No. 1796
IN THE Supreme Court of Appeals of Virginia AT STAUNTON
. THE GARDEN CLUB OF VIRGINIA ...... Appellant
vs.
VIRGINIA PUBLIC SERVICE COMPANY ...... Appellee
From the State Corporation Commission
Rule of the Supreme Court of Appeals W'ith Respect to HoW' Briefs of Counsel Shall Be Printed "The Briefs shall be printed in type not less in size than small pica and shall be nine inches in length and six inches in width, so as to conform in dimensions to the printed records along with which they are to be bound, in accordance with Act of Assembly approved March 16, 1903; and the Clerks of this Court are directed not to receive or file a Brief not conforming in all respects to the aforementioned require ments." The foregoing is printed in small pica type for the information of Counsel. HAMPTON H. W A YT, Clerk.
THE McCLt:11F. Co .. iNc .• PRl,."TER£. 9T.>.t:NToN. V.&.
01_.. /53 Va_ ~ IN THE Supreme Court of Appeals of Virginia AT STAUNTON
THE GARDEN CLUB OF VIRGINIA ...... Appellant
vs.
VIRGINIA PUBLIC SERVICE COMPANY ...... Appellee
To the Honorable Judges of the Supreme Court of Appeals of Vir ginia:
This controversy arises from a proposal by Virginia Pub~ic Ser~ vice Company to dam the waters of the North River, and store them, for use to make electricity. By an Act approved March 24, 1928 (Chap.ter 424, Acts of Assembly, 1928), the Virginia Legislature forbade anyone to con struct a dam across. any of the "waters of the State" without first applying for and obtaining a licens!! so to do from the State Corpora tion Commission of Virginia. The Act provided for a public hearing upon such an application and specified the considerations upon which the Commission should act in granting or refusing the license; it con tained a number o_f regulations applicable to licensees thereupder, vastly incre~sed their powers··.of eminent domain, and provided that any party to any proceedings who should be aggrieved by any order of the Commission should have an appeal of right to the Supreme Court of Appeals within six months from the date of such order. The peti_tioner, 'The Gar?en Club of Virginia, was a party to the proceedings before the State Corporation Commission, upon the above styled application of Virginia Public Service· Company to construct a dam across North River at the northern end of Goshen Pass. It sought to procure the consideration of the merits of the appliC~tion and sought a finding by the Commission, under Section 5 of the Act, -~------
2 The Garden Club of Virginia vs. Virginia Public Service Co. that the project was not meritorious and should not be licensed. After the hearing on the merits had been in process for some days the Com mission, of its own motion, required that the introduction of further testimony upon the merits b~ deferred until the question of the. juris diction of the Commission to grant or refuse the license had been de termined; indicating its doubt that the proposed situs of the dam was across "waters of the State" as defined by the Act. Testimony was subsequently taken, and arguments heard, pertinent to the question of jurisdiction. While a vast number of persons, corporations, and associations filed requests with the Commission for the favorable consideration of the application for a license, or protests against the granting of a license, there were only three parties who appeared, introduced evi dence, or made arguments, upon the jurisdictional question. Of these, the applicant consented to. the exercise of jurisdiction by the Commis sion; one Ayers, whose attorney also acted throughout the proceedings as an attorney for the applicant, vigorously contended that the Com mission had no jurisdiction; and the petitioner contended that the Commission did have, and should exercise jurisdiction, and should de cide the application upon its merits by refusing the license applied for. The decision of the jurisdictional question rested exclusively upon the answer to the question whether the waters across which the ap plicant proposed to construct its dam, are included among the "waters of the State" within the meaning of the Act, and thus among the waters not to be dammed without a license so to do from the Commis sion. The Commission, by order of July 24, 1929, held it had no jurisdiction to act on the application, basing its holding on the view that the North River at this point is not among the "waters of the State."
ASSIGNMENTS OF ERROR
The petitioner assigns as error the holding of the Commission in said order that it had no jurisdiction, and the provision therein dis missing the application. The petitioner contends that the North River at this point is in cluded among the "waters of the State" as defined in the Act, and assigns as error the holding of the Commission in its opinion that it is not so included. The Garden Club of Virginia vs.. Virginia Public Service Co. 3
Under the Act there are four kinds of streams which it is pro vided shall constitute the "waters of the State," viz: (a) Streams navigable by law, (b) streams the beds of which are owned by the Commonwealth, (c) streams used or suitable for use for transporta tion in interstate or foreign commerce, (d) streams not so used or suitable for use, but "in which the construction of any dam or works as authorized by this Act would affect the interests of interstate or foreign commerce." This petitioner makes no complaint of the holding of the Com mission, as shown by its opinion, that the North River is a stream not falling under any of the classifications (a), (b), and (c). However, the petitioner subn1its that. the Commission erred in holding, as shown by its opinion ( pp. 36 to 42 of lVIanuscript Record), that the .North River at this point is a stream not mentioned in classi fication (d) aBove; the Commission based this holding upon two sub ordinate ones, viz: ( 1) the holding of the Commission, as shown in its opinion, that the only commerce referred to in (d) supra is that carried on by transportation on the North River and James River and (2) its holding in that opinion- that such commerce would not be "affected" by the construction of the proposed dam. The petitioner assigns as error the first of these subordinate holdings. The manner in which the petitioner is aggrieved by the order of dismissal is that if the order stands there is no common Ia w principle nor any statute of Virginia under which the construction of the pro posed dam may be preventeq. If the order shall be reversed by this Court, then before the dam may lawfully be constructed, the Com mission must find under Section 5 of the Act that the applicant's plans provide for the. greatest practicable utilization of the waters in ques tion for power purposes, and that the erection of the dam is in the public interest. The petitioner believes that on an examination of the merits of the application for the granting of the license, pursuant to Section 5 of the Act, the Commission will find that it is its duty to re fuse the license. The provisions of Sections 4 and 5 of the Act clear Iy show that it is intended that every citizen and resident of the State who desires to oppose or favor the granting of a license applied for shall be ad mittted as a party; also that the question bf whether a proposed dam should be constructed has been declared by the legislature to be a question affected with a public interest in which citizens, merely by 4 The Garden Club of Virginia vs. Virginia Public Service Co. virtue of their status as such, have an actual interest, arising from their common material interest in the water power resources of the State, and in its streams as such, and in the cost of power in the State.
THE FACTS
After making its original application for a license, the applicant filed an amended application under which it proposed to construct a dam of lesser height than was proposed in the original application. The application was admittedly amended in order to avoid opposition to the project by a private manufacturing company owning property which would be damaged .by flooding if the originally proposed dam were constructed; and since the project as proposed in the original application is admitedly one providing for a greater utilization of the waters of North River than that proposed in the amend~d application, and since Section 5 of the Act requires the State Corporation Com mission, in granting a license, to modify the plans so as to require a proper development, and since it may only grant a license when it be lieves that the plans provide for the greatest practicable extent of utilization of the water~ of the State, in referring to the application reference will be made to the original, and not the amended appli cation. The applicant proposed to construct in Goshen Pass a dam about 450 feet long, raising the water 63 feet above the river bed at the dam. The dam would back water up along B~g Calf Pasture River a· dis tance of 5.2 miles and along Little Calf Pasture River a distance of . 6.8 miles; the level of the surface of the lake thus created would be 1,390 feet above sea level. All of the flow of North River would be cut off by the dam. For power purposes water would be taken from the lake at a point near the dam, through a concrete conduit which is to extend down the river bed a distance of 2 miles, to a power 'house, at a lower elevation, when it would pass through turbines, and back into the river bed. The lake will store materially more than 1,600,000,000 cubic feet of water. Since the mean flow of the stream is approximately 250 C. F. S., it will take approximately 75 days, con suming the mean flow of the stream, to fill the reservoir. If during that period water should be drawn off and passed through the con duit, for use in the power house, this period would be lengthened. This filling process would need to be repeated whenever in dry seasons The Garden Club of Virginia vs. Virginia Public Service Co. 5 the level of the water in the reservoir has been allowed to fall below its maximum, due to the drawing off of more water than flows in. The construction of the proposed project would. require the re location of State Highway No. 338 through Goshen Pass and for a part of the way up the Big Calf Pasture River; this road is used by automobiles passing from points outside of Virginia to Virginia des tinations, and the reverse. Detours would have to be used at some places by these autmnobiles while the re-located road was being con structed. The water in the reservoir would flood 4,500 feet of a spur track owned by the Chesapeake & Ohio Railway Company over which, in the twelve months ending Ivlarch 31, 1929, 487 cars were shipped to points outside of Virginia, some, if not all of which moved over the portion of the spur track which would be flooded. The Rockbridge Company, Inc., is erecting along or near this track a plant for the manufacture of wool. Smne of the material for the construction of this plant will be received from outside Virginia, the majority of the raw wool which will be used in manufacturing will be received from outside 'Of Virginia, the building materials and the raw materials will be received on this spur track, and the products of the company will be shipped in interstate commerce from the spur track. In addition, the entire volume of commerce to be conducted by Rockbridge Company, Incorporated, would be affected by the pro posed dam, because the foundations of the buildings of the Company will be seriously affected by the waters of the reservoir.
THE QUESTION WHICH THE SUPREME COURT OF APPEALS IS CALLED UPON TO ANSWER
The Commission has held ( p. 41) that the construction of the proposed dam and reservoir would not "affect the interests of inter state or foreign commerce," notwithstanding that it would cause to be flooded for 4,500 feet, a spur track of the C. & 0. Railw~y Com pany, used. in interstate commerce, would cause to be re-located for a distance of several miles State Highway No. 338, which is used in interstate commerce, and would compel the re-location of the· factory of the Rockbridge Company, Inc., now in process of construction with materials brought from without the State of Virginia which will fab ricate for shipment in interstate commerce, raw materials brought into Virginia from outside the State. 6 The Garden Club of Virginia vs. Virginia Public Service Co.
