Millers v. City Council of Augusta

1. Though the corporation of Augusta, as proprietor of the Augusta canal, be not bound by express contract to supply a given head of water to a particular mill, nor to abstain from making alterations in the canal which will reduce the fall at such mill and impede or obstruct the accustomed action of its wheels by backwater, yet, the corporation cannot capriciously and without just cause withhold a due supply of water, nor can it make alterations in the canal injurious to the efficient working of the particular mill, unless they are needful and proper alterations, and consistent with sound principles as applied to the nature of the enterprise and to the business relations and circumstances of the corporation towards the various mills and manufacturing establishments situated along the canal and deriving water-supplj therefrom. 2. There was enough evidence submitted by the complainants to make it proper for the jury to pass upon its sufficiency.

Municipal corporations. Canals. Non-suit. Before Judge Snead. Richmond Superior Court. April Term, 1879. The complainants brought tbeir bill, alleging that the City Council of Augusta, by an ordinance passed March 15, 1845, and by a supplemental ordinance passed July 7,1845, provided for the construction of a canal for “manufacturing and other purposes,” from Bull Sluice, on the Savannah river, into the city of Augusta, and on December 27,1845, upon application, received from the general assembly an act of incorporation, whereby the said City Council and others contributing to the expense of constructing said canal, and their assigns, were made a body corporate under the name of the “Augusta Canal Company,” with “power in the name and behalf of the said company, to make all contracts, and for the úse of the water of the same for manufacturing and other purposes.” That on March 2,1852, the City Council of Augusta, being the owners thereof, and in order to utilize the water from said canal, and by water rentals therefrom to reimburse themselves for the cost of its construction, bargained to one Ogleby a certain lot of land on the line of said canal, between the second and third levels thereof, for the purpose of building and maintaining thereon a manufactory of cotton gins, etc., the machinery of which was to be driven by water from said canal, which, with the consent of defendant, was transferred to T. J. Cheely, and a bond for title executed therefor to said Cheely, who proceeded to erect said manufactory upon said lot, and to construct the necessary appurtenances thereto, in the shape of a forbay, flume, pen-stock and waste-weir for the application to and use of water from said canal by said mill. That afterwards, on February 1, 1855, a contract for the use of Avater from said canal by said mill, was duly executed betAveen said Canal Company and said Cheely, for the term of five years, wherein said Cheely was bound to “have said mill and machinery in full operation by the first day of June next (1855), and that if said mill and machinery is not in full operation by that time, the water rent shall then begin and become due and payable as above mentioned.” That said Cheely having failed to pay for said lot of land, the said City Council afterwards, on August 5, 1856, conveyed the same (with others in said deed described lying next thereto) to James Brown, “together with all and singular the rights, members and appurtenances thereof whatsoever, to the said lot or parcel of land, or in anywise appertaining, and the remainders, reversions, rents, issues, and profits thereof, and every part thereof, to have and to hold, etc,” said mill being then built and in receipt of water from said canal. That at the date of the contract, the building of the mill, and from the construction of said canal, until the acts complained of, the head and fall of water, or difference' between the surface of water in the second and third levels of said canal was thirteen feet. That the flumes, pen-stocks, waste-weir, and all- other necessary contrivances to carry water from said second level of the canal to said mill upon and through said land to the third level pf said canal, which, together with the right to use said water therefrom, as provided in said contract, until its expiration, and thence forward as might be agreed upon as necessary to the use of said mill, was an appurtenance, right and member appertaining and belonging to said land, and passed to the said James Brown and his assigns under the aforesaid deed. That as contemplated by said sale and purchase, said lot of land, wdth the additions made thereto by purchases from time to time from said City Council, and the contract for the use of water thereon, have ever since been used for the purposes of manufacturing. That in 18— said mill was converted into flour-mills, and have been from time to time enlarged with the knowledge and acquiesence of said City Council and Canal Company, and said Canal Company and City Council have continued to furnish water for their use and operation as required, and received pay therefor. That in 187-, with the knowledge and acquiesence of said parties, R. F. Urquhart, the then owner, enlarged the flumes, pen-stocks, waste-weir, and other appurtenances for receiving water from said canal by said mills, and constructed them upon their present plan, and said parties thenceforward furnished the requisite supply of water through the same, without objection. In 1874, complainants bought said lot of land, with the mills and appurtenances thereon, under a regular chain of title from said City Council, for $16,500, at which time said mills were receiving the necessary supply of water to run' the same at the original head and fall of thirteen feet. That shortly after their purchase, with the full knowledge and acqniesence of the Canal Company, and relying on the original and then existing head and fall of water at said mills of thirteen feet, in order to complete the facilities and conveniences of said mills, and to make them first-class throughout for the manufacture of superior grades of flour, meal, etc., and to utilize the volume of water then passing through said mills, complainants, at a further expense of $20,000, thoroughly overhauled the mill buildings, taking out the old wheels and machinery and putting in new and the most improved wheelsand machinery, and erected a storeroom or warehouse for the products thereof. That upon the completion of those improvements, and the starting of the mills, the supply of water theretofore furnished and then existing, was found most ample and abundant, and which continued to be abundant so long as the said head and fall of thirteen feet was preserved. That on January 1, 1875, complainants bought of defendant the adjoining lot of land, and added to said mill-tract at a further cost of $500 ; that in 18 i7,the canal and all appurtenances was conveyed by the Augusta Canal Company to the City Council of Augusta, and said City Council was thereby formally vested “with all the power, authority and privileges conferred on said company by the act incorporating it, and shall be subject to all the liabilities therein prescribed.” That prior thereto the said City Council enlarged said canal, on its first level, from its former capacity of 700 horse power to 1400 horse power, which greatly increased the volume of water which was applied to the mills on said first level, with raceways emptying therefrom into the second and third levels, and which, since said enlargement, have been permitted to use 2 34-100 times more water than before, to