72 W. Va. 557 | W. Va. | 1913
Petitioner elected to proceed pursuant to the alternative method prescribed by section 20, chapter 42, Code Suppl. 1909, chapter 74, Acts 1907, to condemn an easement or right of way less than a fee for a natural gas pipe line through defendant’s lands, according to a plan attached to the bond tendered defendant showing the route of its proposed pipe line through his lands.
Failing to agree with him as to the damages, and defendant refusing to accept the bond tendered him, petitioner, after five days notice, presented the same to the Judge of the Circuit Court in vacation, as prescribed by the statute, and also its petition praying among other things that said bond be approved. Whereupon defendant appeared and demurred to the petition, which being joined in by petitioner and argued by counsel the court took time to consider, giving to petitioners, over objection by defendant, leave to file said bond and to make the same part of the record, but denying petitioner, until the further order of the court or judge, right of entry on the land.
On a later day, having considered the matters of law arising upon the prior proceedings, the judge was of opinion to approve the bond, unless within three days defendant should except to the form, amount, or surety, and file his exceptions with the clerk, and to that end continued the case to July 22, 1911, in chambers. ¡
At a later day the demurrer was overruled, defendant’s pleas numbered 1, 2 and 3, and his so called plea and further exceptions were filed, but pleas numbered 4 to 9, inclusive, were rejected, and issue was joined on the several pleas filed. Without passing on the exceptions to the bond the court directed the testimony to be taken on the issues presented by the pleas, and on final hearing, on September 29, 1911, pronounced the judgment now complained of, finding that petitioner had the right to condemn the right of way or easement over defendant’s lands for the purposes set forth in its petition, and finding the same sufficient in all particulars, approved the bond filed, and further found, ordered and directed that petitioner had the right to and might at any time and immediately, if necessary, enter upon said easement or right of way for the purpose of constructing its pipe line as pro-, posed in its petition, to which rulings and judgment exceptions were taken and saved on the record.
The pleas rejected so far as material are covered by those filed and there was no prejudicial error in rejecting those not filed. The issues presented by the demurrer and the several pleas and motions filed, and to which the evidence relates, will now be considered.
First, it is affirmed that said chapter 74, Acts 1907, amending and re-enacting sections eighteen and twenty of chapter forty-two, providing thereby for the alternative method of condemning land or easements by pipe line companies organized for transporting carbon oil or natural gas, is unconstitutional: (1). For infringing section 30, art. 6, of the constitution, providing that “No act hereafter passed, shall embrace more than one object, and that shall be expressed in its title”; (2) for the'infraction of section 39, of the same article, providing “And in no ease shall a special act be passed, where a general law
On the first proposition it is contended that the object of- the act is concealed in the title, and falls within the condemnation of our case of Stewart v. Tennant, 52 W. Va. 559, 572. The title of the act is: “An Act to . amend and re-enact sections eighteen and twenty of chapter forty-two of the code, relating to taking land without the owner’s consent for purposes of public utility.” Before the adoption of our Code of 1868, and in a proceeding begun under Code Va. 1860, and before the statute so specifically provided, the right of a pipe line company, organized for transporting carbon oil, to take land by condemnation was upheld by this court. West Va. Transp. Co. v. Vol. O. and C. Co., 5 W. Va. 382. Prior to chapter 18, Acts 1881, our statute did not as therein enumerate the public uses for which private property might he taken or damaged. Among the purposes enumerated in section 2 of that act, is, “Fifth— For companies organized for the purpose of transporting carbon oil by means of pipes or otherwise.” Pipe lines for transporting natural gas are not mentioned. So far as we know there were no pipe lines then existing in this state for transporting either oil or natural gas, except the West Virginia Transportation Company, plaintiff in the case just referred to. By chapter 7, Acts 1885, companies organized for transporting natural gas were included in said section 2, and the method of procedure prescribed for taking- land for public utility was the same for all companies. The law so remained until the passage of the Act of 1907, now in question. By section 18, of said chapter 42, as thus amended, pipe line companies were included along with railroad companies, entitled to describe as to any or all of the land proposed to be taken an estate or interest therein less than a fee. And by the amendment of section 20, thereof, the alternative method of procedure for such pipe line companies was prescribed, in the three paragraphs added thereto, and which paragraphs constitute the subject of the con
The question now recurs, is the object of the act so. concealed as to render it void for embracing more than one object in its title? We think not. The only object of the amendment of said section eighteen was to classify pipe line companies along- with railroads as entitled in certain eases to take “an estate or interest less than a fee.”- This amendment was certainly fairly covered by the title of the act. The only purpose
The next question is does the amending act of 1907 violate section 39, of art. 6, of the constitution, inhibiting special legislation where a general law would be proper ? It seems almost a waste of time to reply to this proposition in view of what has been said on the first. It is contended, however, that as the amendments affected only pipe line companies transporting oil and natural gas, their effect was to single out that class of corporations and legislate specially with reference to them, and to bring the act within the inhibition of the constitution. ■ To support this proposition counsel cite and rely on State v. Cooley, 56, Minn. 540; 1 Lewis’ Sutherland Stat. Const., 149, 353; In re Church, 92 N. Y. 1; Wheeler v. Philadelphia, 77 Pa. St. 338, 348; Wallis v. Williams, 101 Tex. 395, 108 S. W. 153; Palcher v. U. S., 11 Fed. 47; Ex parte Westerfield, 55 Cal. 550, 36 Am. Rep. 47; Groves v. County Court, 42 W. Va. 596; McEldowney v. Wyatt, 44 W. Va. 711; Violett v. Alexandria, 92 Va. 561; Cooley’s Prin. Const. Law, 241, 243, 244; Cooley’s Const. Lim.