The Commission bases this holding on two propositions. First, it asserts that the language of the Act (Section 1', Clause (c), latter part) providing that there shall be included among the "waters of the ·State,'i in which dams may not be built without a license "any stream ...... in which the construction of any dam or works as authorized by this Act would affect the interests of interstate or foreign commerce,'~ should be construed as if it read as follows: "any stream ..... in which the construction of any dam or works as authorized by this Act would affect the interests of inter state or foreign commerce, carried on by transportation upon the stream or those streams or bodies of water into which its waters flow." Second, it asserts that interstate commerce carried on by trans portation on the North River and on James River would not be "affected," as it interprets the word "affect," by the construction of a dam as proposed in the original application. . Petition attacks the soundness of the first of the above proposi tions.
ARGUMENT
It is respectfully submitted that if the legislature had intended to limit and restrict the meaning of the phrase "affect the interests of interstate or foreign commerce," by adding thereto the qualifying phrase "carried on by transportatio'n upon the stream or those streams or bodies of water into which its waters flow," the legislature would itself have used that limiting language. An4 it is submitted that the Commission, by adding that language to the language used by the legislature, is itself attempting to write a water power act, in the place and state of the water power act written by the legislature. A reading of Section 1 of the Water Power Act of 1928 defining what four classes of streams shall be included in the term "waters of the State"' demonstrates that the legislature in a sub-division of Sec tion 1, separate from the clause now under consideration, .dealt with streams themselves used in the conduct of interstate or foreign com merce carried on by transportation upon such streams, which, accord ing to the Commission, are the streams it thinks the legislature meant to refer to in this sub-division of Section 1. Sub-division (c) of Section 1 is divided into two parts, one of which deals with streams The Garden Club of Virginia vs. Virginia Public Service Co. 7 used or suitable for use in the transportation of persons or property in interstate and foreign commerce, and the other of which especially deals with streams NOT used or suitable for use in the transportation of persons or property in interstate or foreign commerce. The de cision of the Commission gives to the second part of Sub-division (c) the same meaning expressly set forth in the words of the first part. In order to demonstrate the unsoundness of what the Commis sion has done we first set forth in parallcl.~olumns the first and second parts of this sub-division (c) of Section 1, as the Act was enacted by the legislature. The term "waters of the State" as used in this Act shall mean
(c) those parts of streams or other bodies of water in this State which either in their natural or improved condi tion, notwithstanding interruptions between the navigable parts of such streams or waters by falls, shallows, or rapids, compelling land carriage, are used or suitable for use for the transportation of persons or property in inter state or foreign commerce, including therein all such inter rupting falls, shallows, or rapids, "and also any stream or part thereof in this State other than those above mentio~ed in this sub-division (c) in which the construction of any dam or works as authorized by this Act would affect the interests of interstate or foreign commerce."
Eliminating superfluous matter we again parallel these two parts; . of sub-division (c) :
"those parts of streams ·: ...... used or suitable for use for the transportation of persons or property in in terstate or foreign conunerce. "and also any strean1 ...... ~ . . other than those above mentioned in this sub-division (c) in which the construction of any dan1 or works as authorized by this Act would affect the interests of interstate or foreign commerce.''
Now we parallel the first part of sub-division (c) as written by 8 The Garden Club of Virginia vs. Virginia Public Service Co. tlte legislature with the second part of- that sub-division as re-written by the Commission, again eliminating superfluous matter:
"those parts of streams ...... used or suitable for use for the transportation of persons or property in inter state or foreign commerce. "and also any stream ...... other than those above mentioned in this sub-division (c) in which the con struction of any dan1 or works as authorized by this Act would affect the interests of interstate or foreign commerce carried on by transportation upon the stream or those streams or bodies of water into which its waters flow.,
Patently the Commission's re-writing of the second part of sub division (c) makes it refer to stre.ams "not used or suitable for use for the transportation of persons or property in interstate and foreign commerce," provided "interstate or foreign commerce is carried on by transportation upon the streams." To so interpret the legislature's language is to make it talk sheer nonsense. WE FIND NOTHING WHATEVER IN THE LANGUAGE OF THE LEGISLATURE JUSTIFYING THE VIEW THAT IT HAD !N MIND ONLY THE AFFECTING OF DOWN STREAl\1 COMMERCE, AFfECTED BY STOPPAGE OF WATER, AND DID NOT HAVE IN MIND THE AFFECTING OF UP STREAM COMMERCE AFFECTED BY ITS BEING BACKED UP, NOR HAS THE COMMISSION POINTED OUT ON WHAT IT RELIES FOR IMPUTING THAT LIMITED INTEN TION TO THE LEGISLATURE. Few of the strean1s of the State have been declared navigable, in few cases are the beds of the streams owned by the State, llnd in few cases are the streams used or suitable for use in interstate or foreign transportation. So the giving to the part of sub-division (c) now under discussion of the limited and. singular construction to it by the Commission would .substantially nullify the purpose of the legislature declared in this Act "to conserve and utilize the otherwise wasted energy from the water powers in the State" an.d "to encourage the utilization of the water resources in the State" to the greatest prac ticable extent. A substantial fall or head is indispensable to power. A substantial fall or head does not occur in tidal streams which are The Garden Clttb of Virginia 'l'S. Virginia Public SerVice· Co. 9
generally speaking those which have been declared navigable, where the beds are owned by the State, and those which are used in inter state or foreign commerce; such a fall or head occurs only where a streatn cuts through a mountain or a range of hills; at such points streams have ordinarily not been declared navigable, the beds are not owned by the ·Commonwealth, and they are not used or suitable for use in transportation. As set forth in Section 5 of the Act, it is the purpose of the legislature not to allow people to construct projects such as that pro posed by this applicant except in cases where ( 1 ) its plans provide for the greatest practicable extent of utilization of the waters of the State for which application is made and ( 2) the general public interest will be promoted by the construction and op~ration of the proposed dam . and works. The construction given this section of sub-division (c) by the Commission restricts the application of the Act to the very places where people don't desire to develop power and excludes from its operation the headwaters, which are the places where power nmy be developed. Under this construction it is restricted substantially to the tidewater of the James, Appomattox, York, Rappahannock, and Potomac, where there never has been and never will be a power plant, and to those few streams such as the James above tidewater, and the lower parts of the very North River, which by old statutes accidentally unrepealed, are declared navigable. The construction involves the holding that if this very application had been n1ade to build this very dam, six miles further down this very stream (where the applicant would place it, except that power may not be developed there, and MAY be developed higher up) a license would be required, yet none is required to build it on the site proposed. Such an absurdly inade quate attempt "to conserve and otherwise utilize the otherwise wasted energy from the water powers in the State" should not be imputed to the legislature. Coming to examine in detail the meaning of the phrase "any stream ...... in which the construction of any dam or works as authorized by this Act would affect the interests of interstate or for eign commerce," it will be observed that the phrase "any dam or works as authorized by this Act" must have reference in the case at bar to a dam raising the water to a level of 1,390 feet; Section 5 says that no license shall be granted unless the plans provide for the great est practicable extent of utilization of the waters, and. the applicant 10 The Garden Club of Virginia vs. Virginia Public Service Co. by its original application for. a license to raise the water to 1,390 feet has shown that its raising to that level would be practi.cable; in addition, that scheme would patently utilize the water to a n1uch greater extent than would a dam raising the water only to 1,380 feet, since in the latter case the storage capacity would be somewhat less than two-thirds of what it would be in the former case, and the water power would be substantially less. The phrase, "would affect the interests of interstate or foreign commerce," is obviously the equivalent of the phrase, "would affect interstate or foreign commerce." The word "interest" is of latin derivation, meaning, "it concerns," and the phrase is accordingly the equivalent of what it would have been if it had read, "would affect the concerns of interstate or foreign commerce," or Hwould affect the affairs of interstate or foreign commerce." The word "affect" is a. term meaning to have an affect upon, to influence, to act upon, to pro duce an effort or change upon, to operate on, to act on, to concern, to vary, to promote. The tenn, "interstate commerce," means "inter course for the purposes of trade in any and all its forms, including the transportation, purchase, sale and exchange of commodities be tween the citizens of different States. Commerce includes ,but is broader than trade, traffic, or transportation." 12 C. J. Page 6; also every dealing which contemplates and causes an impo;tation into the State, either of goods, of persons, or of information," 12 C. J. Page 2L Accordingly this proposed dam and works "would affect the in terests of interstate commerce" if it would have an injurious effect upon the transportation, purchase, sale, or exchange o( commodities between citizens of Virginia and of other States, or upon the in1porta tion into or out of the State either of goods, persons, or information. And it would operate injuriously upon such commerce if it would postpone until a later time the occurrence of transactions of commerce which would have otherwise occurred at an earlier tin1e; or if it would increase the expense of any transaction of commerce; or if it would increase the time consumed in the consummation of any act of com merce; or if it would decrease the aggregate value of all interstate commerce during any specific period of tiine; or if it would decrease the profit to be derived from any particular transaction in interstate commerce. We sub~1it that very clearly the erection of the dam originally The Garden Club of Virginia vs. Virginia Public Service Co. 11
applied for, or even of the dam covered by the an1ended application, would affect injuriously, or operate injuriously upon interstate com merce. We point specifically to its effect as proved upon the inter state upon State Highway Route No. 338; to its effect upon the im portation of construction materials from other States for the con struction of the plant of the Rockbridge Company, Inc.; to its effect upon the importation of raw materials for fabrication by Rockbridge Company, Inc.; to its effect upon the exportation of fabricated pro ducts by Rockbridge Company, Inc.; and to its effect upon the inter state transportation of goods over the spur track of the C. & 0. Rail way Company. We submit that the effect of the erection of the dan1 on cost, volume, profit, and time of consummation of various acts of commerce herein referred to is manifestly material. Concluding the argument on this first question we call the atten tion of the court to the fact that in the first part of sub-division (c) it is especially provided that there shall be included among "waters of "the State" streams which are used or suitable for use "for the trans portation of persons or property in interstate or foreign commerce," whereas the second part, which we contend has been incorrectly con strued by the Commission, is expressly provided to cover streams "other than those above mentioned in this sub-division (c)." Yet the Commission gives to the second part a n1eaning making it applicable to the various streams referred to in the first part, and expressly stated by the legislature not to be intended to be referred to by it in the second part. We further submit that the legislature was entirely familiar with the fact that "interstate or foreign commerce" was a much broader expression than the expression, "the transportation of persons 9r property in interstate or foreign commerce.". It used the latter expression in the first part of sub-division (c) and did not usc the latter, but instead used the forn1er, in the second part of sub division (c). It is therefore manifestly improper for the State Cor poration Commission to give to the phrase, "interstate or foreign com merce,'' used in the second part, the restricted meaning the phrase not used in that part by the legislature but only used by it in the first part. · The State Corporation Commission does not give and could not give any reason for this singular re-writing by it of the language of the legislature, so as to hold it meant to refer only to "transportation in interstate and foreign commerce on the stream or on streams into 12 The·Garden Cl-ub of Virginia vs. Virginia P-ublic Service Co.
which it flows" when it deliberately selected and used the term "inter state commerce" of all kinds, however carried on.
