proprietor on the Roanoke River from erecting and operating any mill by tbe use of tbe water of tbe said river. And any other construction would nullify that section. Tbe plaintiff has complied with tbe proviso in that section, for it appears in this case that tbe water which passes through its canal is returned to tbe river before it reaches tbe land of any lower proprietor and, therefore, there has been no interference by it with tbe right of any other person or corporation.

Tbe next question presented in the case is whether tbe plaintiff is in a position to challenge tbe right of tbe defendant to obstruct tbe flow of water in tbe Roanoke River. ¥e do not think it is necessary for us to decide, in order to pass upon this question, whether or not tbe plaintiff is a riparian owner, in tbe sense that it has tbe right to use tbe water of tbe river for manufacturing purposes, though there are authorities for tbe contention of tbe plaintiff that it has sucb right and all tbe *491rights of a riparian owner, and especially that it bad “a right to the undisturbed flow of the river which passed along the whole frontage of its property in the manner in which it had formerly been accustomed to pass.” Land Co. v. Hotel Co., 132 N. C., 517; Gould on Waters, secs. 149 and 204; 1 Farnam on Waters, secs. 287-288 and 598-602; Yates v. Milwaukee, 10 Wall., 497; 29 Cyc., 333-335; Webster v. Harris, 59 L. R. A., 332; Lamprey v. State, 18 L. R. A., 670; Ceburn v. Ice Co., 51 L. R. A., 829.

But whether or not the plaintiff had the right to use the waters of the Eoanoke Eiver, as claimed by it, we think that the act of 1891, amending its charter, does expressly confer such right, and that the proviso in subsection 2 of section 2 does not restrict its right in this respect, as, if the defendant acquired only the property rights, privileges and franchises of the Eoanoke Navigation Company, the operations of the plaintiff do not interfere with its rights, if it had no authority to extend its dam across the river to the bank on the other side, but only the right to obstruct the river by the wing dam, which was built by its predecessor.

Nor do we think that the rights of the parties were changed or affected by their agreement, dated 28 May, 1897, or the correspondence between them, as it is evident from their express language that they did not intend to waive or surrender any of their rights, which 'are now in controversy in this case, but the said rights are distinctly reserved. The said agreement and correspondence were intended merely to provide a temporary arrangement between the parties, which was to last until the matters in dispute between them should be finally decided.

The defendant further contends that the plaintiff is concluded or estopped by the award which settled the controversy between George P. Phillips and the defendant, concerning the boundaries of the property of the defendant and its rights in the canal, the plaintiff having afterwards purchased the Phillips land. The fourth section of the award is as follows:

“The Eoanoke Navigation and Water Power Company has the right under its charter, without the consent of the said Phillips, to enlarge its canal as it may see fit upon its own land aforesaid, but not to condemn land for such purpose, and it has also, the right, without the consent of the said Phillips, to own, use and enjoy the use of the water of the Eoanoke Eiver to be drawn into or through said canal, as well for navigation as manufacturing and other purposes, and to rent or lease the same, and to erect and operate manufacturing establishments upon its own land, both that now owned or hereafter acquired *492■under its charter, or to rent or lease tbe same and to sell and alien any of its said property, all without the consent of the said George P. Phillips.”

The arbitrators intended by their award merely to fix the boundaries of the defendant’s property and to define its right to use the canal and the waters of the Roanoke River for navigation and manufacturing purposes, as conferred by the acts of 1812 and 1817, and to confine it within the limits prescribed by the said acts. This is apparent from the.striking similarity between the words employed by the arbitrators in their award and the language of the two acts to which we have referred. They did not intend that the defendant should possess or enjoy any other rights, privileges or franchises than were acquired by the deed of the commissioner, executed under the order of the court, and the act of .the Legislature of 1885 which ratified the same. The question as to the quantity of water which the defendant was entitled to draw from the Roanoke River without the consent of Phillips was not submitted to the arbitrators for their decision, nor involved in the controversy between the parties, so far as appears from the submission or the award. The question which the arbitrators decided, and which was submitted to them, was whether the defendant, as between it and Phillips, had the right to divert any water from the river into its canal.

We have read very carefully the case of Bass v. Navigation Co., 111 N. C., 439, upon which the defendant relies as deciding what rights it has in the waters of the Roanoke River by virtue of the statutes and proceedings to which we have referred. We find only two questions decided in that case, and they are: (1) Whether, by the dissolution of the corporation known as the Roanoke Navigation Company the property which it acquired by purchase or otherwise reverted to the original owners; and (2) whether the parol license to construct a bridge over the canal, which was formerly given by the Roanoke Navigation Company, was revocable. The Court decided that there was no reverter and that the license was revocable. We do not see how the questions now under consideration in this action were presented in' that case, and the language of the Court excludes the idea that they were considered or decided. We are, therefore, of the opinion that neither the award iii the Phillips case nor the decision in the Bass case adjudicated the-rights of the parties which are involved in this .suit, nor do they render applicable to this ease the rule of stare decisis, as laid down in the case of Hill v. R. R., 143 N. C., 539, as they establish no rule of property, pertinent to the facts of this case, which require us to adhere to them as decisive of the questions we now *493have under consideration. If the arbitrators in the Phillips case, or the Court in the Bass case, intended to pass upon the question as to whether the defendant had the right to extend its dam across Little Eiver so as to completely obstruct the stream and thereby to prevent the use of the waters of the river by the lower riparian proprietors, they would have made some reference to the right of the defendant so to do, in plain language. Instead of doing so, it was assumed that the defendant possessed only the rights and privileges, with reference to the river and the diversion of its waters, which it acquired from the Boanoke Navigation Company, and which had been conferred upon the latter by its charter and the amendments thereof.

It appears in the case agreed that the defendant has acquired, by prescription if not by purchase at the judicial sale, the right to obstruct the flow of Boanoke Biver by continuing to maintain Avhat is known in the case as the “wing dam,” which was originally erected by its predecessor, but it has no right -to impede the flow of the stream beyond the end of said dam, that is to say, by any extension of the same, and to the extent that it has done so it should have been enjoined by the court below, as there has been no sufficient delay by the plaintiff in asserting its right to the removal of the obstruction to constitute an acquiescence on its part or an estoppel against it. Pugh v. Wheeler, 19 N. C., 50; Emry v. R. R., 102 N. C., 232; Greer v. Water Co., 127 N. C., 349. The plaintiff has acquired no easement, as against the lower proprietors on the river, to obstruct the same. Griffin v. Foster, 53 N. C., 331.

The question as to the amount of damages the plaintiff may be entitled to recover is not now before us upon the case agreed. Our conclusion is that the court erred in refusing the injunction, to the extent above indicated, and the case is, therefore, remanded to the court below, with instructions to issue an in- ' junction against the defendant, restraining it from maintaining the dam across Little Biver, except that part of the said dam which was originally erected by the Boanoke Navigation Company, and which is known^in the case as the “wing dam.” The amount of damages which the plaintiff is entitled to recover will be determined hereafter, according to the stipulation contained in the ease agreed.

Error.