65 W. Va. 739 | W. Va. | 1909
The West Virginia Central Gas Company, by proceedings in , the circuit court of Lewis county, condemned for public purposes strips of land eighteen inches wide through two tracts belonging to James B. Lovett. These strips of land, one through each tract, were condemned by specific descriptions, setting forth the beginning points, and the courses and distances of each strip. In the condemnation proceedings it was ascertained that the landowner was entitled to the sum of $806.40 for'the land so taken. The money was paid into court, and an order was made giving the gas company immediate possession of the land. The company, however, excepted to the amount of compensation found by the commissioners. The proceedings were continued for the ascertainment by a jury of the value of the lands taken.
Although the strips of land were condemned by definite descriptions furnished by the gas company, that company did not confine itself to the lands described when it proceeded to lay its pipes. Instead of pursuing the direct courses and distances called for in the descriptions upon which the condemnation was had, the pipe lines were laid on somewhat irregular courses and on portions of Lovett’s lands that the company had not condemned for that purpose. On one of the tracts the line was laid at irregular distances from the strip condemned; in some places as far away as eight and twelve feet. On the other tract the pipe line varied from the strip condemned as much as five feet and eight inches. Thus the gas company took possession of and laid its pipe lines on lands of Lovett that it had not condemned. It had paid no compensation for the lands so occupied. Lovett, thereupon, instituted his suit in equity, praying an injunction against such unlawful taking and appropri
It is clearly established that the pipe lines were not laid on the strips of land condemned. Counsel for the gas companj’, in their brief, practically concede this fact. They insist, however, that Lovett has no redress by way of injunction; that his remedy, if any he has, is at law; that the wrong sought to be restrained is a mere technical one; that the use of lands other than those condemned has not injured Lovett, but, in fact, benefitted him; that he is estopped because he did not object to the laying of the pipes before the work was completed; and that it is an unreasonable and unnecessary hardship, working injury to the public, to require the removal of the pipe lines.
It is the sacred and fundamental law of this commonwealth that private property shall not be taken or damaged for public use without just compensation therefor. The gas company has taken lands of Lovett which it did not condemn and for which it did not compensate him. Since he chooses to complain, tire facts that the parcels of land used lie very near those condemned and that the use of them injures him no more than would the use of the lands actually condemned do not change the mandate that his property cannot be taken for public use except in the manner provided by law. It may be that the taking of the property is not a great -injury; yet, it is a talcing. The landowner objects to the use of any 'other land than that legally taken. He has the right so to object. His motives in object
By the gas company’s laying the pipe lines on lands not condemned for the purpose there has been a visible and tangible appropriation of the same. More than a mere consequential injury has occurred by that unlawful act. The lands have been taken. “Any invasion of property, * * * either upon, above or below the surface, and whether temporary or permanent, is a taking: as by constructing a ditch through it, passing under it by a tunnel, laying gas, water or sewer pipes in the soil, or extending structures over it, as a bridge or telephone wire.” 1 Lewis on Eminent Domain, § 149. Indeed, the impairment of the utility of one’s property by the direct invasion of the bounds of his private dominion is a taking of his property, in the sense of the Constitution wherein it prohibits the taking of private property for public use until just compensation is paid therefor, though the owner has not less of material things than hq had before. Property is taken, within the constitutional meaning, where it is materially impaired by something more-than mere consequential injury, and which impairment renders it impossible for the owner to enjoy his property, to the full extent to which he is entitled. Smith v. City of Atlanta, 92 Ga. 119; Pumpelly v. Green Bay Co., 13 Wal. 166. The laying of pipe lines on Lovett’s lands was clearly an invasion of his private domain, impairing its usefulness to him and rendering impossible his enjoyment of it to the full extent to which he was entitled. Gas pipes in soil belonging to him would ren
To prevent unlawful invasion of one’s private domain for uses of the public, contrary to the .mandate of the Constitution, an injunction lies. Spencer v. Railroad Co., 23 W. Va. 406; Jackson v. Big Sandy, etc. R. Co., 63 W. Va. 18; and other cases. That remedy secures the possession and use of the property until compensation is paid. Thus/the mandate of the Constitution is enforced. At law there is no such adequate remedy. Ho legal remedy will prevent the taking of private property for public use until compensation is paid. Equity only gives a complete remedy in such instances. “It is most essential to the preservation of the rights of private property, to the protection of the citizen, and to the preservation of the best interests of the community, that all who are invested with the right of eminent domain, with the extraordinary power of depriving persons, natural or artificial, without their consent, of their property, and its possession and enjoyment, should be kept in strict-line of the authority with which they are clothed and compelled to implicit obedience to the mandates of the Constitution. A court of equity will intervene to keep them within the line of authority, and to compel obedience to the Constitution, because of the necessity that they should be kept within control, and In subjection to the law, rather than upon the theory that they are trespassers, or that the injury which they are indicting is Irreparable. The owner of the land has the right to say that, unless they keep within the strict limits prescribed by law, they shall not disturb Mm in the possession and enjoyment of his property. The power is so capable of abuse, and those who are invested with it are often so prone to its arbitrary and oppressive exercise, that a court of equity, without inquiring whether there is irreparable injury, or injury not susceptible of adequate redress by legal remedies, will intervene for the protection of the owner.” East & West R. R. Co. v. Tenn. Va. & Ga. R. R. Co., 75 Ala. 275; 2 Lewis on Eminent Domain, § 632.
