Volume 123 — Virginia Reports

<p>Appeal from a decre of the Chancery Court of city of Richmond. Decree for complaint. Defendant appeals.</p>

<p>Error to an order of the Hustings Court of city of Richmond, subjecting plaintiff in error to a_, State peddler’s license tax.</p> <p>The opinion states the case.</p>

<p>1. Waters and Watercourses—Pollution—Distinction Between Non-Navigable Stream and Tidal Navigable Bodies.—There is a marked and well defined distinction between the pollution o£ a small non-navigable stream, and the pollution of large tidal navigable bodies of salt water, for the reason-that in the first case the bed of the stream and the waters are owned by the riparian owners while in the latter case the bed of the navigable, tidal salt water and the waters themselves are owned and controlled by the State, for the use and benefit of all the public, subject only to navigation. It is for the State to say what uses shall be made thereof and by whom, subject always to the right of the public, and for the State, through the legislative branch of the government, to say how much pollution it will permit to be emptied into and upon its waters, so long as the owners of the land between- low water and high water mark are not injured.</p> <p>2. Waters and Watercourses—Pollution—Tidal Waters—Sewers— Municipal Corporations—Oysters—Damnum Absque Injuria.— A municipal corporation situated on an arm of the sea, adjacent to tidal waters, has the right to use such waters for the purpose of carrying off its refuse* and sewage to the sea, - so long as such use does not create a public nuisance, and any injury occasioned thereby to private oyster beds is damnum absque injuria.</p> <p>3. State—Waters and Watercourses—Constitutional Law.—The power of the sovereign State or nation is perpetual, not exhausted by. one exercise, and all privileges granted in public waters are subject to that power, the exercise of which is not the taking of private property for public use, but only the lawful exercise of a governmental power for the common good.</p> <p>4. Statutes—Construction—Grants in Derogation of Public Right.— Grants in derogation of the 'common or public right are always strictly construed against the grantee. Nothing passes except what is granted specifically or by necessary implication.</p> <p>5. Oysters—Leases—Construction of Statute—Rights of Planter.— A lease under the Virginia oyster law is made only “for the purpose of planting and propagating oysters thereon,” and it is for this.purpose alone that the planter is authorized to use and occupy such ground—that is to say, that while any citizen might have taken oysters therefrom before the grant, after-wards he only may do so and all others are excluded from either planting op taking oysters from such ground during his term; this marks the limit of his right, for there is nothing to indicate that any other public or private right is withdrawn, limited or curtailed. He does not take a fee simple title, nor can he use the property for any other purpose except for that stated in the statute, and hence every other right heretofore in the public is preserved. Nor is there any language in the statute indicating any intent to destroy or impair any of the ancient rights of the riparian owners.</p> <p>6. Oysters—Leases—Construction of Statute—Rights of Planter.— Under the Virginia statute (Acts 1910, chapter 343), as construed by the Supreme Court of Appeals the oyster planter takes his right to plant and propagate oysters on the public domain of the Commonwealth in the tidal waters, subject to the ancient right of the riparian owners to drain the harmful refuse of the land into the sea, which is the sewer provided therefor by nature; while another statute (Acts 1916, page 51) provides for the examination of such oyster-planting grounds so as to discover polluted areas, and prohibits the taking of oysters therefrom except for the purpose óf removing them to unpolluted waters, there to remain until cleansed, purified and made suitable for human food.</p>

<p>Error to a judgment of the Hustings Court, Part II, of city of Richmond,' in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Prince George county, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from the State Corporation Commission.</p>

<p>Error to a judgment of the Corporation Court of city of Hopewell, in an action of trespass on the case. Judgment for defendant. Plaintiffs assign error.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Circuit Court of city of Norfolk, in ah action of ejectment. Judgment for plaintiif. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of New Kent county, on a motion for relief against interest and penalties upon omitted taxes. Judgment for the Commonwealth. Plaintiff assigns error.</p>