CONCLUSION
It is submitted that the order dismissing the application should be reversed. The petitioner pray~ that an appeal may be granted to it and that such order shall be reversed.
THE GARDEN CLUB OF VIRGINIA.
By CHRISTIAN & BAYLOR, Its Attorneys.
I, A. D. Christian, do hereby certify that I, as a duly licensed At torney at Law now qualified and practicing in the Supreme Court of Appeals of Virginia, and that in my opinion this appeal should be granted and the propriety of the entry of the order mentioned in the· within petition should be reviewed, and the order should be reversed. Dated at Richmond, Virginia, this 12th day of September, 1929.
A. D. CHRISTIAN, Attorney at Law.
VIRGINIA: In the Supreme Court of Appeals held at the·Court House thereof, in the City of Staunton on Thursday the 12th, day of September, 1929.
Upon the petition of the Garden Club of Virginia, an appeal is allowed from an order of the State Corporation Commission of Vir ginia entered on the 24th day of July, 1929, in the ex parte cause, then therein pending of Virginia Public Service Company, upon an application to construct a dam across North River, at the northern end of Goshen Pass; provided the petitioner or some one for it shall enter into bond before the said Corporation Commission, with security, in the penalty of Five Hundred Dollars, ($500.00), conditioned as the law directs.
A Copy, Teste:-
H. H. WAYT, Clerk. The Garden Club of Virginia 7.JS. Virginia Public Ser'l--ice Co. 13
1* *COMMONWEALTH OF VIRGINIA
STATE CORPORATION COMMISSION
Proceedings before the State Corporation Commission in the City of Richmond, the twenty-fourth day of July, 1929.
CASE 3835
Be it remembered that heretofore, to-wit, on the 21st day of Jan uary, 1929, Virginia Public Service Company filed its application be fore the State Corporation Commission of Virginia for· a license under Chapter 424, Acts of Assembly of Virginia of 1928, to con struct and operate a dam across North River, in Rockbridge County, Virginia, which proceeding is styled
VIRGINIA PUBLIC SERVICE COMPANY,
Ex Parte: Upon an application to construct a Dam .across North River at the Northern end of Goshen Pass and thereupon certain proceedings were had thereon as are hereinafter set forth in the several orders, and the opinion of Epes, Chairman (which has been adopted by the State Corporation Commission for and as a statement.of all the facts upon which the action of said Com mission in said proceeding was based, which are essential for the proper decision of said proceeding upon appeal) :
2* *OPINION OF EPPES, CHAIRMAN, WHICH IS ADOPTED BY THE STATE CORPORATION COMMIS SION AS AND FOR A STATEMENT OF ALL THE FACTS UPON WHICH THE ACTIO.N APPEALED FROM WAS BASED, WHICH MAY BE ESSENTIAL FOR THE PROPER DECISION OF THE APPEAL. 14 The Garden Club ofVirginia vs. Virginia Public Service Co.
3* *VIRGINIA PUBLIC SERVICE COJ\tiPANY Case No. 3835
Ex Parte: Upon' an application to construct a dam across North River at the Northern end of Goshen Pass
OPINION: EPPES, CHAIRMAN
The Virginia Public Service Company, a corporation incorporated under the laws of Virginia for the purpose of generating and dis tributing electric current, has filed with the State Corporation Com mission of Virginia its application under the Virginia Water Power Act (Chap. 424, Acts 1928) for a license to construct and operate a dam across North River, in, and near the northern end, of Goshen Pass, and about 1200 feet below the junction of the Big and Little Calfpasture Rivers, in Rockbridge County, Virginia. The Big Calfpasture .River and the Little Calfpasture River rise in Augusta County, in the eastern ridges of the Alleghany lVIountains, on the western and eastern sides, respectively, of the Great North Mountain; and flow in a generally southward direction between the ridges of the Alleghanies into Rockbridge County. Near the town of Goshen the Big Calfpasture turns eastwa~d, and flows around the southern end of the Great North Mountain to its confluence 4* with the Little Calfpasture just at the western base of the Little North Mountain, one of the most easterly ridges of the Alleghanies. The stream formed by the junction of these two rivers is called North River. Just below the fork it breaks abruptly through Little North Mountain into the valley lying between the Alleghanies and the Blue Ridge; and flows in a gen~rally southeasterly direction along this valley until it flows into the James at Balcony Falls, where the James breaks through the Blue Ridge and flows on eastward to Chesapeake Bay .. The water gap through which the North River flows through Little North Mountain, known as Goshen Pass, is a narrow mountain gorge about three miles long, noted for its wild natural beauty, being especially beautiful when the rhododendron along the river and moun tain sides is in bloom. . The North River from the junction of the Calfpasture Rivers for some miles below Goshen Pass is a comparatively small, shallow, swift flowing, rocky mountain stream of very variable stream flow. · According to testimony introduced by the applicant the stream flow The Garden Club of Virginia vs. Virginia Public Service Co. 15 of North River at the proposed dam site in the northern part of Goshen Pass is as follows in cubic feet per- second:
10 per cent of the time less than 68.5 c. f. s. 11 per cent of the time from 68.5 to 100 c. f. s. 18 per cent of the time from 100 to 150 c. f. s. 19 per cent of the time from 150 to 250 c. f. s. 12 per cent of the time from 250 to 350 c. f. s. 12 per cent of the time from 350 to 500 c. f. s. 12~ per cent of the time from 500 to 1000 c. f. s. 4 per cent of the time from 1000 to 2000 c. f. s. 1 ~ per cent of the time from 2000 to 4500 c. f. s.
5* *There are two small streams, or runs, that flow into North River in the pass; but the stream flow at the Iowen. end of the pass (Wilson Spring) is not very much greater than the dam site. So far as is disclosed by the record and by the examinations made by this Commission, no part of the Big Calf pasture, ·the Little Calf pasture, or the North River for some miles below Goshen Pass is now, or ever has been, navigable by boats of any kind or even flotable in high water; nor is there any intimation by any party to these proceedings that these streams are, or ever have been, navigable or flotable. A careful examination of the Acts of the General Assembly from the earliest Colonial period to the present time fail to disclose any act, which by any possible construction can be deemed to have declared any part of the Big Calf pasture, Little Calf pasture, or the North River above Cedar Grove Mill (some 6 miles below Goshen Pass) navigable. An act of April 4, 1838, entitled, "An Act Incorporating the North River Navigation Company" (Acts 1838, p. 150), and an act of March 19, 1841 (Acts 1840-41, p. 97) under the same title, author ized opening and improving the navigation of North River from Bal cony Falls to Cedar Grove lVIill, some miles above Lexington and about six miles below the southern end of Goshen .Pass. Under "6* these acts North *River was canalized as far as East Lexing ton, but nothing was done toward its improvement above that point. .. The original application was for a license to construct and oper ate a concrete dam about 450 feet long, which would raise the water 16 The Garden Club of Virginia vs. Virginia Public Service Co. at the dam 63 feet above the river bed, and the water in the reservoir to a level of 1390 feet above sea level. Such a dam would back up water in the Big Calfpasture River a distance of 5.2 miles above its junction with the Little Calfpasture River to a point above the main line bridge of the Chesapeake & Ohio Railway near the town oi Goshen, and in the Little Calfpasture River a distance of 6.8 miles above its mouth. But to avoid the opposition of the Rockbridg~ Com pany, or possibly the added expense to which the applicant would be put because of damage to the property of the Rockbridge Company, the applicant amended its petition before the hearings on it began. The Rockbridge Company, a new Virginia Corporation which has been incorporated for the purpose of manufacturing woolen tex tiles, has purchased four tracts of land near the town of Goshen, along or near the spur track of the Chesapeake & Ohio Ry. Co., here inafter mentioned; and has contracted for the erection thereon of the buildings for a large manufacturing plant, which will, when cmn pleted, cost several million dollars. A part of this land which the Rockbridge Company has acquired and upon which it proposes to con- struct its plant is so located that it would be flooded by the 7* *waters of the Big Calfpastttre River if raised by a dam in Goshen Pass to the 1390 foot level. While the recor.d is not entirely clear upon the point, it would appear that though the land actually occupied by the proposed buildings of the Rockbridge Com pany would not be covered by the water in the reservoir when stand ing at the 1390 foot level, yet the foundations of the proposed build ings would be seriously affected by the impregnation of the earth with water seeping from the reservoir, and would require a special and more expensive construction than otherwise. But if the water in the reservoir of the proposed clam should not be raised above the 1380 foot level, the property and proposed buildings of the Rockbridge Company would not be affected by the proposed dam. Because of these facts the Rockbridge Company vigorously op posed the construction of the dam proposed in said original applica tion. After some negotiations 1:he Rockbridge Company agreed with the applicant to withdraw its opposition. if the. applicant would so amend its application as to provide for the construction of a dam which would not at any point raise the water in the reservoir to a level above the 1380 foot level. In pursuance of this agreement the applicant abandoned its orig inal application and filed an amended application, in which it applies for a license to construct and operate, at the same location The Garden Club of Virginia vs. Virginia Public Service Co. 17