notwithstanding Lovett’s clear right to stop the invasion of his property by injunction, it is insisted that the bill should
A -company having the right of condemnation, and selecting property upon which it exerts that right, cannot thereafter of its own accord depart from the survey of the property condemned and take other property of the owner in the place of that which it has condemned. The fact that it has condemned -one parcel of property of the landowner does not give it the right to take another. It cannot make such exchange of properties without the consent of the owner. “In opening or improving a highway or turnpike, or in constructing a railroad or ditch, ■or mill dam, no deviation can be made from the location as established by the proceedings or defined by the contract.” 2 Lewis on Eminent Domain, § 599. In tins connection, we refer to Lance’s Appeal, 55 Pa. St. 27, in which case Thompson, -J., said: “The one party being, irrevocably bound by a location which takes a portion of his property from him, the rule would be unjust which would permit the other to act in regard to it as he pleases. If the latter desires a different road than that which he has got, let him apply anew to the proper source ■of power for authority to malee it. He will not get it otherwise.” In Kier v. Boyd, 60 Pa. St. 33, where land was appropriated by legal proceedings and a lateral railroad constructed on
Quite pertinent to this case is the decision in Rutledge v. Drainage Com. Dist. No. 6, 16 Ill. App. 655. It completely answers the contention made here, that the departure from the lands actually condemned is justifiable. There, the court.holds: “Where proceedings under the drainage law are had to appropriate property upon a certain line, the line so specified must be followed. If a substantially different line is adopted there must be another assessment, and it will not answer the purpose to say
It is sought to justify the act of the gas company upon the ground of convenience. Some trees and a stump made it necessary to take other property than that condemned, it is claimed. The answer to this is that such other property should have been condemned in the first instance. In Hughes v. Trustees of Morden College, 1 Ves. Sr. 188, where the commissioners of a «turnpike having taken gravel from land immediately adjoining a highway under construction were enjoined from so doing, the Lord Chancellor said: “Its being in a country where it is difficult to get gravel, is not a circumstance that will extend the authority of the commissioners.” And. a decision applicable here, though not of a court of last resort, we quote approvingly: “A water company which has once exercised its right of eminent domain in the location of pipe lines will be enjoined from laying out over the same lands an entirely new' and additional route for supplying itself with water, no matter how convenient or necessary the same may be.” McKay v. Penna. Water Co., 6 Pa. Dist. Rep. 364.
It is insisted that the removal of the pipe lines will, for a time, take from the public in various cities and towns the use of gas; that a removal of the -lines will be a great hardship upon the company and its patrons, the public. But Lovett’s rights to the undisturbed use of his property is as fixed and as sacred as are the rights of the public. If the gas company is inconvenienced or disturbed in the fulfillment of its contracts with its patrons, it has no one to blame but itself. It should have laid its pipe lines oh the lands which it condemned. There is no reason why Lovett should suffer because of its neglect in this particular. Nor is there any law by which Lovett’s rights must give way to the public rights, except under the constitutional provision which has not been observed as to the property taken. However, no inconvenience to the public need transpire since the decree provides for a period of thirty days in which to remove the pipes. In this time new pipe lines can be laid on the lands that were condemned, the gas turned into them, and
It was not Lovett’s duty to see that the pipe lines were laid on the lands which were condemned for that purpose'; but it was clearly the duty of the gas company to lay them there. He cannot be made responsible for the company’s neglect of its duty to him, at the sacrifice of private rights. It would be manifestly unreasonable and unjust so to hold. There is nothing in the case showing that he knew that the company in laying the pipes was departing from the lands condemned. We cannot assume that he stood by and knowingly permitted the tres-^ pass. We must in reason assume that he relied upon the fulfillment of the gas company’s duty to follow the survey under which it had taken the lands. A prudent man would naturally so rely. No bad faith on Lovett’s part is established, denying to him protection by injunction. By remaining away while the work of laying the pipes was going on, he is not estopped to complain of the wrong location; for it was in nowise his duty to be present and compel adherence to the survey. The company had selected lands and taken them by law; it was bound to confine itself to such lands. It departed from them at its own risk. There is no element of estoppel in the act of Lovett in failing to ascertain that the company was not on its proper territory while the work was progressing. Water Co. v. Browning, 53 W. Va. 436.
The granting of the mandatory injunction is not erroneous: So clearly is Lovett entitled to his right to enjoy the lands, which the gas company has sought to wrest from him without warrant of law, that the court should with great propriety compel the restoration to him of that which was wrongly, in direct disregard of constitutional right, taken from him. “Where a defendant is restrained from a threatened violation of plaintiff’s clearly established rights and has begun the violation with knowledge of such rights, a mandatory clause will sometimes be added requiring defendant to restore plaintiff to the original situation.” 1 Joyce on Inj., § 102.
It appearing that the decree is a manifestly proper one, an order will be made affirming it.
Affirmed.