The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1881-09-01

Judge George L. Christian yesterday ren.
dered the following opinion, giving the
City Council until p. NJ. Monday to make
terms with the Richmond aud Allegheny
Railroad Company for the use Of the canal
water, or such part thereof as may be ne
cessAry; aud II an agreement Is not reached
by that hour, then an Injunction will issue
again 50 the Mayor and The city:
The Richmond and AHeghany Railroad
Company Us. The Guy Of Richmond. de-,
on an Application for an Injunction
This application comes up for considcra-
tion on the bill, answers, and exhibits filed
herewith.
| The bill alleges that the plaintiff is incor-
poraled under the laws Of Virginia that
under aud by virtue Of its charter II has be-
come the owner In fee OF all the property,
rights, and franchises OF the James River and
Kanswha Company, and has imposed upon II
certain obligations and duties which were Inn
! posed by law upon said James River and Ka-
nawba Company that amongst the proper
| ~ thus acquired Is the canal, formerly used
| for navigation and for furnishing water
power for various manufacturing establish
ments, mills, &c. that by IFS charter the
| plaintiff il "required 10 maintain toe water.
supply in the canal from BOsher's dam
through the city OF Richmond, and TO re-
spect ali existing contracts for furnishing
water TO the lessees Of its water.power;
that it has endeayored to comply with the
requirements OF its charter, but Is now
prevented from doing so by the action
either OF the city OF Richmond or certain
irresponsible parties pretending to act on
behalf OF said city y; that 1t has been pre-
vented from
TURNING TIE WATER IL ITs CANAL
at Bosher's dam by an Injunction obtained
by the city: that, Notwithstanding this, the
plaintiff has been enabled 10 keep the 1ow
OF water in the first level Of the canal, but
In a reduced quantity, and thus partially to
keep up the supply TO the manufacturers.
as compelled by its charter and contracts
with them; that on the 2tth OF August the
defendant, W. e. CarringtOD, Mayor OF the
! CITY OF Richmond, went to a waste gate IN
the banks OF the plaintiffs canal anu by force
turned the wster from said canal into tbe
river. the "effect OF which is totally TO
deprive the plaintiff Of the ability 10 dis
charge the obligations Of It's charter and
contracts aforesaid"; that it is pOWerless
10 resist the force used by the said deiend-
ants without committing serious breach
OF the peace; that If the act OF the defend.
ants gS unchecked it will "entail irrepars-
bic damages, not only on the complainant,
but upon sll
THE MILLS, FACTORIES, &C.,
| drawing their Wster-power from said cansl,
and upon the hundreds OF their employees
and their families, who are dependent upon
this supply Of water for their employment,
! and upon that employment for brea6"; and
il then prays for an injunction TO prohibit
the defendants from thus interfering with
their said properly.
The answers OF the defendants admit the
act charged to have been committed by the
defendant CarriDgton, Mayor, &C., on The
oath Of August, 1881, but allege that 1t
had the right 10 commit it
First. Because the plaintiff took the
property Of the james River and hsnaWhs
Company subject 10 certain rights reserved
In contract between said company and the
city, OF March 3, 1880.
Secondly. Because, under the act OF AS
sembly authorizing the sale by the James
River and Ksnswba Company OF its proper
~, &c., to the plaintiff, "the exiting uisbment
OF the only franchise, privilege, and duty
for which the James River and kanawha
|
nisbIue OF canal transportation y was dis
tInetly contemplated. They deny that the
city has illegally restrained the turning In
OF the water at
BOsHER's DAN,
but allege that il was done in accordance
with the terms Of the said contract OF March
2, 1880. The answer OF the city alleges that
the act OF the Mayor was necessary and pro
per on account OF the pressing necessities
10 its citizens for water for consumption,
&C., which it was IFS paramount duty TO
supply; that as the riparian owner OF the
ground below where the water was turned
from the canal into the river under certain
deeds and contracts from j. 3. Hsryie, &c,
dated i'm April, 1910, and an act OF Assem-
by passed March o, 1640. confirming to the
CITY the rights before acquired by HafVie'
il had a superior right to this water, which
had been illegally diverted from the river
bv the action OF the plaintiff and its grantors,
by the erection, strengthening, &c, Of
GRANTS DAN AT The THREE.HILE LOCKS,
and it denies that if any damages are oc'
casioned by the action OF the Mayor, such
damages cannot be recovered in court OF
law. The answer OF the Mayor adopts the
allegations Of the answer OF The city, and
attempts TO Justify hlS action by reason OF
the pressing necessities for water OF the
citizens of the city, and in addition to this
alleges that the city has paid large con-
siderstion To the plaintiff for this water
simply, as will be seen by reference 10 sara
contract OF March 8. 1880.
| Roth answers admit, which is necessary
| consequence, that the water'supply IN tDe
canal has been diminished by the act COM
plaiped OF, but deny that the plaintlh has
Sustained eny such great damages as are
alleged In the bill.
| These are substantially the averments OF
the bill and answers, and on which am 10
consider the
QUESTIONS INVOLVED
in tbi, controversy, which are: First, Is
the water.power in The first level OF the ca
nal. now used for driving machinery. &c,
the property of the plaintiff And second
Iv. If so. hiss il been illegally used or tres
nassed upon by the defendants, and 10 such
msnuer AZ will warrant court OF equity IN
restraining further interference Herewith
by the extraordinary remedy OF lnlunc-
tion? / -.
That a court OF equity will interpose by
Injunction TO prevent or stop q trespass
where the title TO The property trespassed
on Is clearly in the plaintiff, where the dsn-
ages are likely TO be irreparable, or TO pre-
vent a multiplicity OF suits, will scarcely
now be denied. l High on lnIunctions,
secs. 697-7OO; Barton's Chy. Pr, 4S0, ana
cases cited.
Is the title to the property, then, In this
case, c!esrly ia the PLAINTIFF
Whist no one can acquire
PROPERTY IA qHE MERE WATER ITSELF
of running stream, either natural or arli-