20 W. Va. 223 | W. Va. | 1882
announced the opinion of the Court.
This case has boon before this Court once before. 17 W. Va. 396. The Harper’s Perry Bridge Company, as that record shows, was about to construct a toll bridge across the Shenandoah river at Harper’s Perry. Mason had a ferry across said river at the same place; and he filed his bill of injunction to restrain the company from erecting and operating said bridge, on the ground that it would damage his ferry-franchise, and that under the Constitution of 1872 pri-
On the 25th day of June, 1881, the circuit court in pursuance of said mandate ordered said issue.
On the second day of June, 1881, by leave of the court the defendant fried its supplemental answer averring, that since the decree appealed from was rendered, it had become the owner of certain ferry-rights, which, it alleged, had been owned by the United States, and has also become the owner of the realty, whereon the alleged ferry of Mason had been landed, and that said Mason has no ownership over the same, nor has he contracted with any one for the use of the same, but that the same is wholly vested in the respondent; and that furthermore all right, title and interest of the government of the United States in the ferry sold as aforesaid and situated as hereinbefore described have become vested in
On the 2d day of June, 1881, a jury of twelve freeholders was impanneled to try said issue. On the 8th day of June, 1881, the ,j,my rendered a verdict assessing the damage to the ferry-franchise of the plaintiff at ten thousand dollars. On the 18th day of June, 1881, the court oA^erruled a motion to set aside said verdict and grant a new trial, and signed and sealed nine several exceptions to the rulings of the court pending the trial of the issue, and directed the clerk of the court to certify to the chancery side of the court the verdict of the jury upon the issue rendered. On the same day the court on the chancery side thereof hoard the case on the papers formerly read, the supplemental answer of defendant., general replication and verdict of jury, and decreed, that “ the defendant, the said Bridge Company, do pay to the complainant, Mason, the sum of ten thousand dollars, the amount of said assessment by the said jury, with interest thereon from the date of the decree until paid, and Leave, is given to the complainant to sue out execution upon this decree; and it is further adjudged, ordered and decreed, that the complainant do receive of the defendant, the said Bridge Company, his costs by him in this court expended.”
An appeal with supersedeas was granted to this decree.
The first exception was to the refusal of defendant’s instruction to jury No. 2; the second, to the refusal of defendant’s instruction No. 3, and substituted instruction given by the court; the third, to the refusal of defendant’s instruction No. 5; the fourth, to the giving of plaintiff’s instruction No.' 1; the fifth, to giving the plaintiff’s instruction No. 2; the sixth, to giving plaintiff’s instructions Nos. 3, 4 and 5; the seventh, to the rejection of certain deeds as evidence; the eighth, to the refusal of the court to set aside the verdict and grant a new trial; the ninth, is embraced in former bills and is to the refusal of the court to grant for defendant instructions Nos. 2, 3 and 5, and, in lieu of No. 3, granting Nos. 3 and 3-J.
Before we take up the several bills of exceptions, we will ascertain, what was decided in this cause, when it was before
The answer admits the order establishing the ferry but denies, that the ferry is established and operated at the place indicated and described in the order, and calls for proof as to that matter. It admits that a ferry across the Shenandoah river is conducted and controlled by plaintiff, and that the same is within less than half a mile of the proposed bridge.” * * * “It admits, that it has commenced the construction of the bridge and when completed will operate it as a toll-bridge,” fc.
Upon a full hearing of the cause the court in effect held, that the ferry was legally established, that Mason owned the ferry-seat on the east side of the river, and had contracted for the use of the land on the other side of the river; that the ferry-francliise was Mason’s private property, that the defendant had no right to damage said franchise without just compensation to said Mason, and as it did not seem right to arrest the bridge improvement, if a just compensation was made to Mason, the court ordered that an issue quantum dam-nificatus should be directed, to ascertain how much Mason’s ferry-franchise would be damaged by the erection and opersn tion of the bridge. It was either necessary under our decision to do this, and permit the improvement to be erected
When the Supreme Court of Appeals has executed its power in a cause before it, and its final decree or judgment requires some further act to be done, it will send its decree or judgment to the court below tobe executed. Whatever was before the Court and disposed of is considered finally settled. The inferior court is bound by the decree or judgment as the law of the case and must carry it into execution. The court cannot examine it for any other purpose than to execute it, nor give further relief. Henry v. Davis, 13 W. Va. 230. This cause was remanded to the court below for one purporse, to ascertain in the. manner prescribed by pur mandate the damage, which the construction and operation of the said bridge would inflict upon the plaintiff’s ferry-franchise. If his rights in the franchise remained the same, as when the decree of the circuit court, from which the appeal was taken, was rendered, there could be no evidence offered upon trial of said issue in any way affecting said rights.