<p>1. Taxation-Exemptions-Personal Property of Cemetery intangible property, in which the accumulated funds of a cemetery company, a corporation, are invested, is liable to taxation.</p> <p>2. Taxation-Exemptions-Constitutional Law.&emdash;Und;er the of 1869, by section 3 of Article X, the legislature had authority to exempt certain classes of property, but since the Constitution of 1902 became effective all tax exemptions are thereby fixed, and there can be no other such exemptions. The most casual consideration of section 183 of the of 1902 shows clearly and distinctly the purpose of the convention thereafter to make iti impossible for the legislature to create any exemptions from taxation, for it not only in detail affirmatively just what property can be from taxation, but expressly denies the legislature the power to add thereto, and specifically prohibits the of any other property. No historical discussion of the provisions of former Constitutions or legislation can make obscure the clear meaning of section 183 of the Constitution, so far as it affects this question.</p> <p>3. Taxation-Exemptions-Cemeteries.-The burying grounds and the lots therein exclusively used for burial purposes, owned by a cemetery company or by its lot owners, are exempted from taxation. No other property owned by the compány is from taxation, and the legislature is itself prohibited from exempting from taxation any other property of cemetery companies.</p> <p>4. Constitutional Law-Statutes-Construction of Statutes and Constitutions.&emdash;When the words of Constitutions and of statutes are unambiguous and have a clear and definite indicating their purpose, it is well settled that courts are not permitted to interpret that which needs no interpretation, and thati general rules for the construction of statutes of doubtful meaning have no application. If the intention is manifest from the language used and leads to no absurd conclusion, courts must give such provisions the effect clearly intended.</p> <p>5. Taxation-—Exemptions—Cemeteries—Fund Appropriated to Cemetery Company by State.-—The legislature appropriated $8,000 to certain trustees and charged them with the duty of securing and executing a contract with the Hollywood Cemetery Company, binding that company to keep the graves of Confederate dead in the soldiers’ section in Hollywood cemetery in.“perpetual care,” upon condition' that the Commonwealth should be forever discharged from any further obligation to make any further appropriations to care for the graves of Confederate soldiers buried there. This trust was fully executed by the trustees, and the $8,000 paid over to the company. The company had absolute title to the fund and might use it for any purpose authorized by its charter.</p> <p>Held: That there was no force in the company’s claim that this fund constituted a trust of which the State was the beneficial owner, and, therefore, it was exempt from taxation.</p>

<p>Error to a judgment of the Court of Law and Chancery of city of Norfolk, in- an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Circuit. Court of Prince William county. Decree for complainant. Defendants appeal.</p>

<p>1. Husband and Wife-Assault and Battery-Action by Wife.&emdash;At common law a wife could not maintain an action for damages for an assault upon her by her husband during the coverture.</p> <p>2. Actions-Bight of Action.-A right of action at law can in no case exist unless, (a) the plaintiff be found to have had, at the time alleged cause of action arose, a substantive civil right, the breach or invasion of which right (constituting in the case of a tort a civil wrong) gave rise to a cause of action; and (b) the plaintiff be found to have had, at the time the action is instituted, a civil remedy by action at law.</p> <p>3. Husband and Wife-Assault and Battery-Action for 2286-a, Code of 190k.-Section 2286-a of the Code of 1904 provides as follows: “A married woman may contract and be contracted with, sue * * * in the same manner and with the same consequences as if she were unmarried, whether the right or liability asserted by * * * her, shall have before or after the passage of this act.”</p> <p>Held: That this statute has not conferred upon a married woman a right of action against her husband for damages for an assault upon her committed by the husband during the It follows, therefore, that the personal representative of a wife, who was hilled by her husband when the husband and wife were living together in that relationship, has no right of action against the husband or his personal representative for the death of the wife.</p> <p>4. Husband and Wife-Assault and Battery-Action for Death-Section 2286-a, Code of 190k.&emdash;The portion of the act quoted in the preceding headnote had reference only to the remedies thereby given to a married woman. It merely provides that at all times during the coverture a married woman is thereby given a right to sue, provided she had, at the time it is alleged that the cause of action arose, the substantive civil right which was necessary to give rise to such cause of action, and does not confer the substantive right necessary to support the right of a married woman to sue her husband for an assault upon her committed by him during the coverture.</p> <p>5. Words and Phrases—“Unmarried"—Section 2286-a, Code of 1904.—The word “unmarried” originally and ordinarily means, it .is true, never having been ma/rried, but the term is a word ' of flexible meaning and slight circumstances will be sufficient to give the word its other meaning of not having a husband or wife at the time in question, and as the term is used in section 2286-a, Code of 1904, it has the meaning of “not having a husband” at the time of the suit or action.</p> <p>6. Statutes—Construction—Derogation of Common Law.—The legislature is presumed to have known and to have had the common law in mind in the enactment of a statute; and the statute will be construed to read as if the common law remained unchanged (that is to say, the statute will be read along with the provisions of the common law, and the latter will be read into the statute), unless the purpose of the statute to change the common law appears from the express languáge of it or by necessary implication from such language.</p> <p>7. Statutes—Construction—Prior Statutes.—The statute law, existing, at the passage of an act, as well as the common law, should be borne in mind in construing it, and the latter statute should be construed in the light of the prior statute law on the subject.</p> <p>8. Statutes—Construction—General Act—Codification—Repeal.—To a general act on a subject, in which the entire law on that subject is recast and condensed and certain provisions of the former law are repealed, the same rule of construction is applicable as is applicable to a general codification of statute laws. No intention to change the meaning or eifeet of prior statutes • is to be inferred from a mere change of phraseology in the statute as codified. The presumption is that the old law was not intended to be changed unless a contrary intention plainly appears in the new.</p>

