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

McCreddyS ,GSe, II Grdltdn.
AS EARLY AS 1884
the charter OF the Old "James River Com.
paDy" was granted by the Legislature.
giving II the right to build this canal, aud
to use the same not only for navigation but
for erecting mills, forges, and other water
works." and in the act Of March 10. 1882,
incorporating the James River and kana-
wha Company, its successor, and the grantor
OF the plaintiff. this special authority Is
Riyen In these words "To let TO farm
or lease sites for mills and other
machinery and water for their use."
Under the act of February 27, 1878,
witch authorized the sale Of the "pro-
perty. rights, and franchises" OF the james
River and Ksnawhs Company TO the plain.
tif, and under which they were sold and
conveyed, II is expressly provided that 81
shall be the duty Of The Richmond and Ails-
0harn Rdiirodd Company 10 maintain the
present todter supply Of the docks. and Of
the canal along its line 6ettceen BoshsTs
dam and tidendter," aud that "h
may charge rents for the use OF the water
derived from It's works rs now provided by
law" Thus II will be seen that under
REPEATED ACTS or THE GENERAL ASSEMBLY
OF virgins, running through a period OF
nearly century, the right OF the plaintiff
and those under which II claims 10 divert
thjs water from the river 10 the canal and
use Il for the purpos Q for which II l. now
used, is not only recognized, but under
some OF the acts even required. Tbe eK-
istepce OF the canal In its present position
is recognized In terms Ia the deeds under
which the city claims It's water works,
from the Haryies Nav, IN the very con.
tract OF March 3, 1880, between the city and
the James River aud Kanawha Company,
80 much relied on in the answers, IL Is said
"tbe regulation aud supply OF water and
the general police OF this part OF The canal
first leveD shall remain under the diree-
tion and control OF the James River and
Kanawhs Company, provided that such
control shall not at sny time diminish the
supply OF water TO which the city Is entl-
lied under the next ciause OF this asree'
ment," tchich ne1t clause refers entirely TO
the voter proposed TO be used IN me neu
purnp.isorks in process Of erection, 10 tnhich
the uhote Of This agreement distinctly re-
fers. in no ,cdy ctes.ing The questions noU
under consideration, and it is hard to con-
eaiye for what purposes II was referred 10
in the answers to sustain the positions
taken by them.
1t must be conceded that the gates In the
canal banks are
TIE PROPERTY OF THE PLAINTIFF,
and I think it has as clear right to the
usIfyuct of the water in the canal. for the
our poses for which they are being devoted,
as they have to the gates aud canal 6anEs.
Has this property been 30 interiered with
AZ to warrant The interposlti0n OF court oil
equity by lniuncioni
Both by the Federal and State Consti-
tutious It is forbidden that private pro-
perty shall be taken for public uses
without lust compensation" and whilst
the right OF eminent domain may be
conferred upon a municipal government
by The Legislature, yet it can only be ex-
ercIsed in the manner and for the puS-
noses for uhich il pds authorized. 2 DiL
| Ion on Nun. Corpn's, sections 5S3, 800.
The act complained Of by the plaintiff, IL IS
conceded, was done snly by or under the
directions snd authority OF the defendant
Csrringtou, Ms the Mayor OF the city.
Was il authorized by the charter or any
ordinance OF this city passed in pursuance
thereof?
alt is," says Dillon, ga general and un-
disputed proposition OF Law that munic'-
pal corporation possesses and can e1frctse
| the foaoutnq pOUerS and no others: First.
Those granted in cypress cords. Second.
| Those necessarily or fairly implied in or In
cident 10 the powers expressly granted.
Third. Those essential TO the declared OBJ
iects and purposes Of the powers granted,
not simply convenient, but Indispensable"
| Dillon on Nun. Corps, section 80. ANA
that
THE DUTIES OF THE MAYOR
OF q city depend entirely upon the proyi-
sions OF the charter or constituent act OF
the CORPORATION and valid bylaws passed IN
pur.uance thereOi."-ld., section 20S, and
cases cited. Under the charter and ordi-
nsnces of this city can find no sembIance
OF authority for the act done by the Mayor
TO the property OF the plsntid. On The con-
trary. the charter expressly provides that
the CttV Council shall have "the control
and management OF the hscal aud munich
nal affairs Of the city," That they shall
nave the power, aud it shall be their
duty, among other things, to establish
or enlarge trdter-Works and gss-works
within or without the limits OF the said
CITY, contract and agree with the owners OF
any land for the use or purchase Thereon, or
NAV have the same condemned for the loca-
uon, extension or enlargement Of their said
works, the pipes connected herewith, or
any Of the fixtures or appurtenances
thereof. They shall haze The pOtoer TO pro-
tecl from injury, bV adequate penalties. the
said UOrJLs, pipes, fixtures, and land or
0nuthinq connected MereUitb t1ithin or loIth-
out the limits Of said city" &c.-Cnsrter,
section l9, clause V.
II being
TIE DUTY OF THE COUNCIL
then 10 proyide water for the city, il has
never attempted and could not impose tnat
duty upon the Mayor, and has nowhere en-
deayored 10 sanction or assume responsible
| iiy for the act performed by him and now
complained of; and since the vet was not In
the legitimate exercise Of some duty which
yas devolved on tue Mayor by the direction
or authority Of the charter or the Council.
the city is not responsible for the act, aud
the damages which the plaintiff may sustain
NAV be irrepVraole. Indeed, it is alleged
in the bill. and not denied in the answers.
that the parties acting for ths city are " ir-
responsihle,v which affords distinct ground
for interference by injunction. Il High on
Injunetions. sec. no
Much has been said In the argument 81
this question about the paramount duty OF
the city to provide
WATER FOR IT'S PLNlsaING CITIZENS,
for The protection OF their lives and pro.
perty: no Que could feel the force OF
that argument more sensibly than this Court
does. and il It had the legal right and Its
po6ers were invoked for that purpose, i
would strain them to the utmost 10 AFFORD
the relief so much desired. But the answer
to this whole line OF argument is simply this
The right OF the city to furnish water to It's
citizens Is one that 1t has voluntarily as
sumed, for exercising which II charges
rents (sometimes even when water Is not
fnrnjsbed). iust as the railroad company