Crenshaw v. Slate River Co.

Holding

The Plaintiffs, dsbury Crenshaw, and Thomas B. Crenshaw. exhibited their Bill to the Judge of the Superior Court of Chancer).’ for the Richmond District, praying for an Injunction against thc- “■ Trustees of the Slate River Companj”,” a Corporation of that name, created by an Act of the General Assembly, passed on the 29th January, 1819. They allege that they are the owners in fee simple of a valuable water-grist mill, in Buckingham county, built cn a water-course called Slate River; that the mill is supplied with water by a dam erected across the said river pursuant to Law, at a place where they (the Plaintiffs) are the fee simple owners oí the bed of the water-course, and of the lands on both’sides thereof.

They trace back their title to the said land and bed of the river, to a patent issued on the 10th January, 1726, granting 1600 acre? of land to James Skelton, including the land on which the mill and dam are situated, and the bed of the river. In October, 1727,-Skelton sold and convejred the said laud to George Nicholas, and from him it passed to his son John Nicholas, who obtained from the County Court of Buckingham, on the 13th Majg 1765, an order authorising him to build and ei’ect a dam across the said river on the said land; and in pursuance thereof, the said John Nicholas did build a mill and erect a dam on the site now occupied by the dam of the Plaintiffs. John Nicholas, in 1795, devised the land on which the mill and dam were erected, to his son Hubert Nicholas, who in 1802, petitioned the County Court for leave to erect a water-grist mill on his own land on Slate River, where John Nicholas formerly liad a mill. A Writ of Ad Quod Damnum was awarded, and the Jury found among other things that ordinary navigu tion will not be obstructed, and on the 12th July, 1802, an nucon ditional order to build the mill ivas granted him. On the 21st Sep • tember, 1S02, he sold and conveyed to Charles A. Scott, who proceeded to erect the mill and dam at the site aforesaid at very great expense. Scott sold and conveyed in 1807, to John Cunningham, fi’om whom it passed to his daughter Letit’u Taylor, who, wiih her husband Archibald Taylor, conveyed on the 28th Juljq 1824, to the Plaintiffs. Thus, they allege, that the title to the land, with the bed of the water-course, and the undisturbed possession thereof has remained with the original paterltce, and those claiming under him, for a space of almost one hundred years.

They allege that Slate River, within the bounds of Skelton’s patent, is a small stream, many miles above tide-water and ship navigation, and was not, at the time of the grant; used for navigation of any sort.

They allege that on the 18th December, 1794, the Legislature passed an Act, for improving the navigation of Slate River, by which Trustees are appointed to raise money by subscription for that purpose; and that by the 4th section, owners of mills on the river are required to erect locks or slopes for the passage of battenus of four tons burthen, and of fish, at their own expense, and to keep them in good repair. [See Sessions Acts of 1794, ch. 48, p. 29.] But that, as they are informed, no subscriptions were raised under that Act, and nothing was done for the improvement of the river; the scheme being found impracticable and was abandoned.

That another Act passed 29th January, 1819, entitled “An Act for improving the navigation of Slate River,” whereby a Joint Stock Company was incorporated by the name and style of “The Trustees of Slate River,” [See Sessions Acts qf 1818, ch. 37.] for improving the navigation of the river “from its junction with the «Tames Iiiver, to the highest practicable point of improvement:” and the improvement required by Law is, that the river should be made “capable of being navigated in ordinary seasons, by vessels drawing one foot water.” When the river is thus made navigable, it is declared to be a public highway, and the Company are entitled to tolls.

That by the 10th and 11th sections of the said Act, the owners of mills are required, within six months after the navigation shall have been completed to their several mills, to erect good and sufficient locks through their dams, or on canals around them, so as to procure a safe and easy passage for loaded boats; to keep them in repair, and to cause constant attendance to be given by some person who will enable the boats to have free passage through them; and on failure so to do, a fine of $20 is imposed on the offender for every moreover to party grieved for damages. And if the owners of the mills shall refuse or fail to erect the locks within eighteen months, the mill-dams are declared to be nuisances, and may be abated: and the Trustees are empowered to clear them away, and to charge the expense of doing so to the owners of the mills.