<p>Appeal from a decree of the Circuit Court of Fairfax county. Decree in favor of complainant and against petitioners. Petitioners appeal.</p>

<p>Error to a judgment of the Circuit Court of city of Portsmouth, in an action of trespass on the case. Judgment for plaintiff. Defendants assign error.</p>

<p>Appeal from a decree of the Circuit Court of Madison county, setting aside a judicial sale. The purchaser at the sale appeals.</p>

<p>Error to a judgment of the Corporation Court of city of Lynchburg, in an action of trespass on the case. Judgment for plaintiff'. Defendant assigns error.</p>

<p>Petition for writ of huberns corpus.</p>

<p>Error to a judgment of the Hustings Court, Part II, of city of Richmond, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Prince Edward county, affirming on appeal an order of the board óf supervisors of Prince Edward county imposing a tax upon the property of the plaintiff in error.</p>

<p>Appeal from a.decree of the Circuit Court of Chesterfield county. Decree for defendants. Complainants appeal.</p>

<p>Appeal from a decree of the Circuit Court of city of Richmond. Decree for defendants. Petitioners appeal.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond, upon a petition against the members of the Convict Lime. Board, the Auditor of Public Accounts and the Treasurer. Judgment for plaintiff. Defendants assign error.</p>

<p>Error to a judgment, of the Court of Law and Chancery of city of Norfolk, in an action of assumpsit. Judgment for plaintiff. Defendant assigns error. '</p>

<p>Error to a judgment of the Hustings Court, Part II, of city of Richmond, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Court of Law and Chancery of city of Norfolk, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Chesterfield county. Decree for defendants. Complainant appeals.</p>

<p>Error to a judgment of the Circuit Court of Northampton county, in a statutory proceedings to ascertain the boundary of land. Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Circuit Court of city of Williamsburg and county of James City. Decree for complainants. Defendants appeal.</p>

<p>Error to a judgment of the Circuit Court of Norfolk county, in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Lee county. Decree for defendants. Complainant appeals.</p>

<p>Error to a judgment of the Corporation Court of city of Bristol, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to an order of the Circuit Court of Giles county, admitting a paper to probate as a will.</p>

<p>Error to a judgment of the Circuit Court of Floyd county, upon a judgment upon a writ of scire facias against a surety upon a bail bond.</p>

<p>Appeal from a decree of the Circuit Court of Wise, county. Decree for complainants. . Defendant appeals.</p>

<p>Appeal from a decree of the Circuit Court of Carroll county. Decree for complainant. Defendant appeals.</p>

<p>Appeal from a decree of the Circuit Court of Wise county. Decree for complainant. Defendants appeal.</p>

<p>Appeals from a decree of the Circuit Court of Wise county. Decree for complainants. Defendant appeals.</p>

<p>Error to an order of the Circuit Court of New Kent county, dismissing an appeal from an order of the board of supervisors refusing the application for the establishment of a public road and landing.</p>

C. Elliott and others for an election submitting to the voters of the city of Roanoke the question of changing its form of government.

<p>Error to a judgment of the Court of Law and Chancery of city of Roanoke, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Russell county, in an action of trespass oh the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Giles county. Decree for complainant. Defendants appeal.</p>

<p>Appeal from a decree of the Circuit Court of Bedford county. Decree for complainant. Defendant appeals.</p>

<p>Appeal from a, decree of the Circuit Court of Russell county. • Decree for complainants. Defendant appeals.</p>

From the provisions of the decree exonerating certain land from liability for alimony, attorney’s fee and costs, complainant appeals.

<p>Original application for mandamus.</p>

<p>Error to a judgment of the Circuit Court of Tazewell county in an action of trespass on the case. Judgment for • plaintiff. Defendant assigns error:</p>

<p>Appeal from a decree of the Circuit Court of Giles county. Judgment for complainants. Defendants appeal.</p>

<p>Error to a judgment of the Circuit Court of Russell county, in a proceeding' by motion for a judgment for money upon a forthcoming bond.</p>

<p>Appeal from a decree,of the Circuit Court of Tazewell county. Decree for defendants. Complainants appeal.</p>

<p>Error to a judgment of the Corporation Court of City of Roanoke, on a motion to correct an erroneous assessment. Judgment for Commonwealth. Plaintiffs assign error.</p>

<p>Error to á judgment of the Circuit Court of Dickenson county, awarding a mandamus.</p>