say nothing of the great waste of water through their connections and appurtenances. That no enlargement was made of the second and third levels, so that this greatly increased volume of water could be received and discharged by these levels— (being fully three times the amount they were built to receive) — the inevitable result of which was to raise the surfaces thereof and to reduce the head and fall as previously fixed. That owing to the favorable location of complainants’ mill, on the extreme eastern end of the second level, and remote from the race-ways of the mills on the first level, with the exception of the sluggish flow of the water in the third level east of Marbury street wasteway from the discharge of this increased volume of water from the first and second levels through this wasteway, complainants had escaped much of the evil resulting from the failure to proportionately enlarge the second and third levels, until March, 1877, when the said City Council, under pretext of facilitating the flow of water to the eastern end of the second level, and thereby washing out mud accumulations therein (the real purpose and design being by a reduction of the surface of the second level to relieve mill No. 2, of the Augusta factory of back-water caused by the use of said mill of double the quantity of water without enlarging its race-way), constructed near the mill of complainants a waste-way from the second to the third level of said canal, and within forty feet of the flume of their mill, and so arranged below the surface of the said second level as to cause the water to flow over the same to the depth of four inches, and to reduce the surface of the second level (as existing prior to the construction of this waste-way) 1 57-100 feet, and to raise the surface of the second level two feet, thus reducing the head and fall between said levels from thirteen feet to nine and a half feet. That said new waste-way is a perversion of the original plan of said canal as it existed from its construction in 1847 to 1877. That the natural and original waste-way between said levels is at Mar-bury street near the Augusta factory. That the new one near the mills of complainants was built under the advice and direction of P. S. Holden, who, besides being the superintendent of said canal, is the employee as engineer and— of the Augusta factory, and by whom the wheels in said mill No. 2, and their water-appurtenances were put in position and remain under his control — that the purpose named and pretext given for the construction of said new waste-way are ridiculous — that it cannot possibly work any such result, but the contrary, and its construction is the result of over zeal upon the part of Holden, who is enabled by his position to favor the factory at the expense of the other water-tenants of the canal, and' whose rights are, in many respects, antagonistic to the factory, whose employee he is. That the members of the City Council are without knowledge or experience in the maintenance and supervision of a great water-power like the canal, and have of necessity to rely upon and be governed by the opinions of their said superintendent and engiueer, to which fact is largely due the failure of complainants to secure redress of their grievances. That as soon as the ruinous consequences of this waste-way were disclosed, complainants thought it only necessary to bring the matter to the attention of defendant to have it remedied, in which reasonable expectation they were disappointed, as their complaints and protests were wholly fruitless ; that just prior to the bringing of this bill, upon renewing their protest against the ruin of their property by a course not only perversive of the original plan of the canal, but had and continued in the interest of one tenant against another, thereby discriminating among tenants entitled to equal rights, and the same enjoyment of the use of property constructed and authorized for the equal and just use and enjoyment of the public, without so much as a respectful hearing or inquiry into the complaint of the complainants, they were informed that said waste-way had been built to wash out the canal; whereupon complainants proposed, if such was the real purpose, and would be so used, that it would not and could not greatly injure complainants, and that if defendant would restore the head and fall by raising the lip of the waste-way for that purpose, that complainants would make no objection to it and its use for washing out said levels — which proposition was declined, and defendant then urged that complainants had no rights in the premises, as they had no contract for water from said canal in writing, and the verbal agreement for the use of the same was not binding, and that neither the purchase of said lots along said canal from said City Council for the purpose of building and operating mills thereon to be run by water from said canal, and the conveyance thereof by council with the appurtenances to and the use of water by said mill, the large expenditure of money in improving and enlarging said mills upon the faith of the then water supply, nor the fact of having received water from said canal for said mills and the payment therefor for over twenty years, gave them any rights in the premises; and that unless complainants would forego their aforesaid grievances and apply for a new contract for the use of water by said mills under the changed status of said head and fall of water, that said City Council would cut off said water entirely from said mills, which threat complainants are satisfied defendant will carry into execution if not restrained. That the effect of the said waste-way in reducing the head and fall has so reduced the power of the mills as to decrease their production more than one-half, the product being before 75 barrels of flour and 600 bushels of meal, and since 35 barrels of flour and 300 bushels of meal per day. That said waste-way, as now used, is wholly unnecessary to any intelligent or legitimate purpose in the management of said canal, and is not needful or necessary to the full enjoyment of any right or interest claimed by any person or corporation using water from the same; that its construction and use is a departure from the plan of said canal and an injury thereto —that the Marbury street waste-way is the original and natural outlet for the water from the second to the third levels, and is ample for said purpose, and does not injure any one, as the mills were built with reference thereto. The prayer of the bill is for in junction to prevent the execution of the threat to cutoff water, and especially to enjoin the use of said waste-way to reduce the head and fall of water between the second and third levels as theretofore existing,, and for damages for injury done thereby, and general relief. Complainants made by their testimony substantially the-case presented by their bill. At the conclusion of their-■evidence the court, on motion of defendant, ordered as follows : “ According to my view of the facts presented in evidence, in order to charge the city it must be proven that-the complainants had a contract with the city; I have looked in vain to see any contract granting to complainants this water-power they claim. In looking into the deed it only conveys land and improvements, but that deed does not include any water-power. That was outside, that was to be fixed afterwards by the contract. My decision is that there is no evidence showing a contract with the city or a breach, of such contract. I therefore award a non-suit.” To this judgment complainants-excepted.