8* specified in its original *application, a concrete dam approxi- mately 450 feet long and 56.5 feet high, so constructed that it would raise the level of the water at the dam to a maxitnum height of 53 feet above the river bed, and the water in the reservoir to a level not exceding at any point 1380 feet above sea level. The dam pro posed in the amended application would back up water in the Big Calfpasture River for a distance of 4.5 miles and in the Little Calf pasture River for a distance of 5.7 miles. Both the original and the amended application set forth that it is proposed to construct a power house on the west side of North River, at Wilson Spring, which is just below the southern end of Goshen Pass; and to conduct the water from an intake located at the eastern side of the dam, at the 1350 foot level, to the power house through a concrete pressure conduit 10 feet in diameter. According to the plans filed with the amended application, the total length of this conduit from the dam to the surge tank just above the power house at Wilson ·spring will be 10,300 feet, all of which will be in tunnels . through the mountain, except where it crosses from the ea~t to the west side of the river gorge just below the big bend of the river in Goshen Pass, and about 5,000 feet below the dam n1easured along the line of the conduit. Here the conduit will be carried across the river gorge to the entrance of the tunnel on the west side of the river on a steel girder bridge and ·concrete piers. The exposed portion of the conduit where it crosses the gorge will be about 370 feet long and 75 feet above the river bed. 9* *The pond area and storage capacity of the dam proposed in the amended application will, when the water stands at the designated contottr elevations above sea level, be as follows :
Storage Capacity Between · Contour Pond Area Elevation 1350 and Ele Elevation Sq. Feet vation Shown-Cubic Ft. 1350 8,200,000 0 1360" 26,700,000 175,000,000 1370 42,700,000 522,000,000 1380 59,700,000. 1,035,000,000
What the pond a·rea of a dam raising water to the 1390 foot level would be, does not appear from the record ; but the storage capacity, above the 1350 foot level, of such a dam would certainly materially exceed 1,632,000,000 cu. ft., which is more than fifty per 18 The Garden Club of Virginia 'i'S. Virginia P·ublic Service Co. cent greater than a dam raising the water only to the 1380 foot level. The dam proposed in the atnended application will provide an average static head of water above the turbines in the power house of 225 feet, and have a constant controlled capacity of 3,000 horse power, as compared with a constant controlled capacity of 3,340 horse power for the dam proposed in the original application, and as compared with 1230 horsepower which it is estimated is available for ninety per cent of the time from the uncontrolled flow of North River at this point. The Board of Supervisors of Rockbridge County, certain civic organizations, a number of persons living in Rockbridge Coun- t 0* ty, some of them owning land which it is *proposed to take for the proposed development, and a number of other persons in teryened, asking that a license be granted to the applicant to construct the dam proposed in its application. Major A. Willis Robertson, Chairman of the Virginia Commis sion of Game and Inland Fisheries, appeared in opposition to the granting of the license for the construction of said dam unless ade quate provision is made for the protection of fish in the reservoir area, the public guaranteed the right to fish in the impounded waters, and the scenic beauty of Goshen Pass preserved. A very large number of Garden Clubs and other Women's Organ izations throughout the State of Virginia, and a number of indi viduals, male and female, filed petitions of intervention opposing the granting of a license to the applicant to construct a dam in Goshen Pass, alleging as their chief ground of objection that the construction in Goshen Pass of any dam and works of the nature proposed would destroy the scenic beauty of Goshen Pass, and shoulq not be permitted by the State of Virginia. For convenience we shall hereafter refer to this group of objectors, including the Garden Clubs and others, merely as the Garden Clubs. The Virginia Water Power Act (Chapter 424, Acts 1928) does not require that a license shall be procured for the construction 11 * or reconstruction of a dam, or any of *the works incident thereto, unless it be proposed to construct or reconstruct a dam across some of the "Waters of the State" as defined in the act. It is not entirely plain just what the legislature intends to and does include under the term "dam" as used in the Virginia Water Power Act; but for the purposes of this proceeding we shall give it its widest possible significance, and include thereunder the concrete datn itself, the reservoir formed by it, and the conduit leading from it to the power house. The Garden Club of Virginia vs. Virginia Public Service Co. 19
Sec. 1 of the Virginia Water Power Act defines "Waters of the State" as follows :
"The term "Waters of the State" as used in this Act shall mean: " (a) Any stream, or that portion of any stream in this State which prior to the passage of this act has been declared navigable by any unrepealed statute of this State, or "(b) Any stream or that portion of any stream in this State, the bed of which is owned by the Common wealth, or " (c) Those parts of streams or other bodies of water which either in their natural or improved condition, not withstanding interruptions between the navigable parts of such streams or waters by falls, shallows, or rapids, com pelling land carriage, are used or suitable for use for the transportation of persons or property in interstate or for eign commerce, including therein all such interrupting falls, shallows, or rapids, and also " (d) Any stream· or part thereof in this State other than those above mentioned in this sub-division (c) in which ·the construction of a dam or works authorized as authorized by this act would affect the interests of inter state or foreign commerce."
12* *The· matter here inclu~ed under " ( d" is in the Act in- dueled under " (c)"; but is here put into a separate paragraph designated " (d)" for more ready reference. · The jurisdiction of the State Corporation Commission to grant or refuse an application for the construction of a dam depends upon whether the stream, or portion of the stream, across which it is, pro posed to construct or reconstruct the dam are "Waters of the State" as defined in the Act; which depends upon facts, many of which are intimately related to the merits of the application. Though from its general knowledge of the situation and an examination of the appli cation the Commission entertained serious doubts as to whether the streams involved in the application were "Waters of the State'' as de fined in said act, it permitted the applicant to proceed with its testi mony in the order in which it desired to present it; and for tpe con venience of a large number of persons, many of them women, who on their own initiative desired to testify either in opposition to or in favor 20 The Garden Club of Vir9:inia ·vs. Virginia Public Service Co. of the granting of the license, the Commission, with the consent of the applicant, permitted such individuals to introduce their testimony at an early stage of the proceeding. After several days had been thus occupied in the taking of testimony, when it became apparent that none of the parties were proceeding to prove the facts neces- sary for a determination of whether the streams involved are 13* *"Waters of the State," the Commission of its own motion required that the introduction of further testimony upon the merits of the application be deferred until the question of the jurisdic tion of the Commission to grant or refuse the license had been de termined; and adjourned the hearing until a later date for the taking of testimony and hearing of arguments pertinent to the question of jurisdiction. The only question now under consideration is, whether under the Virginia Water Power Act the State Corporation Commission of Vir ginia has the power to either grant or refuse a license to the Virginia Public Service Company to construct the proposed dam and other works set forth in its amended application, which, as above noted, de pends upon whether the waters across which the applicant proposes to construct a dam are "Waters of the State" as defined in said act. At this adjourned hearing counsel for applicant stated that it was willing to consent to the Commission's taking jurisdiction and pro ceeding to a determination of the matter without raising the question of jurisdiction, if the Commission was of opinion jurisdiction could be conferred by consent; and that it had submitted itself to the juris diction of the Commission and did not desire to be understood as either attempting to establish or refute the jurisdiction of the 14* Commission; but that as the *Commission itself raised the question of its jurisdiction and indicated that it desired that all facts bearing on the subject of its jurisdiction be presented to it, it would present such facts bearing on the subject as it had. The ap plicant then filed several affidavits from persons who have resided for years in the vicinity of Goshen Pass to the effect that North River from th~ junction of the Big and Little Calfpasture Rivers to below Wilson Spring is not either a navigable or flotable stream, and certain grants from the Crown Commonwealth and other data to show that the State does not own the bed of North River from above the pro posed dam to far below Wilson Spring. Mr. Wm. J. Ayers, who owns a large tract or'Iand near Goshen, a part of which will be taken for the proposed development, inter vened and asserted that the State Corporation Commission is without jurisdiction to either grant or refuse the license applied for because The Garden Club of Virginia vs. Virginia Public Service Co. 21
( 1) The streams here involved are not "Waters of the State" as de fined in the Virginia Water Power Act, and (2) Because sa~d Act is unconstitutional. This intervener, however, states that if the Com mission has jurisdiction in the premises, he joins in the prayer of the applicant that it be granted a license to construct the proposed dam. 15* *In the view which we take of the matter we deem it un- necessary to examine into the constitutional question raised by counsel for Mr. Ayers. The Garden Clubs ( i. e, those opposing the construction of a dam in Goshen Pass) filed a note of argument contending that Virginia Water Power Act is constitutional; and that the streams, or parts of streams, here involved are "Waters of the State" as defined in the , Virginia Vvater Power Act under sub-divisions "a," "b," and "d" of the definition of "Waters of the State" as above quoted; and intro duced certain evidence which it claims supports their contention that the streams here in question are "Waters of the State" under sub division "d" ,of said definition. Counsel for the Garden Clubs first contends that under clause "a" of the definition of "Waters of the State" above quoted, "if any part of a stream has been declared navigable by unrepealed statute of the State, then the whole stream, including the parts not declared navigable would constitute "\Vaters of the State" ... and "the con struction of the proposed dam above a portion of North River de clared navigable, is notwithstanding the location above the portion declared navigab~e, a construction "across" a portion of the river de clared navigable." In effect this contention is that clause "a" shall be construed to read :
16* *"Any stream in this State any portion of which prior to the passage of this act has been declared navigable by any unrepealed statute of this State."