Next, is the statute violative of the due process provisions of our constitution and of the federal constitution? Clearly not. Notwithstanding the provision for 'giving bond to make entry on the land the applicant is not permitted, without acceptance by the owner, or upon due notice to him and approval by a court having jurisdiction, to put a single foot upon the land sought to be taken; and if, as in this case, any question is made as to the right of the applicant to take, or the public purpose for which he proposes to take the iand, is made, these questions will properly be tested by the court before approval of bond or right of entry become complete. Besides, would not injunction lie under the provisions of section 20, to protect the owner? Due process does not necessarily mean process of a court. “All that is essential is that £in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the. amount of compensation; and when this is provided for there is that clue process of law which is required.’ ” Brannon on the Fourteenth Amendment, 467. The authorities cited by counsel for plaintiff in error are equally decisive of this proposition. Our decisions say: “Due process of law means, 'as used in said section, in the due course of legal proceedings according to those rules and forms, which have been established for the protection of private rights, securing to every person a judicial trial before he can be deprived of life, liberty or property.” Peerce v. Kitzmiller, 19 W. Va. 564; White v. Crump, 19 W. Va. 583; Williams v. Freeland, 19 W. Va. 599; Griffee v. Halstead, 19 W. Va. 602; Peerce v. Adamson, 20 W. Va. 57; State v. Sponaugle, 45 W. Va. 415. That the statute in question by proper proceedings fully protects the rights of the owner not only appears from its provisions, but has complete demonstration in' the present proceeding taken under it. Defendant has been permitted to make every defense and- oppose every legal
The next constitutional argument is based on section 9, a.rt. 3, of our constitution, against the taking of private property without just compensation paid, or secured to be paid. It is contended that the provision of section 20, relating to the giving of bond does not satisfy the requirements of the constitution, “paid, or secured to be paid.” Certainly a bond, if good in form, sufficient in amount and with sufficient surety, would satisfy the requirement “secured to be paid.” But it is insisted that the land itself should be made the primary security, and title and the right reserved. This would not always furnish the best security for the liberal findings of commissioners and juries in such cases. The bond provided is to serve in case the owner and applicant are unable to agree. If the bond is deficient in form, amount, or surety, ample provision is made in the statute for correcting these defects. It is furthermore insisted that the bond should not be approved or entry made until the damages have been assessed by commissioners or jury. In the early Virginia case of Tuckahoe Canal Co. v. Tuckahoe & James River R. R. Co., 11 Leigh, Anno. 552, a general statute, passed at the session of 1836-7, gave similar rights to railroad ■companies to enter upon land before condemnation and assessment of damages, and providing for injunction against the owner from interference, except in certain cases. This statute was upheld by the Virginia court. This case is cited in Spencer v. Point Pleasant & Ohio R. R. Co., 23 W. Va. 406. Speaking of the constitution and with reference to the statute there involved, providing that after the damages should be assessed, the condemning railroad might be enjoined from the use of the right of way until the damages assessed should be fully paid, the court by Judge GbubN says, at page 412: “Indeed, had the Legislature gone still further and permitted a railroad company to take possession of the land it wanted to condemn, when it first instituted its proceedings to condemn the land, before even the appointment of commissioners, without paying anything to the owner on simply giving a bond, with approved security, to pay the just compensation when ascertained, it would in so doing be complying with the words of our Constitution.” True he adds: “But it does seem'to me that'it would
The next point of error urged, is that the easement or right of way proposed is without width or depth or definite description. The plan attached to the bond shows the outside boundaries of defendant’s land, and fixes ‘the right of way or easement proposed to be taken through the same by reference to a distinct line of survey, with definite termini and definite and distinct courses and distances, so that there can be no doubt or controversy as to the true location of the line of the proposed right of way or easement. The petition filed by the applicant even more definitely describes this line, and alleges that the only pipe line which petitioner proposes to lay upon said route will be six inches in diameter and will be used exclusively for
