Gough v. Conley

141 S.E.2d 690, 206 Va. 88, 1965 Va. LEXIS 173
CourtSupreme Court of Virginia
DecidedApril 26, 1965
DocketRecord 5931
StatusPublished
Cited by2 cases

This text of 141 S.E.2d 690 (Gough v. Conley) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gough v. Conley, 141 S.E.2d 690, 206 Va. 88, 1965 Va. LEXIS 173 (Va. 1965).

Opinions

Buchanan, J.,

delivered the opinion of the court.

This suit was brought by Alvah O. Conley and twenty-one others, complainants, against Thomas D. Gough and wife and Charles F. Ball, Jr., and wife, defendants, to have a declaration of their rights with respect to a water system in the community of Ditchley, Northumberland county, and for an injunction.

The bill alleged that in 1934 a water system was established in the Ditchley area and the defendants granted to Ditchley, Incorporated, which was owned entirely by Mrs. Jessie Ball duPont, easements for water lines over their properties. These properties lay between the mansion house of Ditchley, an historic home, and a strongly-flowing artesian well, on a point of land owned by Mrs. duPont east of the defendants’ properties.

Exhibited with the bill were copies of two deeds dated December 14, 1934, duly acknowledged and recorded, one from Thomas D. Gough and Daisy W. Gough, his wife, and the other from Charles F. Ball, Jr., and Eleanor Ball, his wife. Both deeds granted to Ditchley, Inc., its successors and assigns, for a consideration of one dollar, “the right to construct, operate, and maintain its or their pipe line, taps, valve boxes and other fixtures for operating its water line or main, at a depth of not less than 18 inches below surface” across the land owned by the grantors, and also under any public road in which the grantors had any right or interest, “and to permit the attachment of distribution pipe lines of any other person or company to said water line or main.”

The bill further alleged that in 1940 Ditchley, Inc., conveyed the water system to Mrs. duPont, who by agreement dated December 3, 1962, leased the system to Ditchley Water Works, Inc., in order that it might make necessary improvements and provide a new well to supply water to the residents of the area at the cost of the users; but, complainants alleged, they had been told by the defendant Thomas D. Gough that they had no right to operate or maintain the water lines formerly used by Ditchley and Mrs. duPont and would not be allowed to do so.

The bill prayed for an injunction to restrain the defendants from interfering with the operation of the water system and for a construe[90]*90tion of the easements referred to, and a determination of the rights and duties of the parties.

The defendants filed their answer in which they admitted the granting of the easements and stated that the consideration therefor was the “undertaking” by Ditchley, Inc., for itself and its successors, to furnish free water to the defendants, and that their failure to do so would “void the said easements,” and that the continuance of the easements depended upon supplying water to the defendants at no charge, but that demand was being made on defendants to pay for connection fees and water; and, further, that the lateral line across the property of defendant Daisy W. Gough was there by license that could be revoked at any time, and that they reserved the right to revoke such license if they were denied free water. Defendants prayed that their contracts for free water be construed and that the complainants be enjoined from interfering with their water supply and from making any charge against the defendants therefor.

The court heard ore terms the evidence offered by the parties and in its decree held that the defendants had been fully paid for said easements; that the water system in use had become inadequate and that Ditchley Water Works, Inc., had been established as a non-profit corporation to improve and operate the water facilities in the area, and that improper interference therewith would result in irreparable injury to the complainants; that the lateral water line of said system through the property of defendant Daisy W. Gough was installed as a joint undertaking at the joint expense of the users and should not be interfered with.

It was accordingly decreed that the defendants were not entitled to receive free water from the new system and they were enjoined from interfering with its operation and maintenance. Defendants appeal and assert that the decree is not supported by the evidence and is contrary to the law.

Under their assignments of error the defendants contend, first, that they are entitled to have free water for certain structures on their property “so long as the pipelines crossing their properties remain in use,” and that the court erred in failing to enforce such right.

By their deeds signed, sealed and recorded, the defendants granted to Ditchley, Inc., and its successors, the right to construct, operate and maintain the pipeline through their properties. These grants cannot now be defeated by showing that as part of the agreement the grantors were to receive free water. Parol evidence is admissible to show the true consideration for the deeds, but not to alter or con[91]*91tradict their legal effect. Sale v. Figg, 164 Va. 402, 180 S.E. 173; Otey v. Oakey, 157 Va. 314, 160 S.E. 8; Harvey v. Alexander, 22 Va. (1 Rand.) 219; 5 Mich. Jur., Deeds, § 14, p. 701; 7 Mich. Jur., Evidence, § 159, pp. 519-20.

Carter M. Keane, one of complainants and president of Ditchley Water Works, Inc., testified that he was an architectural engineer employed by Mrs. duPont to restore the Ditchley house. He said that in 1934 Mr. duPont instructed him to design a water system to bring water from the strongly-flowing well on the point to the Ditchley house, and that the people in the area could tap on to the line and use the water without charge “so long as we operate on that basis.” Keane accordingly proceeded to get the easements for the pipeline over the properties of Mrs. Gough and the Balls.

The testimony of Keane was that the line was completed in 1935, was operated thereafter at the expense of Mrs. duPont, and water therefrom supplied free of charge to those who connected with it until it began to be discolored and became unfit for use. On investigation it was decided that the best solution was to drill another well. Mrs. duPont was not willing to continue to finance the project and in December 1962 she executed a lease of the water system to Ditchley Water Works, Inc., which undertook to operate it and relieve her from further liability. A plan was then worked out for operating the system on a basis of making connection and service charges to the users. Defendant Gough refused to pay and stated he expected to continue to get free water at his home and oyster house and if he did not he would remove the pipes.

Keane testified that all who used the water were supposed to make application to him for permits to connect with the system, but some got permission direct from Mrs. duPont. He introduced in evidence an application by one of the users which contained this provision: “It is further understood and mutually agreed that I am to have the use of this service without charge as long as the system is operated on the present basis.” Keane said this provision applied to all, including defendants, and that he explained that to them. He testified that free water was not consideration for the easements and was not discussed as part of them; but that he told all of the people, including the defendants, that they were going to get free water.

There was shown to him and filed as an exhibit by the defendants a writing dated December 14, 1934, signed by Ditchley, Inc., and defendant Charles F.

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Related

Young v. Commissioner
1985 T.C. Memo. 221 (U.S. Tax Court, 1985)
Gough v. Conley
141 S.E.2d 690 (Supreme Court of Virginia, 1965)

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Bluebook (online)
141 S.E.2d 690, 206 Va. 88, 1965 Va. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gough-v-conley-va-1965.