The answer to this is that the legislature did not use this lan guage, but has used language which in its ordinary and usual ac ceptation makes it clear that where the whole of a stream has not been declared navigable, then only such part of it as has been declared navigable is included within the definition "Waters of the State" as defined in clause "a." The next contention of counsel for the Garden Clubs is that the bed of the stream across which the applicant proposes to construct its dam is owned by the Commonwealth; and hence this Commission 22 The Garden Club of Virginia vs. Virginia Public Service Co. has jurisdiction of the subject matter under clause "b" of the ·defini tion of "V\T aters of the State" quoted above. The streams here in question are neither streams in which the tide flows and ebbs, nor navigable or flotable streams; but the title to the beds thereof is vested in the Commonwealth unless the Con1monwealth has granted its title thereto to private individuals or otherwise re linquished its title thereto. The evidence introduced by the several parties to these proceed ings was insufficient to show \1\'hether the Commonwealth had granted to private individuals its title to the beds of those portions of 17* these streams which *will be crossed by the proposed dam (in- cluding that term also the reservoir and conduit) ; and the Commission has since the last hearing caused an exhaustive exanlina tion to be made by its engineering staff under the personal supervision of one of the Commissioners into this phase of this matter. This ex amination included the records in the Land Office in Richmond, and in the Clerks' offices of Orange, Augusta, and Rockbridge Counties, and has greatly delayed the Commission in passing upon the questions of jurisdiction here raised. The portion of the proposed works which crosses North River furtherest down stream is the pressure conduit, which is carried over and across the river from the East to the West side just below the big bend of the river in Goshen Pass, approximately midway (measured along the line of the conduit) between the dam site and the power house at Wilson Spring. These examinations show that all portions of .North River, the Big Calfpasture, and the Little Calfpasture from below where the said conduit crosses North River to above the points to which the proposed dam will back up water in these streams are either wholly included within the boundaries of the below mentioned grants, or on both sides constitute the boundary of one of the below mentioned grants. N ~me of these grants in terms ex-cept or reserve any part of the beds of rivers or other streams from the grant therein made. 18* *North River from a point son1e distance below the south end of· Goshen Pass to a point a short distance above the pro posed dam site lies wholly within the boundaries of a grant frotn the Commonwealth to John Barclay, dated March 5, 1796, recorded in Grant Book 33, p. 478, in the Land Office in Richmond, a copy of which was- introduced in evidence by the applicant. This grant lies on both sides of North River and includes 30,000 acres, exclusive of 1806 acres "of prior claims which ·having a preference by law to the The Garden Club of Virginia vs. Virginia Public Service Co. 23
warrants and rights upon which this grant is founded liberty is re served that the same shall be firm and valid and may be carried into grant or grants and this grant shall be no bar in either law or equity to the confirmation of the title or titles to the same." But the grant gives neither the location of these prior claims nor the names of the claimants. The original plat of the survey upon which this grant issued, dated November 7, 1794, is preserved in the Land Office, and a copy thereof is hereby made a part of the record in this proceeding. On this plat the locations of these prior claims are roughly noted by writings on the face of the plat such as the three below quoted which are the only ones which by any possibility whatever could include or touch any part of North River: "Joseph l(ennedy's Location, 200, acres," "lVIcGraw & Lewis' Survey of 800 acres," "William 19* Davis' Location of 150 acres." There is *nothing further on the plot to indicate the location or boundaries of these reser- vations. · By patent dated April 15, 1787, recorded in the Land Office in Grant Book 10, p. 97, the Commonwealth of Virginia granted to "Nicholas Raquet, assignee of Samuel 111 cGraw & Charles Lewis, . who was assignee of John Hawkins," a tract of 821 acres which lies as indicated on the Barclay plat by the notation "McGraw & Lewis Sur vey 800 acres." A copy of this grant is made a. part of the record in this proceeding. This survey, which is evidently the satne as noted on the Barclay plat, neither includes nor touches any part of North River. A very careful and exhaustive examination of the records in the Land Office at Richmond fails to disclose any grant that has issued carrying into effect said locations of Wm. Davis and Jos. Kennedy, or any data from which any description of these locations can be gotten; and an exhaustive examination of the entry books, surveyors' books, and deed books of Rockbridge and Augusta Counties fail to disclose any description thereof, though the Commission has been able to locate but few of the entry books and surveyors' books of Rockbridge County prior to 1800. The notation of the location of the Jos. l(ennedy 200-acre 20* location is along the Northern line of the Barclay *survey and so far east of the line on the plat denoting the river that it would seem to show beyond question that it did not touch the river. The topography of the land on the east side of North River frotn where the north line of the Barclay survey crosses .North River to the south end of Goshen Pass, as shown by the United States Topograph- 24 The Garden CZ.ub of Virginia ·vs. Virginia Public Service Co.
ical map whic-h is filed in and made a part of the record in these pro ceedings, also renders it very improbable that the J os. l{ennedy 200- acre location touched or included any part of North River in Goshen Pass. For it to have done so would have required that the l{ennedy location be wholly located on the mountain, while at the same time this location was made there were thousands of acres of unpatented valley land lying near by. We find that the Joseph l{ennedy location did not touch or include any part of North River. The notation of the Wm. Davis 150-acre location is written along the west side of the line demarking the river, and extends from near the south line of the Barclay plat up the river line for about one-third of the. straight line distance to the north line of the plat. In 1755, a patent issued to William Porter for 107 acres, which lies inside the Barclay survey and includes all the land lying on the west bank of North River fron1 a point about 10 poles below \tVilson Springs to the south line of the Barclay· survey. The calls of the Barclay 21 * survey and patent *recognized this William Porter survey and call for the lines thereof. In 1814 a patent was issued to Daniel Strickler for 67 acres on the west side of North River which included all the land on the west side of North River from a point a very short distance above Wilson Spring to the north line of the said patent to William Porter, which had been at that time acquired by Daniel Strickler; and· in 1833 a patent issued to Daniel Strickler for 150 acres which ran up into Goshen Pass to the big bend of the river, and included all the land along the west side of North River from the line of the Daniel Strickler pat.ent of 1814 to a point above where the proposed conduit would cross the river. This 150-acre tract is roughly wedge shaped, wide at its upper end and only about 13 poles wide at the lower end, the river being its eastern boundary. Its west ern boundary runs along the side of North Mountain from the line of Strickler's 67-acre tract to the big bend of the river in Goshen Pass. From these facts it would appear that the Wm. Davis location was bounded on the east side by North River and possibly extended up into Goshen Pass; but this is immaterial, because if it did, the entry was never carried into grant, and the land embraced therein was sub sequently patented to Daniel Strickler in the two grants above men- tioned. 22* *The conduit crosses from the east to the west side of the river at a point at which the river is the eastern boundary of said 150 acres granted to Daniel Strickler in 1833, and the conduit .tunnel on the west. side of the river lies in this tract. The Garden Club of Virginia ·vs. Virginia Public Service Co. 2~
The northern line of the Barclay grant where it crosses North River is the southern line of a grant from the Crown to Wm. Bev erly for 10,000 acres, dated August 30, 1743, recorded in Patent Book 21, p. 440 in the Land Office in Richmopd. North River from the point at which the Barclay line crosses the river to the confluence of the ,Big and Little Calfpasture Rivers, the Big Calfpasture for some distance above the fork, and the Little Calfpasture River fron1 its junction with the .Big Calfpasture River to a point some distance above the furthest point to which the proposed dam will back up water, lie wholly within the boundaries of the said 10,000-acre grant to \Vm. Beverly. The Big Calfpasture River, for the whole distance from its junction with the Little Calfpasture River to a point far above the point, near Goshen, to which the proposed dam will back up water, either lies wholly within the boundaries of the below listed grants, or on both sides constitute the boundary of one of the below listed grants:
~3* *Date of Acres Location Book in which Grantee Grant Granted On Ri·ver Recorded VVm. Beverly Aug. 30, 17 43 10,000 Both sides Patent Bk. 21, p. 440 rohn Gay Mar.26, 1796 35 Both sides Grant Bk. 33,p. 537 .~obt. Gay · Mar. 25, '1796 172 Both sides Grant Bk. 34, p. 90 r·ohn Barclay Mar. 5, 1796 30,000 South side Grant Bk. 33,p.478 VIathew.Shaw Aug. 28, 1824 10 South side Grant .Bk. 73,p.336 Iames McDowell Dec. 14, 1796 624 North side Grant Bk. 36,p.208 ~¥ m. Weaver Nov. 29, 1828 60 Both sides Grant Bk. 78, p. 19 Iohn Dunlop Sept. 26, 1760 125 Both sides Patent Bk. 34, p. 730 rames Patton & Jno. Lewis Aug. 30, 1743 10,500 Both sides Patent Bk. 20, p. 556
The grants along the Big Calfpasture are listed in the order in which the land granted thereby lies as you proceed up the river. Both the Mathew Shaw grant of 1824 and the Wm. Weaver grant of 1828 overlap on prior grants above listed, but each conveys some land on the river not theretofore granted. Of the above mentioned grants the only ones that were formally · introduced in evidence by a~y of the parties to this proceeding are the Barclay 30,000-acre grant, the David Strickler 67 and 150-acre grants, and the William Porter 107-acre grant. The others have been disclosed by the search the Commission has made of the records 26 The Garden Club of Virginia"-'~· Virginia Public Service Co.
by its staff since the last hearing, and copies thereof are hereby made a part of the record in this case. None of the grants above mentioned contain any reservation of title to or exception of the streams or beds of the streams included within or constituting boundaries of the grant. Under the common law in Virginia, except where the 24* grant itself contains express reservation of the stream or *the bed of the stream, a grant from the Crown or Commonwealth conveys to the grantee the title to the bed of all non-navigable streams above tidewater which are included within the boundaries of the grant; and where a stream constitutes one of the boundaries of the grant it conveys title- to the bed of the stream to the middle of the. stream. Crenshaw vs. Slate Ri'l!er Co., 6 Rand 245; C onunonwealth 'i-'S. Garner, 3 Grattan 655. ·
"Where the Commonwealth, having title to lands lying on both sides of a water-course not navigable, grants the land lying on one side thereof, and bounded thereby, it is universally admitted, that such grant carries with it the title to a n1oiety of the bed of the water course." (Hayes Ex' or. v. Bowman, 1, Rand. 419.)
Up to 1792 there was no statute in effect in Virginia which in any ':vay modified in this respect the common law rule; and it is clear that all these grants made by the Crown of England or by the Com monwealth prior to 1792 conveyed the title to the beds of all streams included within the boundaries of the grant, and where the strean1 is the boundary of the grant that the grant conveyed the title to the bed of the stream to the middle of the stream. The first act passed under the Cmnmonwealth for the granting of waste and unappropriated land was "An act for establishing a Land Office and ascertaining the terms and manner of granting waste and unappropriated lands passed in 1779 (See 10 I-I etting's Statutes 25* at La.rge, p. 50). This *act contained no reservation whatever .of the beds of streams included within or forming the bound aries of a grant, nor did it except from the land upon which entries might be made any unappropriated lands within the boundaries of the ' State. This Act specifically recognizes and confirms the prior grants made by the Crown of England and declared null and void all reser vations and conditions therein: The Garden Clttb of Virginia vs. Virginia Public Service Co. 27
uBe it enacted that the reservations of royal mines of quitrents, and all other reservations and conditions in the patents or grants of land from the Crown of England or Great Britain, under the former govermnent, shall be, and are hereby declared null and void ; and that all lands thereby respectively granted, shall be held in absolute and uncondi tional property to all intents and purposes whatsoever, in the same manner with the lands hereafter to be granted by the Commonwealth by virtue of this Act, and· no petition for lapsed land shall be admitted or received for on account of any failure or forfeiture whatsoever, alleged to have been made or incurred after the twenty-ninth day of Sep tember, in the year of our Lord 1775." (10 Hcning's Stat utes at Large,' p. 64.)