With these principles settled we will proceed to examine the exceptions taken to the rulings of the court on the issire. The first was to the refusal to give defendant’s second instruction. The instruction is as follows: “ The court instructs the jury,
In White v. South Shore Railroad Co., 6 Cush. 412, it appeared, that by a special act of the Legislature Hobart was authorized to erect a mill-dam across Monatiquot river. A dam was accordingly constructed and a pond raised; and the petitioners having become the proprietors and being in possession of the premises and privileges seek to recover damages from the respondents, among other things for the injury done to their mill-pond, and privileges by constructing an embankment through and across the pond. At the trial evidence was offered, tending to show, that the dam constructed under the act of the Legislature was not constructed in conformity with the provisions of the act, and the sheriff' was requested to instruct the jury, that if they were satisfied, that the dam was not built in the manner specified in the act, they should allow nothing for damages to the pond. The sheriff declined to so instruct the jury; but the court of common pleas set aside the verdict rendered under this ruling, on the ground that the petitioner acquired no rights to the pond, because the dam had not been constructed in conformity with the act of the Legislature. LI etcher, L, said: “ The ground assumed by the respondents, and upon which the verdict was set aside, is in effect, that petitioner has forfeited all right to this dam, because it was not built according to the provisions of the act. But surely the respondents can have no right to take the petitioners’ pond from them, because the dam was not constructed according to the act. "Whether or not the provisions of the act have been complied with, is a matter between the petitioners and the government.”
The second bill of exceptions was to the refusal to give defendants instructions Ho. 3 and substituting therefor two other instructions. Ho. 3 reads: “In estimating damages to the plaintiff's franchise the jury will not consider such revenues, as were derived from the ferry run upon the landings of the government of the United States, but only such revenues, as could in tlieir judgment from the evidence before them, have been derived from the ferry conducted upon such landings (exclusive of the United States landing), as are prescribed in the order of the county court granting the said franchise to the plaintiff.” This instruction was refused and properly so for the same reasons, that justified the court in refusing defendant’s second instruction.
The court gave in lieu of such instruction the following : “The court instructs the jury, that if they find from the evidence, that since the rendering of the decree in this cause, which was appealed from, the defendants have become the owners of the land, on which the ferry of the plaintiff landed, on the west side of the river, and that the receipts proved in this cause to have been received from the government-ferry was received by the government or its assignees, when said ferry was landed on said ferry-lot owned by the defendant, then in estimating the damage to the plaintiff’s franchise by the construction and opening of the toll-bridge of the defendant, the jury will not consider such revenues, as were derived from the ferry run upon the government-landing as the measure of damage to the plaintiff’s franchise, unless they find from the evidence, that had the landing of the plaintiff’s ferry been at the foot of Tell street or south of said street upon the property of the plaintiff, the same would have been received in the exercise of said franchise at either of the points last named.” This amounts to saying, that if the plaintiff landed on other landings than these named in the
This instruction .clearly did not prejudice the defendant and it has no right to'complain of it.
The second substituted instruction is: “The court further instructs the jury, that in forming their judgment of the damage to the said franchise of the plaintiff, when run within the limits authorized by the county court of Jefferson, and from landing which the plaintiff' has the legal right to use, they are at liberty to consider such revenues mentioned in instruction No. 3 (the foregoing instruction) as evidence tending to show the amount of travel seeking passage across the river at that point, and the value of such travel to one holding the exclusive privilege to charge for transporting the same over the river by means of a ferry located as provided in the order of the county court (exclusive of the landing on property north of Toll street); and outlie other hand they are at liberty to consider the peculiar risk, disadvantages and inconveniences to the public, if any, from the location of the landings within the limits of the order of county court (exclusive of the government-landing) as tending to affect or diminish the said travel, or the value of the same, to the said ferry-francliise so located.”