They allege, that their dam is situated about a mile and a quarter above the mouth of the river; that from the dam to the mouth, the stream has been used to transport the manufactuse of the mill ever since its erection by Scolt, long before the passage of this Act; that the dam is built at the foot of a succession of rapids, which never were navigable, and never could have been made so without great expense.; that the dam is seventeen feet high, and causes the water to flow back only about three quarters of a mile; that no part of the stream above the dam has ever been used for the purpose of navigation, as they have been informed, except on one occasion, when a single boat with two hogs heads of tobacco passed down in high water many years ago; that the obstructions to navigation above their mill are such, that they believe the Company could not be induced to encounter the expense of removing them, either for the public good, or their own emolument, if they were bound to bear the whole expense of the improvement; but, there having been constructed on the river five mills, the dams of which have been erected on the faith of the General Law in relation to mills, and their dams having made eddy water for about twelve miles, one-third of the distance over which the improvement is contemplated, the expense of improving the residue of the distance may be within the competency of the Company; that these. Jams together, are believed to be between sixty-three and sixty-five feet in height, and to have covered with their ponds the most difficult part of the river to he improved; that if the Company can now charge the mill-owners with the expense of locks, while they will throw an immense burthen off their own shoulders, they will tax with an unjust and grievous burthen, those very individuals who have already done So much for the improvement of the river, and whose, mills are a great public benefit; that, notwithstanding these considerations, the Company are proceeding to impose on the Plaintiffs, and the other mill-owners, the whole burthen of making-locks at their dams, of keeping them in repair, and causing them to be attended to in the manner prescribed by the Act of Assembly»

They state, that they had received a written notice from the Company, apprising them that the navigation has been completed for six months, from the mouth of the river up to their dam, and requiring them to proceed to the erection of the locks. They say that the navigation above is not yet improved so. as to be fit for use, and cannot be for a considerable time; so that if they are bound to make them at all, there can be no utility in making them at this time; yet, if the Act aforesaid, so far as it relates to the mill-owners, be Law, and if they (the Plaintiffs) are bound by it, they are now exposed to the danger of being prosecuted and harassed by the Company, or by any vexatious individuals who may choose to prosecute for the fines, and in the course of a few months, they will be exposed to the danger of having their dam, which is valuable to them and the public, regarded as a nuisance, and abated by the Company.

They charge, that the Act, so far as it requires the mill-owners to build and repair, and superintend the locks, is without authority and void; that they are advised they are not bound to build the locks; that no fine could be lawfully imposed on them for failure to do so, and that their dam could not be lawfully abated by the Company for such failure; but, they do not desire to engage in so inconvenient, perplexing and hazardous a controversy, as that which would arise at Law, in repeated efforts to fine them, or in an attempt to abate the nuisance; that such a controversy would be alike detrimental to^their interest, and that of the Company; and that while they are threatened with the penalties of the Law for not doing what they are advised they are not bound to do, they can neither enjoy their property in quiet, nor bring it to market with safety.

They therefore pray, that, as they are without remedy at Law, the Slate River Company may be made Defendants to their Bill; that themselves may bo quieted in the possession and enjoyment of their free from the claim of the to have the locks built by them; and that the Company, their agents, and all others, may be mjoined from prosecuting them for fines and from abating and disturbing their dam.

This Bill of Injunction was exhibited on the 28th March, 1825. The Patent, Deeds, Acts of Assembly, and other Documents refer-led to, were annexed to the Bill. The Injunction was awarded on the next day. The Trustees of the Slate River Company filed their Answer on the 5th August of the same year.