In 1780, however, the Legislature became cognizant of the fact that the Act of 1779 had thrown open to entry certain lands "in the eastern parts of this Commonwealth" which under the Colony had ''been used as a common to all the good people thereof"; and passed the following act :
"An act to secure to the public certain lands heretofore held as common. "1. WHEREAS certain unappropriated lands on the bay, sea, and river shores, in the eastern parts of this Cmn monwealth, have been heretofore reserved as common to all the citizens thereof, and whereas by the act of general as sembly entitled "An act for establishing a land office, and ascertaining the terms and tnanner of granting waste and 26* unappropriated lands," no reservation *thereof is made, but the same is now subject to be entered for and appropri ated by any person or persons; whereby the benefits for merly derived to the publid~ therefrmn, will be monopolized by a few individuals, and the poor laid under contribution for exercising the accustomed privilege of fishing: Be it therefore enacted by the General AssemblJ', That all un appropriated lands on the bay of Chesapeake, on the sea shore, or on the shores of any river or creek in the eastern parts of this Commonwealth, which have remained un granted by the former government, and which have been used as common to all the good people thereof, shall be, and 28 The Garden Club of Virginia vs. Virginia Public Service Co.
the same are hereby excepted out of the said recited act, and no grant issued by the register of the land office for the same, either in consequence of any survey already n1ade, or which mav hereafter be made, shall be valid or effectual in law, to p;ss any estate or interest therein." (10 Hening's Statutes at Large, p. 226.)
\Vhile this act makes no reservation or exception of the "bed of any river or creek," it is so intimately connected with the hi~tory of the legislation on this subject that it has been cited in full. On December 17, 1792, the General Assembly passed "An Act for reducing into one the several acts concerning the land office; as certaining the terms and manner of granting waste and unappropriated lands," etc. ; which act provided that it should be in force from and after the passsage thereof, and repealed "all and every act and acts, clauses and parts of acts within the purview of this act." The act of 1792 provides for no reservation or exception from grants made of lands in the ltVestcrn parts of the Commonwealth; but as to grants in "tlte Eastern parts of the C ommonwealtlt,'' Sec. 6 pro vides as follows:
27* *"6. Pro•vided also, That all unappropriated lands on the bay of Chesapeake, on the sea shore, or on the shores of any river or creek,. and the bed of any river or creek in the eastern parts of this Comtnonwealth, which have remained ungranted by the forn1er government, and which have been used as a common to all the good people thereof, shall be, and the same are hereby excepted out of this act ; and no grant issued by the register of the land office for the same, either in .consequence of any survey already made, or which may hereafter be made, shall be valid or effectual in law to pass any estate or interest therein." (Statutes at Large, N. S., Vol. 1, 1792-5, p. 65.)
This is the first act in Virginia providing for the reservation of the title to the "bed of any river or creek;' contained within the bound aries of a grant; and it is to be noted, applies only to streams in "the eastern parts of this Commonwealth which have remained ungranted 1.1Y the former government and ·which ha·ve been used as a common to all tlze good f>c~plc thereof." On January 15·, 1802, the General Assembly passed the following act relative to grants in (~tlte 'lues tern parts of the Commonwealth": The ~arden Club of Virginia vs. Virginia Public Service Co. 29
Chap. 7.-An act to amend the sixth section of the act for reducing into one of the several acts concerning the land office, ascertaining the terms and manner of granting waste and unappropriated land, for settling the titles and bounds of lands, directing the mode of processioning, and pre scribing the duty of surveyors. "1. Whereas it hath been represented to this present general assembly that many persons have located, and lay cllaim in consequence of such location to the banks, shores, and beds of the rivers and creeks in the western parts of this commonwealth, which were intended and ought to remain a common to all the good people thereof : 28* *"2. Be it therefore enacted, That no grant issued by the register of the land office for the same, either in con sequence of any survey already made, or which may here after be made, shall be v;;tlid or effctual in law to pass any state or interest therein. "3. This act shall cotnmence and be in force from and after the passing thereof." (Statutes at Large,· 1796- 8102, Vol. II, p. 317.)
Section 6 of the Act of 1792 relating to grants in •,• the eastern partsn and the above quoted Act of 1802 relating to grants in "the western parts,, of the Commonwealth remained in effect unchanged until January 1, 1820. On January 1, 1819, the General Assembly passed "An Act to reduce into one act, the several acts concerning the Land Office," etc., which is carried into the Revised Code of 1819 as Chapter 86. This act provides that it shall be in force from and after January 1, 1820, and expressly repeals "all and every act and acts, clauses, and parts of acts, within the purview of this act." Section 6 of this act pro vides as follows :
"6. Provided, also, That all unappropriated lands on the Bay of Chesapeak~, on the sea shore, or on the shores of any river or creek, and the bed of any river or creek in this Commonwealth which have remained ungranted by the former government, and which have been used as a common to all the good people thereof, shall be and the same are hereby excepted out of this act; and no grant issued by the regis~er of the land office for the same, either in conse- 30 The Garden Club of Virginia ·vs. Virginia Public Service Co.
quence of any survey already made, or which may here after be made, shall be valid or effectual in law, to pass any estate or interest therein." ( R e·vised Code of 1819, Vol I, p. 323.)
29* *By this act the reservation and exception from grants of the beds of rivers and creeks in all parts of the Commonwealth (Eastern and Western) is made the same as is provided by the Act of 1792 for the beds of rivers and creeks in the eastern part of the COin monwealth, i. e., only the beds of rivers or creeks uwhich ha·ve been used as a common by all the good people" of the Commonwealth are excepted from the grant. · On February 16, 1819, the General Assembly of Virginia passed, effective April 1, 1819, an act entitled "An act to explain and secure the rights of owners of shores on the Atlantic ocean, the Chesapeake bay, and the rivers and creeks thereof within this Commonwealth," which is carried into the Revised 'code of 1819 as Chapter 87. The prean1ble and Section 1 of this act, which are the only parts thereof material to the questions here in issue read as follows :
"Whereas doubts exist how far the rights of owners of shores on the Atlantic ocean, the Chesapeake bay, and the rivers and creeks thereof, within this Commonwealth, extend; for explanation whereof, and in order effectually to secure said rights; "1. Be it enacted by the General Assembly, That hereafter the limits or bounds of the several tracts of land lying on the Atlantic ocean, the Chesapeake bay, and the rivers and creeks thereof within this Commonwealth, shall extend to ordinary low water mark; and the owners of said lands shall have, possess, and enjoy exclusive rights and privileges to, and along the shores thereof, clown to ordinary low water mark: Provided, That nothing in this act con tained shall be construed to affect any creek or river, or 30* such part thereof, *as may be comprised within the limits of any survey: And, pro·vided, also, That nothing in this section contained shall be construed to prohibit any person or persons from the right of fishing, fowling, and hunting on ~hose shores of the Atlantic.?cean, Chesapeake bay, and the rivers and creeks thereof, within this Commonwealth, which are now used as a common to all the good people The Garden Club of Virginia vs. Virginia Public Service Co. 31
thereof; nor to repeal the sixth section of an act, entitled, An Act for reducing into one the se~'eral acts concerning the land office; ascertaining the terms and manner of granting waste and unappropriated lands; for settling the titles and bounds of lands, directing the mode of processioning, and prescribing the duty of surveyors, passed the seventeenth day of December, one thousand se~'en hundred and ninety two." Section 6 of Chapter 86 and Chapter 84 of the Revised Code of 1819 remained in effect unmodified until the revision of the Code of 1849. It is by no means clear what the term ((Eastern parts of this Com nwn·wealth" is used in Sec. 6 of the Act of 1792, above quoted, em braces. There is no statutory or judicial definition of the scope of this term so far as we have been able to find. In !vi cad ·v. Haynes, 3 Rand. 33, decided in 1824, the Court treats Sec. 6 of the act of 1792 as applying to Goose Creek just east of the Blue Ridge in Bedford County; but we find no case arising further west in which the Court has been called upon to comment upon whether Sec. 6 of the Act of 1792 was applicable or not. Mr. Minor in his Institutes seems to construe (/Eastern 31* parts of this Common1.uealth" as used in said *Act of 1792 as synonymous with east of the Blue Ridge Mountains, where he says:
'.'At common law the beds of rivers not navigable are always private, and belong to the neighbor riparian pro prietor, each common ad filium jlt11ninis; or, if the same person own both banks, the whole bed belongs to him, sub ject, however, in both cases, to whatever use the public may be able to make of a stream for a public highway for boats or rafts. In Virginia the principle is only so far changed as that by statute the banks, shores, and beds of all streams are reserved which were granted by the State east of the Blue· Ridge after 1780 and west of it after 1802." (11finor' s Institutes, Vo. 2, p. 60.)