<p>Error to a judgment of the Circuit Court of Giles county. Judgment for defendants. Plaintiffs assign error.</p>

<p>Error to a judgment of the Circuit Court of Giles county, on a motion to correct an erroneous assessment. Judgment for the Commonwealth. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Corporation. Court of city of Bristol. Decree for complainant. Defendants appeal.</p>

<p>Error to a judgment of the Corporation Court of city of Staunton in an action of assumpsit. Judgment for Defenciant assigns error.</p>

<p>Appeal from a decree of the Corporation Court of city of Staunton. Decree for complainant. Defendant appeals.</p>

<p>Error to a .judgment of the Circuit Court of Nelson county, in an action of assumpsit.. Judgment for defendant. Plaintiff assigns error.</p>

<p>.Error to a judgment of the Corporation Court of city of Charlottesville. Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Corporation Court of city of Winchester.- Decree for complainant. Defendant appeals.</p>

<p>Error to a judgment of the Circuit Court of Rockingham county, in an action of debt and in attachment proceedings ancillary thereto. Judgment for plaintiff. Defendants assign- error.</p>

<p>Appeal from an order of the Circuit Court of Nelson' county. Decree for defendants. Complainant appeals.</p>

<p>Error to a judgment of the Circuit Court of Shenandoah county, in an action of assumpsit. Judgment for plaintiffs. Defendant assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Rockbridge county. Decreed for defendant on his cross-bill. Complainant appeals.</p>

<p>Error to a judgment of the Circuit Court of Rockbridge county, in a proceeding by motion for judgment for damages. Judgment for plaintiff. Defendants assign error.</p>

<p>Error to a judgment of the Circuit Court of Russell county.</p>

<p>Error to a judgment of the Circuit Court of Washington county.</p>

<p>Error to a judgment of the Corporation Court of the city of Roanoke.</p>

<p>Error to a judgment of the Circuit Court of Wise county.</p>

<p>Error to a judgment of the Circuit Court of Wise county.</p>

<p>1. Homicide — Murder in First Degree — Previously Existing Grudge.—A homicide in execution of a previously existing grudge, and pursuant to a previously declared purpose, is murder in the first degree.</p> <p>2. Homicide—Instructions Bead As a Whole—Burden of Proof— Previously Expressed Grudge—Case at Bar.—In the instant case the court instructed the jury, at the request of the Commonwealth, that if accused killed deceased in execution of a previously existing grudge, and pursuant to a previously declared purpose, the homicide was murder in the first degree. It was objected to this instruction that it failed to place upon the Commonwealth the-burden of proving the existence of the grudge and the declared purpose to kill, and, further, ignored the defendant’s theory of the killing. The instructions given upon the trial fully and fairly presented to the jury the respective theories and contentions of the Commonwealth and the accused. Under the familiar rule applying to both civil and criminal cases, instructions are to be read as a whole. When so read in this case,' the alleged defects in the Commonwealth’s instruction in question disappear. Instructions given for the defendant, in no way conflicting with those given for the Commonwealth, not only presented every aspect of the defense relied upon, but repeated and emphasized the burden upon the Commonwealth to prove, to the exclusion of all reasonable doubt, every element necessary to a conviction under the indictment.</p> <p>3. Homicide—Threats—TJncommunicated.—On a trial for homicide the jury were instructed, at the request of the Commonwealth, that threats made by the deceased against the prisoner were to be received with great caution, and it must be shown that the threats were communicated to the prisoner prior to the killing, before they could be considered as affording any justification of the homicide. The jury were also instructed, at the request of the accused, that if threats were made by deceased against defendant, such threats are evidence to be considered by the jury in determining the reasonableness and bona fides of the defendant’s plea of self-defense and of his belief that the deceased meant to kill or do him some serious bodily harm.</p> <p>Held: That the first of these instructions stated the law correctly, and if it be conceded that the second was correct^ it was not in substantial conflict with the first. But the Supreme Court of Appeals did not find' it necessary to decide whether the second instruction was right, and expressed no opinion when, if ever, uncommunicated threats are admissible in evidence.</p> <p>4. Homicide—Murder■—Malice—Accused Previously Arming Himself.—On a trial for homicide, the court instructed the jury that a person reasonably apprehending attack has a right to arm himself for his necessary self-defense, and also that a mortal wound given. with a deadly weapon in the previous possession of the slayer, without, any or upon -slight provocation, is prima facie wilful and premeditated killing; These two instructions were given upon opposing theories, and there was no prejudicial conflict between them.</p> <p>5. Homicide—Murder■—Malice—Accused Previously Arming Himself.—On a trial for homicide, when the court told the jury that the accused had the right to arm himself, it was not error to also instruct them that the use of the weapon was sufficient to raise a presumption of malice.</p>