The next point is that the public use of the proposed right of way or easement is not sufficiently shown to warrant the judgment complained of. This question is raised by the demurrer, by the pleas filed, as well as by some of those rejected. The cases relied upon in support of this proposition are: Salt Co. v. Brown, 7 W. Va. 198; B. & O. R. R. Co. v. P. W. & Ky. R. R. Co., 17 W. Va. 812; Varner v. Martin, 21 W. Va. 534; Railroad Co. v. Iron Works, 31 W. Va. 710; Cemetery Association v. Redd, 33 W. Va. 262; Fallsburg Co. v. Alexander, 101 Va. 98; Charleston Gas Co. v. Lowe, 52 W. Va. 662; Railroad Co. v. Coal Co., 62 W. Va. 185. In substance it is said of them that they affirm the following propositions: (1) That the use which the public is to have of the property taken must be fixed and definite, and on terms and charges fixed by law; (2) that such public use must be a substantial beneficial one, obviously needful for the public, which it cannot do without, except by suffering great loss or inconvenience; (3) that .the necessity for condemnation must be apparent and that the public need must be an imperious one. These' propositions are drawn mainly from the language of Judge Green in Varner v. Martin, supra. That case involved the constitutionality of an act of the legislature giving right to take the land of another for a private way. The questions involved were rather legislative than judicial. The propositions were correctly applied in that case. True it is, however, that courts may generally inquire into the question whether the property proposed to be taken is for a public use, even though the condemnor be of ■ a class of
On the first proposition, that the public use must be fixed and definite, and on terms and. charges fixed by law, we observe first, that the legislature by general law has conferred upon pipe line companies, organized for transporting oil and natural gas, the right of eminent domain, and has thereby necessarily imposed upon them, as public service corporations the right and duty of performing a public service. That right and duty is fixed as firmly as if written into the statute. Pipe linos for transporting oil must carry oil, as railroads must carry passengers and freight, at reasonable rates, if such rates are not fixed by statute. Pipe line companies organized for transporting gas must serve the people with gas, under reasonable and proper regulations, along the entire line traversed, and for reasonable rates fixed by themselves, or by statute, or by contracts or ordinances of municipalities. Are not the rights of the public so fixed sufficiently definite to answer the requirements of the law ? We think so. The rights of the people are thus protected in nearly every case where the public is served by public service corporations, furnishing water, gas, electricity, or transportation. Charleston Gas Co. v. Lowe, supra, and Pittsburg Hydro-Electric Co. v. Liston, 70 W. Va. 83, recent decisions of this court support these conclusions. Calor Oil & Gas Co. v. Franzell, (Ky.) 109 S. W. 328, as well as Olmsted v. Proprietors of the Morris Aqueduct, 47 N. J. L. 311, are likewise in point. So also are the cases of Gibbs v. Balt. Gas Co., 130 U. S. 396; Munn v. Illinois, 94 U. S. 133.
' On the question of the public necessity for the use of the property, covered by the last two propositions relied on, it may be said generally, that when a public service corporation is organized to serve the public it assumes the duties and responsibilities incident to that service and imposed upon it by law. If
But it is argued that but few persons are or will be served in West Virginia by the proposed pipe line; that most of the. gas is and will be transported into Pennsylvania; that the petitioner is a corporation under the laws of Pennsylvania, and that its principal business is to produce gas and transport it into that state, and that the sovereign right of eminent domain is properly limited to the service of the people of the state where the power is invoked. While the petitioner is a foreign corporation it avers and proves its authority to do business in this slate. Having obtained authority to do business here, section 30, chapter 54, Code 1906, confers upon it the same rights, powers and privileges, and imposes upon it the same duties and liabilities, and subjects it to the same rules and regulations as domestic corporations. Floyd v. Loan & Investment Co., 49 W. Va. 327. Section 24, chapter 52, of the Code, provides that, “Such company shall, for the purpose of transporting natural gas, oils and water, be considered and held to be a common carrier, and subject to all the duties and liabilities of such carriers
Lastly, it is -urged that it was error to deny the defendant the right of trial by jury, on the question of the public need or benefit of the proposed pipe line. This the authorities hold is a judicial question, and not one of fact to be tried by a jury. Hydro-Electric Co. v. Liston, supra; Sisson v. Buena Vista County, (Iowa) 70 L. R. A. 440.
The foregoing conclusions lead to an affirmance of the judgment, and this will be the mandate of the court.
Affirmed.