Mr. 1\iinor, however, cites no authority for construing uEastern parts of this Con·tmonwealth" as synonymous with east of the Blue Ridge; and, apparently, he has not given this subject his usual careful consideration; for he treats the Act of 1780 as reserving the beds of ------·- ---
32 The Garden Club of Virginia "l!S. Virginia Public Service Co.
the rivers ·and creeks east of the Blue Ridge, when in fact .it was not until 1792. that the reservations of the act of 1780 were extended to include the beds of rivers and creeks (see Acts of 1780 and ·1792 above quoted). In 1780 Virginia extended to the Mississippi River, and in 1792 included all of what is now Vvest .Virginia. From certainly as early as 1752 to the present time the statutes of Virginia hav~ recognized the "ridge of mountains that divides the rivers Roanoke, James, and Potomac from the Mississippi" as dividing the Colony and· the Commonwealth into two distinct divisions; and made differ..; 32* *ent statutory provisions as to uLands on the Eastern waters" and "Lands on the Western waters." .See 6 Hen. Stat. at L., p. 258; 7 Hen. Stat. at L., p. 667; 9 Hen. Stat. at L., p. 118; 10 He11. Stat. at L., p. 35 and p. 237; Acts 1792, Chap. 24,· Acts 1796, Chap. 24 and Chap. 47; Acts 1830-31, p. 87 and 90; Acts 1836-37, p. 9; Acts 1838, p. 16; Acts 1859-60, p. 174 and 176. Also see Code Va., 1919, Sec. 5805, providing a different period of limitation for re entry upon land east and west of the Alleghany Mountains. On the other hands there are very few statutes which treat the ;Blue Ridge as a line of division. The earliest we have been able to find is Chap 98, Acts 1803, which suspends for eight years the opera tion of the statute providing for the processioning of lands on the west side of the Blue Ridge; and the next is Chap. 8, Acts 1836-37, entitled "An act to amend and explain the laws concerni.ng western land titles, and for other purposes." While this last mentioned act deals chiefly with lands lying west of the Alleghanies. and repeatedly recognizes the Alleghanies as dividing the State Into two divisions, Sec. 3 of this act requires that.the circuit judges for "each county sit uated west of the Blue Ridge Mountains" shall at the next term ap point a commissioner to r:eport on the delinquent lands in his county. The three large rivers of Eastern Virginia, the James, 33* Roanoke, and Potomac, all rise in the eastern ridges *of the Alleghanies and flow through the Blue Ridge; and all lands on these rivers and their tributaries west of the Blue Ridge are clearly comprehended in the term u Lands on the Eastern waters." If the Blue Ridge be the dividing line between the uEastrn parts" and the uwestern parts" of the Commonwealth as used in the Acts of 1792 and 1802, then these acts provide different rules of law for different parts of the same stream; whereas if the Alleghanies be the dividing line the application is the same for all parts of the same stream. Further than this none of the historical writers of this period include The Garden Club of Virginia vs. Virgi11ia Public. Service Co. 33 the Valley of Virginia, lying between .the Blue Ridge ~and the Al leghanies, as being in 'JV est or Western Virginia, though some of them do seem to make the three divisions, "Eastern Virginia," "1'he Valley of Virginia," or "The Valley/' and "Western Virginia." ]n view of these facts we thimk it is far frmrn certaili1 that ((East ern parts of this Commonwealth/' is symonymous with. east of the Blue Ridge. However, in the view that we ta~e of this €ase, we deem it unnecessary to pass at this time upon the meaning of. the term ({Eastern parts of this Connnonwealth/' as used in the Art of 1792 or ((Western parts of this C onmwn~oealth" as used in the Act of 1802. No grant from the Crown or Commonwealth embracing, or b0unded by, any part of .North River, the Big. Calfpasture, or the Little Calfpasture which is (or can be said to be) crossed 1Dy 34* any of the works which the applicant *proposes to .construct, was issued while the Act of 1802 was in effect, that is, during the weriod 1802-1819, inclusive. The north line o£ the patent issaed to Daniel Strickler for 67 acres of. land in 1814 touches the river at Wilson Spring, but no part of this tract is within a half: t:nile of 'Where said conduit crosses the river. After January 1, 1820 the statutory reservations of "the beds of the rivers and creeks in both the u Eastern parts" and a Western parts" of the Commonwealth were the same as those provided by the Act of 1792 for(the· beds o£ river.s .and ·creeks in· the ((Eastern parts''' (See Act of 1792 and.Chap. 86, ·Code.J81'9, abo~·e qtwted), that is, only the beds of those rivers; and creeks were reserved from the grant uwhich ha~·e remained ivngranted by the for rner go7.•ernm,ent, and 1..uhich ha·ve bee1l used as .com1nou to all the good people thereot In lvlead 'l'. Haynes, 3 Rand. 33, the opinion of the Court was de livered by Judge Green and was concurred in by the other three mem bers of the Court sitting. In constnting Sec. 6 of the Act of 1792, above quoted, Judge Green· says :
"This case" (Home v. Richards) (which will be more particularly adverted to hereafter) "determined, .that even before the act of 1792, Ch. 86, Sec. 6, the beds of navigable streams were not grantable,. and that a grant, hounded by a stream not navigable, extended to the middle of the stream. That act prohibits the granting, since 1779, of. the bed of any stream in the Eastern parts of the Commonwealth, which had been used as a common by all the people o.f the Commonwealth; ·but not otherwise. The bed. of Goose ------~------
34 The Garden Club of Virginia.vs. Virginia Public Service Co.
35* Creek not *being navigable (as is found virtually by the . jury, who find that ordinary navigation would not be ob .structed by a dam ten feet high) was grantable before 1779, and was grantable after that period, if not granted before, unless it appeared that it had been used as a common to all the good people of the Commonwealth ;-a fact, which not only does not appear in the record, but which is virtually negatived by the finding of the jury, in relation to fish of passage and ordinary navigation."
See also in this connection Garrison v. Hall, 75 Va. 150. The record contains no evidence that North River in Goshen Pass or the portions of the Big and Little Calfpasture Rivers which will lie within the reservoir area ever had, at any time prior· to the times the several grants from the Commonwealth here in question, been used as a common to all the good people of the Commonwealth; nor does such examinations as this Commission has made show that these portions of these streams prior to the dates of these grants had been used as a common. Hence we are of opinion, and so find, that the Crown and Commonwealth by the grants aforementioned have granted the beds of those portions of these streams here in question to private persons; and the Commonwealth is not now the owner thereof, there having been no forfeiture thereof to the Commonwealth so far as the record, or our examinations, have disclosed. It is not contended by any party in interest here that any 36* part of the Big or Little Calfpasture Rivers or *any part of North River above a point some miles below. Wilson Spring is "used or suitable for use for the transportation of persons or property in interstate or foreign commerce." But counsel for the Garden Clubs vigorously insists that North River through Goshen Pass is included within the "Waters of the State" as defined in said act, because it is a stream, other than a stream used or suitable for interstate transporta tion, "in which the construction of any dim or works as authorized by this act would affect the interests of intersta'te or foreign com merce." In this connection it is contended that in determining whether a stream, or some portion thereof, is included in the "Waters of the State" because a dam constructed in the same will affect the interests of interstate commerce; the t.est is not whether the particular dam which it is proposed to ·construct will affect interstate commerce, but whether any darn which might be authorized under the act, and es- The Garden Club of Virginia vs. Virginia Public Service Co. 35 pecially such a dam as will "provide for the greatest practical extent of utilization of the 'waters' of the stream will affect interstate com merce." Making a concrete application of this position to the instant case, counsel contends that this Commission should take as the test here the dam proposed in the original application, and not the dam proposed in the amended application, because the applicant has it- self shown that the dam proposed in its original application 37* *would provide for the greater utilization of the waters ·of North River than that proposed in its amended application, and that it has amended its appli<:ation reducing the height of the proposed dam, not because the original dam was not practical, but be cause of the oppqsitionof the Rockbridge Company, a private manu facturing corporation. But in view of the construction which.we place upon the language "affect the interests of interstate and foreign c·o·m merce" we deem it unnecessary to pass, and do not pass, at this time upon this phase of the question presented by counsel for the Garden Clubs. The way in which it is alleged the interests of interstate and for eign commerce will be affected by a datu at the proposed location in Goshen Pass are as follows: · ( 1) It will require the relocation of highways now used to some extent for interstate automobile travel; (2) It will back up water against the abuttnents of a main line bridge of the Chesapeake and Ohio Railway over the Big Calfpasture River, over which interstate trains pass; ( 3) It will flood for approximately 4500 feet a spur track of the Chesapeake & Ohio Railway· Co. from and to which interstate traffic i11oves, and export and import traffic will probably moye it1' the near future; and ( 4) It will affect the flow of the water in James River, which is navigable and used for inter- state transportation. · The facts with reference to the volume of the flow of 38* North River in Goshen Pass have been given above; arid *the facts related to the other ways in which it is claimed that a dain in Goshen Pass will affect the interests of interstate or foreign com merce are briefly stated below:- State Highway No. 338, an unin1proved road under State main tenance, which is the route from Lexington to Staunton and Coving ton, via the town of Goshen, runs through Goshen Pass following the west side of North River, artd then along the south side of the Big Calfpastun! River to the town of Goshen. The evidence shows that this road is used to some extent, at least, by automobiles passing from points outside of Virginia to Virginia destinations, and the reverse. 3'6 The Garde~n:Club of Virginia vs. Virginia Public Service Co.