The Answer of the Defendants, the Slate River Company, is to the following effect:

They admit the emanation of a Grant to Skelton, the execution of the several Deeds, the transmission of the lands patented, and the. other documents referred to, so far as matters of fact are proved by those exhibits; but, they deny that the bed or stream of Slate Rivet was ever so disposed of, or granted to Skelton, or those claiming under him, as to preclude or impair the rights vested in the Slate River Company by Law, and the Statural rights which appertain to the people of Virginia to apply the stream for the purpose of navigation.

They say, that as early as 5th November, 1788, the Legislature passed a Law appointing Commissioners to examine the natural and artificial obstructions to Slate River, and to give their opinion whether it was practicable to make the stream navigable, and to re-poi’t to the next Assembly. In December, 1790, they passed another Law reviving the former, appointing additional Commissioners, requiring any three to perform the duty assigned by the former Law, and to report. That on the 18th December, 1794, (at which lime neither the Plaintiffs, nor any one from whom they claim, had any mill-dam, or right to erect any mill-dam across Slate River,) the Legislature passed the Act referred to in the Bill. That by that Law it is asserted, that it had been represented to them, that the extension of the navigation of the Slate River would be of public utility, and it is probable this representation was made by the Commissioners. That before the year 1794, the mill-dam erected by John. Nicholas was down, and continued down so long that neither ho, nor any one claiming under him, could lawfully erect the dam anew, – without a new order from the County Court. Whatever then might be the legal effect of the order of 1765, yet the rights given thereby were lost to the builder of the dam, and those claiming under him; and before the order of July, 1S02, was made, the Legislature appropriated Slate River to the purposes of navigation, in exclusion of any rights which the Plaintiffs, or those under whom they claim» have, or may have had.

They say, that the dam of the Plaintiffs is not erected at the same place on which the dam of John Nicholas Iras built; that Slate River, at the Plaintiffs’ mills, and for many miles up, and to its junction with James Riyer, is a stream large enough to be used, and well suited to be improved for the purposes of navigation, to the great benefit of the public; that in its natural state, and as far back as during tiie War of the Revolution, it has boon used for transportation-, that after the dam of John Nicholas was down, the stream, for some distance above the Plaintiffs’ mili, and even above the lands ever owned by John Nicholas, was used for transportation.

They deny- that nothing was done under the Act of 1794, to improve the navigation of the river. They say, that the persons appointed by that Act, divided the river into sections, and alloted the sections to persons who did much work on it; that one section, as difficult as any other, was allotted to Francis Harris? who nearly put his section in order for navigation; that the scheme was never abandoned from the belief that it could not be carried into effect; that those concerned in the undertaking under the Act of 1794, determined that it might be made navigable at the very time when there was no dam across the stream near the prosent dam of the Plaintiffs. They believed, that the neighbours on the stream might make it navigable to Kidd’s Falls; and from that point to some little distance below, they would have to employ a man, and spend some money to remove the rocks about the Falls, and obstructions in the str.eam.

They claim all the rights vested in them by the Act of 1819; and Insist, that the Complainants have no l-ight to ask an exemption from any burthens or duties imposed by-that Law.

They say, that the Plaintiffs’ mill is situated about one and a quarter, or two miles from the mouth of the river; that the dam is about seventeen feet liigh, and causes the water to flow back between three-quarters of a mile and one mile and a half.

