The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1903-12-04
CITY G Y. MUST
PAY \. DAMAGE ] A \ 1 n
The Supreme Court Decides IN
Favor Of the Gallcgo
Mills.
OTHER CASES DISPOSED OF
Decisionii i'll the Matter Of a Will.
Balance Due the Heirs
Of ali Estate.

a. The Supreme Court of Appeals Of Wiz
ginla yesterday handed down opinions III
number Of cases Of widespread general
4 interest. or the entire number perhaps
the most interesting. locally Is that OF the
! city Of Richmond vs.. the CALICO Mills
Company, appealed from tho Law and
Equity Court Of the city OF Richmond
The opinion Of the court In this case IS
written by Judge Stafford &. Whittle. and
/; anirms tho Judgment Of the lower court
I which wardcd the Gallego Mills Com
pany damages to the amount Of $500
This case Is moro or less familiar to the
public through frequent publications Of
\ the causes Of the loss and damage to tbs
4 mill company In reviewing the case the
court describes tho location Of the mills
$-and the culyert. the improper condition
and consequent breakage Of which caused
4 the damage. 1t is established from the re-
cord that the cuiyert. though not built
originally by the city had passed into It's
possession, and that It had been used for
fifty years or more as sewer or outlet
for the sewage Of tho city. After tho
coll apse Of the culvert along the custern
walls of the mill. the city OF Richmond
with knowledge VI its broken. obstructed
ana dangerous condition at the point
where It passed beneath tho bottom Of
the area along the eastern wall Of the mill
n and the foundations otthe outward wall
tho area and tho brick arch spanning tho
\ same, neglected to repair the culycrt, and
4 con unued to use 1t for sewage purposes
i The effect Of that user and neglect was
90 undermine the area wall and arch ln.
der the mill, causing the forebay or flume
! to break and give way, whereby a largo
volume OF water flowed from the basin
over tch embankment area and Into the
mills, seriously DANA gIng the property. #
HISTORY OF CULVERT. isf
4 After this statement OF the facts In
the case, the court proceeds to trace the
n history Of the culvcrt, showing that It Is
not clear by whom It was constructed. but
that for over sixty years 1t had been IN the
open, continuous and exclusive use OF the
city. This Is further shown by records VI
The Council, which make it clear that the
city In LEA authorized the extension OF the
culvert In 1886 the city directed the con-
struction OF new culyert connecting
with the old one under the basin, In 1873
another cuiyert was built by direction OF
the Council and connected with the old
@culvert,
Having reviewed these facts. the court
quotes the plaintiffs instruction to tho
Jury granted by tho trial court and TO
which defendant objects and excerpts. This
Sin brief provides that II tho jury believe
that the culvert was use by the city
and became a part OF Its sewer system.
that the city Is chargeablc In respect 10
A. 1,tff and raQn IL.
ties as It had been constructed by tho
city, The Appellate Court sustains the
lower court In giving this instruction, and
quotes at length from several authorities.
Tho objections TO this instruction are de-
clared TO 10 without merit, and 10 was
properly given.
Tho second subdivision OF the first as
alignment OF error Is also dismissed Dy
the appellate court as without merit.
This contention was that tho city had no
power to construct sewers save N i1s
streets. alleys and public places. The
nroysion OF the charter relied on 10
I'd, sustain this contention was not IN
tended to restrict the power OF the city.
but rather to increase the servltude that
ordinarily attaches to a right OF way.
Since the old culyert was a necessary out
LET for sewage, which Is not denied,aStt
was competent for the city TO have &C
quired It. other by express or implied
grant.
ASSIGNMENT ERRONEOUS.
The assignment OF error In the re-
fusal OF the trial court to grant instruc-'
4 tion No, A. offered by the defendant.
which in effect told the jury that the
city was not responsible, was erroneous,
and was properly refused.
i Two other assignments OF error are IN
the refusal OF the trial court to give IN
Instructions O and II. On this subject the
, /, ~, hnth at holds
that there was no evidence to sustain the
Hypothetical case upon which they were
ba sed and corract practice fornids the
giving OF an instruction upon an ab-
tract proposition Of law or where there
Is no evidence to support i.
Concluding his very able opinion,
Judge white says: The instructions
we're, therefore, properly rejected upon
two grounds: ID That there was no
evidence to sustain them as to the plain
tiff; and (2) that the proposition OF law
embodied In them is unsound. SO TAR as
/ applied to tho act OF former owners OF
; tho property. Upon the whole case the
z. tudgment complained of Is without error,
;and Is affirmed.
In the case OF Musgrave and others vs.
A Pope's executors whiol, involves the
construction Of the will Of Caroline F.
Pope, OF southampton county. Judge
TX SdEuWei1 tSvo' sos vac a>.'tSu.' .NSNo'"'- -
i that county and remands the case for
further proceedings In accordance with
his opinion,
Judge Keith affirmed the decision Of tho
Circuit Court Of P!ttsylvania In the case
OF Headrlck We, Mcdowell. In this cause
Jacob HeadrIok had advance dcertaln
money to his son, John c. Headrlck, and
property to his daughter, Mary Jane, Nc
DowelI, In condition Of which they enter
ed into written contract to waive all
claims on his estate thereafter, Flo also