The building of a dam such as is proposed in either the original or the amended application will require t~e relocation ·Of State Highway No. 338 through Goshen Pass and for a part of the way up the Big Calf pasture River. There is also a county highway which leaves State Highway No. 338 some· distance above the forks of the Cal.fpasture Rivers, crosses the Big Calfpasture on a bridge, turns eastward down the north side of the Big Caffpasture for some distance, and then runs across the area between the rivers, crosses the Little Calfpasture at a ford, and tunrns ·northward up the ~east side of the Little Calf pasture. Several miles of this county highway would have to be relocated if a dam such as is proposed in either the original or the amended application is constructed in Goshen Pass. 39* *However, the relocation of these two roads can be ac- complished without the interruption of through traffic, though at some places· detours will have to be used while the relocated road is being constructed. Near the town of Goshen there is a bridge which carries the tracks of the main line of the Chesapeake & Ohio Ry. Co. over the Big Calfpasture. River. .Interstate traffic is constantly being· moved ·over this bridge. The base of the rails on this bridge and of the tracks for some distance on each side of the bridge is 1405 feet above sea level. The bed of the Big Calfpasture under the bridge is approximately 1385 feet above sea level; and the base of the fills for the approaches on both sides ·of the bridge is approximately 1392 feet above sea level. So while the dam. pr-oposed in the original app}ication would back up water under this bridge it would not raise it above. the banks of the stream or within several feet of the base of the fills for the approaches to the bridge. From the town of Goshen there is a spur track of the Chesapeake -& Ohio Ry. Co., son1etimes called the Goshen Branch, which runs down the south side of the Big Calfpasture River some two miles or more. Were this spur track leaves the main line the base of the rails . is approximately 1405 feet above sea level; but it runs down grade, and for something like 4500 feet of its length the base of the rails is be tween 1385 and 1390 feet above sea level. These 4500 feet of 40* this spur track would be flooded by water in *the reservoir of the dam proposed in the original al?Plication but would not be in any way affected by a dam raising the water in the reservoir no higher than the 1380 foot level. The evidence shows that during the twelve months ending March 31, 1929, 487 cars were shipped over The Garden Club of Virginia 'itS. Virginia Public Service Co. 37 the Chesapeake & Ohio Railway from this spur track to points outside of Virginia, and it would appear that some, if not all, these cars moved over the portion of said spur track which woulcl be Hooded by water stancling at the 1390 foot level. It would further appear fron1 the evidence that the majority of the raw wool which will b~ used by the Rockbridge Company at the plant it is now erecting along, or near, this spur track, will be wool imported from Australia, that some of the 1naterials for the construc. tion of the Rockbridge Company's plant will be received from points outside Virginia, that nmch of its product will be shipped out of the State of Virginia; and that said building material and raw material will be received on this spur track, and the products of this company shipped· from this spur track. Whi~le the dan1 proposed in the atnended application will not back the water up within a n1ile of the· main line of the Chesapeake and Ohio Railway or flood ·or otherwise affect any part of said spur track, it will require practically the same relocation of State Highway No. 338 arid said County Road as would be necessary in case of a 41 * dam being *built in accorda11ce with the specifications of the original application~ Reading the Virginia Water Power Act as a whole, we think that the language "affect the interest of interstate or foreign commerce" relates only to interstate or foreign comtnerce carried on by trans portation upon the ·stream or those streams or bodies of water into which its waters flow; and does not include such direct effects upon interstate and foreign comn1erce as may result from the fact that the construction of a dam necessitates the relocation of a part of a high way or railroad over which interstate commerce may or does pass, or the raising of the level of a spur track from which interstate ship ments are forwarded, or renders less suitable or unsuitable property used, or usable, for the manufacture for interstate shipments of ar ticles from raw material received in interstate shipments. In constru ing the language "affects the interest of interstate of foreign com tnerce," a ntle of reason ll1Ust be applied. The fact that a dam may in some remote or slight way affect interstate commerce, as for instance the damming up of a small stream and thereby retarding for a short while its flow into a navigable stream, does not within the rule of reason constitute such an effect upon the interests of interstate com merce as is contemplated by the statute. Applying the rule of reason to the instant case, we find 11.othing in the record to show that 42* the.dam proposed in either the' original or amended *applica------
38 The Garden Club of Virginia vs. Virginia Public Service Co.
tion would "affect the interests of interstate or foreign com merce." Especially is this true as to the effect such a datn will have upon potential interstate transportation upon the lower reaches of North River and actual interstate transportation on the lower reaches of J atnes River. The volume of the flow of North River in Goshen Pass is comparatively so small that the impounding of its waters by the proposed dam, we think, cannot be said within the rule of reason to affect the interests of interstate or foreign commerce carried on by transportation upon the lower reaches of North River or on the James River. For the reasons above stated we are of opinion that the strean1s, or parts thereof, here involved are not "Waters of the State" as de fined by the Virginia Water Power Act; and that this Commission has no power or authority to either grant or refuse the license here applied for; and an order will issue dismissing the application of the Virginia Public Service Company upon this ground. Commissioner Fletcher concurs. Commissioner 1-Iooker was ill during the hearings in this cause and did not participate in its decision.
43* *ORDER OF JULY 24, 1929
44* *COl\1l\10N\VEALTH OF VIRGINIA
STATE CORPORATION COMMISSION
At Richtnond,
July 24, 1929
VIRGINIA PUBLIC SERVICE COl\IIPANY CASE NO. 3835
Ex Parte : lJpon an application to construct a Dam across North River at the Northern end of Goshen Pass.
ORDER DISl\IIISSING APPLICATION
The State Corporation Commissioti of Virginia (Chairman Epes and Commissioner Fletcher sitting, Commissioner Hooker not having participated in the hearings on account of his illness), for reasons The Garden Club of Virginia vs. Virginia Public Service Co. 39 stated in writing in the opinion of Chairman Epes, which is made a part of the record in this cause, being of the opinion that the State Corporation Commission of Virginia has not the power and authority under the Virgi_nia Water Power Act (Chap. 424, Acts 1928) to either grant or refuse the license applied for by the Virginia Public Service Company in its application for a license to construct a dam across North River, in Goshen Pass in Rockbridge County, Virginia, DOTH ORDER that said application of the Virginia Public Service Company be, and is, hereby dismissed.
A T~ue Copy, Teste:
R. T. WILSON,
Clerk of the State Corporation Commission.
45* *AGREEMENT OF PARTIES AS TO WHAT SHALL CONSTITUTE THE RECORD ON APPEAL
46* *VIRGINIA: IN THE STATE CORPORATION COMMISSION
VIRGINIA PUBLIC SERVICE COMPANY CASE NO. 3835
Ex Parte : Upon an application to construct a dam across North River at the northern end of Goshen Pass.
AGREEMENT BY THE PARTIES AS TO WHAT SHALL CONSTITUTE THE RECbRD ON APPEAL
The undersigned Virginia Public Service Company, the applicant, The Garden Club of Virginia, an unincorporated association com posed of residents and citizens of the State of Virginia, which filed a petition praying that the State Corporation Commission act upon the application and refuse to grant a license as prayed for, and William J. Ayers, an interested person who filed a petition asserting that the State Corporation Commission is without jurisdiction to act upon the application, do hereby, by their Counsel, agree that if the Clerk of the State Corporation Commission shall copy the following parts of the record, in lieu of the complete record, the Supreme Court of Appeals of Virginia will be enabled _properly to decide the questian from the 40 The Garden Club of Virginia vs~ Virgilzia·Public Sen.Jice Co. decision of which by the State Corporation Commission,. The Garden Club proposes to appealt to-wit : Does the term "Waters of the State" as used in Section I of Chapter· 424 of the Acts of 1928 in clude· the waters across which Virginia Public Servi<;e Company has applied for a license to construct a dam in this case ? The applicant and William J. Ayers. have entered into this agreement upon the ·un derstamding from The Garden Club of Virginia that its contention in the Supreme Court of Appeals, that the foregoing: question should be answered in the affirmative, will be limited to a contention that the North River at the point in question, constitutes "any sream 47* or part hereof in this State *other than those above mentioned in this subdivision (c) in which the construction of any dam or works as authorized by this act would affect the interests of inter state or foreign commerce." The parts of the record to be copied by the ·Clerk shall be only the following : 1. The order of July 24, 1929, dismissing the application of Virginia Public Service Company. 2. All the facts upon which the said order was based and :which may be essential for the proper decision of the appeal, as certified by the State Corporation Commission to the Supreme Court of Appeals. 3. The written opinion of the State. Corporation Commission, including a statement of the reasons upon which the said order was based, as filed by the State Corporation Commission with· the record of the case. 4. This agreement, and the order of the State Corporation Commission which shall ·hereafter be enteredt· filing the same. Dated this 26th day of August, 1929.
VIRGINIA PUBLIC SERVICE COMPANY. By Hugh A. White, Its Counsel.
THE GARDEN CLUB OF VIRGINIA. By Christian & Barton, Its CouttlSel.
WILLIAM J. AYERS. By Hugh A. White, His Counsel.
A. True Copy, Teste:
R. T. WILSON, Clerk of the State C~poration CommisSion. The Garden Club of Virginia vs. Virginia Public Service Co. 41
48* *ORDER MAKING THE AGREEMENT A PART OF THE RECORD
49* *COMMONWEALTH OF VIRGINIA
STATE CORPORATION COMMISSION
City of Richmond, 3rd day of September, 1929
VIRGINIA PUBLIC SERVICE C0~1:PANY CASE NO. 3835
Ex Parte : Upon application to construct a Dam across North River at theNorthern end of Goshen Pass.
On the motion of the ,Garden Club of Virginia by ·counsel a cer tain agreement by the parties as to what shall constitute the record on appeal, which agreement is dated August 26, 1929~ and is signed by the· Virginia Public Service Company, the Garden Club of Virginia, and William J. Ayers, all by their counsel, is hereby filed and made a part of the record.
A True Copy, Teste:
. · R. T. WILSON,
Clerk of the State Corporation Ct nwn;~'-"if ,,,
50* *COMMONWEALTH 0 FVIRGINIA
STATE CORPORA.TION COMMISSION
The State Corporation Commission of Virginia, under the seal ', • the Commission, doth hereby certify that all the facts upon which thl~ action appealed from was based which are essential· for the proper decision of the appeal are stated in the foregoing opinion of Epes, Chairman, and that said opinion states the reasons upon which the action of the Commission appealed from was based, which said opinion is adopted by the State Corporation Commission as and for a state ment of all the facts upon which the action appealed from was based which may be essential for the proper decision of the appeal and as and for the writeen statement of the reasons upon which the action 42 Tho Garden Club of Virginia:vs .. Virginia Public Service Co. appealed ftoni was based which are required by Chapter 424, Acts of the General Assembly of Virginia of 1928. · Witness the seal of the State Corporation Commission and the signature of ItS Chaitman, attested: by the Clerk, the lOth day of September, 1929, and in the 154th year of the Commonwealth.
(Seal) STATE CoRPORATION CoMMISSION OF VIRGINIA.
By LOUIS EPES, Chairman.
Attest:
. R. T. WILSON,
Clerk of the Comt1tission. ·
I. '*COMMONWEALTH OF VIRGINIA. ~ . ··~~
1: :·, STATE CORPORATION COMMISSION
I, R. T. Wilson, Clerk, State Corporation Commission, do hereby certify that proper notice was given of the intention to apply for a transcript of the record in this case as· the basis for appeal to the Supreme Court of Appeals of Virginia pursuant to the provisions of Section 6339, Code of Virginia, 1919. Given under my hand as Clerk of the State Corporation this lOth day of September, 1929.
R. T. WILSON, Clerk State Corporation Commission.
A Copy, Teste: . :f I.NDEX PAGES Petition ...... ~ ...... 1-12 Appeal allowed ...... 12 Application of Virginia Public Service Co...... 13 Opinion of Corporation Commission by Epps, Chairman...... 13 Order of July 24, 1929 dismissing application...... · 38 Agreement of parties as to record ...... 39 Order of September 3, making agreement part of record...... 41 Authentication of record...... 42
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