Hurt & Son v. Myers & Axtell

Lewis, P., delivered the opinion of the court. This is a controversy between the appellants and the receivers of the Eichmond and Alleghany Eailroad Company. The former are the owners and operators of an extensive flouring mill in the city of Lynchburg, situate on what is known as “ the Lynchburg level.” And for a number of years they were lessees of certain water privileges, for the operation of their mill, from the James Eiver and Kanawha Canal Company. On the first of. October, 1876, they entered into a new lease with the canal company for a water supply, at a stipulated and established rate, which by its terms was to continue until the first of July, 1883. On the fourth of March, 1880, the property and franchises of the James Eiver and Kanawha Company were [191] sold and conveyed to the Richmond and Alleghany Railroad Company, pursuant to authority conferred by the act of assembly, approved February 27, 1879. (Acts 1878-79, p. 118 et seq.) And by a decree of the court below, entered in the suit of Bocock and Green, trustees, against The Richmond and Alleghany Railroad Company, in June, 1883, the property, franchises, etc., of the last mentioned company were placed in the hands of the above mentioned receivers, who have since operated the road under the ■control of the court. After the expiration of their lease above mentioned, the appellants were notified by the said receivers of their resolution to charge thereafter increased rates for the water privileges theretofore leased by the appellants, whereupon the latter denied the right of the receivers to do so; and to settle the question in dispute, a petition was filed in the court below by the receivers, to which the appellants and others in like case with them were made defendants. The circuit court decided in favor of the receivers, whereupon this appeal was taken. The case turns upon the true construction of the sixth clause of the first section of the act above mentioned, which is as follows: “ Sixth. It is hereby provided that the rate of dockage at Richmond shall not exceed the rate at present established by the James River and Kanawha Company, and all existing contracts for water privileges along the entire line shall be respected and maintained at rates not exceeding the present rates, except in those cases in which they may be cancelled or altered by agreement, or extinguished by condemnation. It shall be the duty of the Richmond and Alleghany Railroad Company to maintain the present water supply of the docks, and of the canal, along its line, between Bosher’s dam and tide-water, and along the Lynchburg level between the water-works .dam (which [192] shall be preserved) above Lynchburg; and in the construction of its railroad it shall not so destroy or obstruct the present canal between Bosher’s dam and tide-water, on between the water-works dam above Lynchburg and the first lock below Lynchburg, as to lessen the present supply of water.” The claim of the appellants is, that these provisions of the statute make perpe'tual, at the option of the lessees, all contracts for water privileges in existence at the time the-statute was passed. And in support of this view an elaborate argument has been submitted, much of which, had it-been addressed to the legislature when the act was under consideration by that body, would doubtless have had great weight, but which loses its force when addressed to us, whose province it is simply -to construe the statute as-it was passed. The decree is clearly right. The language in question is plain and unambiguous, and we have neither power to-change it, nor a doubt -as to its construction. It is not. enacted that all existing water privileges shall be continued as they are; but that “all existing contracts for water-privileges * * shall be respected and maintained at rates-not exceeding the present rates,” which means contracts executed, and binding on both sides, not future contracts, and still less contracts to be indefinitely continued at the option of the lessees. The evident purpose of the legislature was, by special enactment, to protect existing contracts for water privileges which had been entered into-with the canal company, but not, in doing so, to impose-upon the railroad company, as its successor, greater obligations in respect thereto than, the canal company had assumed. Therefore, such contracts, which by their terms-were not renewable as against the canal company, became none the more so as against the railroad company. In. [193] other words, they were not affected by the transfer of the property and franchises of the canal company to the railroad company. It is true that such contracts were already protected against impairment by both State and federal law, but that cannot change the language of the statute, or extend its operation to matters not embraced within its terms. In respect to dockage at Richmond, the language is explicit, that the rate shall not exceed the rate established by the James River and Kanawha Company, at the date of, the passage of the act. But the language, immediately following, in respect to water rates, is different. These the company is not forbidden to increase, except only where to do so would violate “ existing contracts.” This difference in phraseology is significant, and shows that the legislature intended to leave the matter of water rates a subject of contract between the parties, after then “existing contracts” had expired. Nor is the case affected by the provision requiring the railroad company to maintain its water supply at Richmond and at Lynchburg. The provision was undoubtedly inserted in the interest of the manufacturing establishments in and near those cities, which were dependent for their water supply on the canal company; but this requirement is a very different thing from requiring the company to furnish water for all time to come, if the lessees choose to continue to take it, at rates not exceeding those charged at the time the act took effect. In short, as was well said by counsel for appellees, to reverse the decree would be to hold, in effect, that the statute not only requires existing contracts to be respected and maintained, but imposes an obligation on one side only to make other and additional contracts, which did not exist, which the canal company was not bound to make, which the water-taker may at his [194] pleasure refuse to make, and the terms of which, even on the appellants’ own construction of the statute, are wholly undefined, save only as to the maximum of rates which may he charged. The decree is afiirmed. Decree affirmed.