They admit, that the river- between the mill of the Plaintiffs and Kidd’s Falls, a distance of three or*four miles, abounds with rocks, and falls that would be expensive to remove; but, they deny that they would give over the undertaking in which they have engaged, if there was no mill-dam on the river. ‘ They believe the mill-dams arc’an hindrance and an inconvenience to the works for improving the navigation. They admit, that the water in the mill is generally confined to the hanks of the stream. The ponds are deep, and much wider than other parts of the stream; and in the winter will retain Ihe ice much longer than the other parts of the stream, and 1 hereby obstruct navigation longer. » They say, that the mill-owners can manage to stop tlie water in its passage clown, so as to produce delay in navigation; but, if there were no dams on the river, except those belonging to the Company, placed where they might be used, as they were required, under the sole management of the Company, it would be in the poorer of the Company, by the use of their lock-dams and works, to obviate, in a great degree, the inconvenience arising from scarcity of water, drought, or ice. They admit, that tlie eddies formed by the mill-darns are about twelve miles, and the Company contemplate carrying the navigation to Buckingham Court-house, a distance of about forty miles; but, they deny that these eddies are beneficial to the Company in their work. They say, that if they were to erect locks at-their own expense in the mill-dams, they would spend more money than would be required to improve the stream from its natural state; and after they have encountered such expense, if the dams should be allowed by the mill-owners to go down, the locks of the Company would be destroyed, and they would be compelled to go to work on the bed of the stream. The locks erected in the dams of the millers, would require greater skill, and would be much more difficult to be kept in repair than the dams of the Company, erected just where the Company want them.

They say,”” that from tlie time of the passage of the Law in IS 19, to’ December, 1823, great efforts were made to raise the stock, and form the Company, which was well known to Archibald Taylor, the then owner of the Plaintiffs’ mill, who subscribed for two shares of the stock, on the agreement that he might expend it in improving the navigation below his mill; that he placed a lock-dam between his mill and the mouth of the river, for the Company, which he used .in navigating the river to his mill, and the Plaintiffs also, since they purchased: that the Plaintiffs purchased from Archibald Taylor, after the Company had been formed; had spent a large sum of money in the work, and had succeeded in procuring a passage of Laws fo obtain a subscription on the part from the Fund for Internal Improvement: that the Plaintiffs have become purchasers with a full knowledge of all circumstances, and now demand to be freed from 3n obligation which they are bound by Law to bear: that the Defendants being apprised of the temper of the Plaintiffs, and of their disposition to impede the operations of the Company, gave them the notice of which they complain.

They admit that the river had not been made navigable to the Plaintiffs’ dam, from above, but they assert that it had been from below, and that the Company had done, nearly a fourth of the entire work, and but for the mill-dams, they believe the work might be completed by the Fall of 1825, They say, they be-. licvo the work practicable, and when finished, will be of great public utility.

They deny, that the County Court has any power or authority to make an order (in favor of a petitioner for leave to erect a mill,) whereby the mill-owner shall have the right to appropriate to himself the privilege of excluding the people of the Commonwealth the right of navigating the streams of the Commonwealth: that it is the duty of the County Courts to remove obstructions to navigation, but they have no right to throw impediments to navigation, in the way of those who live on the upper part of the streams.

They contend, that although ships can never navigate Slate River, yet that the streams which are susceptible of navigation, are under the control of the Legislature, and that the owners of dams across them may be subjected to such terms as to the Legislature may seem just: that before and since the Revolution, to secure the passage of fish, and to improve navigation, the Legislature have required own ■ ers of mill-dams to erect locks or slopes, in their dams: and that the privilege of navigating streams is a natural right.

They do not admit the right of a Court of Equity, by any Decree, to stand in the way of a determination of a Court of Law, on any of the matters set forth in the Plaintiffs’ Bill. They deny all fraud, and all disposition to oppress, or be oppressed.

To this Answer a general replication was filed, and the parties pro-, ccedcd to take the Depositions of numerous witnesses. It is not deemed necessary to report any part of that evidence. So far as it was necessary to explain any point decided by the Court, the Judges have referred to the evidence.

In June, 1886, the Chancellor dissolved the Injunction, and the Plaintiffs appealed to this Court.

Case Coverage

• Stuart A. Raphael, What is the Standard for Obtaining a Preliminary Injunction in Virginia?, 57 U. Rich. L. Rev. 197 (2022).

  Footnote example of a 19th century case citing English chancery rulings from before and after 1776 without revealing whether it considered those precedents binding or persuasive.