It seems to me this instruction is fair to both sides and propounds the law correctly. If the plaintiff in the exercise of his franchise landed on ground, for the use of which he had not contracted, which was better than his own, while the jury might consider the travel, Avhile he landed on the good landings, to show the extent thereof, yet they might also
The third bill of exceptions is to the refusal to give defendant’s instruction Ho. 5, which reads: “The jury are instructed, that in assessing damages to the franchise of the plaintiff, he is required to show affirmatively his ownership, or contract for the use of the property damaged, as of the present time, and the order of the county court is not of itself to be regarded in the said assessment, so far as title to the landings of the terry is concerned.” This instruction is clearly wrong and was properly refused. It instructs the jury, that ‘.‘the plaintiff is required to show affirmatively his ownership or contract for the use of the property damaged as of the present time.” That property so damaged is his •ferry-franchise, his right or title to which was settled by this Court on the former appeal. As to the landings this Court on the former appeal decided his right thereto, as they then existed; and it was not necessary to introduce the record of the county court to show, that at that time he’was entitled to ■their use, for that question had been settled.
The fourth exception is to the giving of plaintiff’s instruc-. tion Ho. 1, which instruction is as follows: “The court instructs the jury, that if they ffnd irom the evidence, that the plaintiff, Mason, has been authorized by the county court of Jefferson, to establish a ferry from the mouth of the Hills-boro grade and Pipertown road, or within fifty yards thereof, upon his own land or upon land contracted for, to Tell street, Harper’s Perry, or within twenty yards thereof, that •said roads and streets are public highways, and the grant from the county court operates to confer upon the plaintiff the right to land his boat and take passengers from the foot of Tell street without showing to the jury, that ho first obtained the consent of the authorities of Harper’s Perry.”
But it is insisted by counsel for appellant, that the county court was prohibited from allowing the ferry to be landed at the foot of Tell street, § 33 of cli. 43 of the Code of West Virginia. That section provides: “Hot more than two acres of land shall be condemned for any landing. And no road or landing shall be established by the supervisors of a county, upon or through any lot in an incorporated village, town or city without the consent of the council thereof.” This section clearly does not prohibit the county court from granting the right to land ferry-boats at the foot of a public street, in an incorporated village, town or city.
The sixth exception is to the giving of plaintiff’s instructions Nos, 3, 4 and 5. 'Ho. 3is in these words:
*236 “Although, the jury may find from the evidence that at the foot of Tell street the condition of the river and the hank is not at present suitable for a safe and convenient passage and landing for the ferry of plaintiff, and although they may further find that since the rendition of the decree in this case, which was appealed from, the defendant has become the owner of the twenty yards of river bank north of Tell street, yet if they find from the evidence that said street or within twenty yards south can be made a safe and convenient landing by the expenditure of a certain amount of money, they must find for the plaintiff such damages as they may ascertain his ferry-ffancliise has sustained by reason of the erection and use by the public of the bridge of defendant, to be credited by the amount of the cost of making said river and banks safe and convenient for the use of the ferry.”
This instruction propounds the law correctly. The jury were assessing the damage to the plaintiff’s ferry-francliise, which gave him the exclusive privilege within a half mile of his ferry of transporting persons, &c., over the river for toll. If his landings were not good, and he could make them so; then his quantum of damages ought only to be lessened to the extent of the cost necessary to make the landings good. The damage inflicted upon him by the construction and operation of the bridge was to his franchise and not to his landings.
Columbia Delaware Bridge Co. v. Geisse, 38 N. J. L. 39.
Exceptions Nos. 4 and 5, are as follows:
No. 4.
“And that although they may find from the evidence that at the mouth of the Hillsboro grade and Pipertown road the condition of the river and the. bank is not at present suitable for a safe and convenient landing for the ferry of plaintiff, yet if they further find that said place, or within fifty yards thereof, and upon land owned or contracted for by the plaintiff can be made a safe and convenient landing by the expenditure of a certain amount of money, they must find for the plaintiff such damages as they majr ascei’tain his ferry-franchise has sustained by reason of the erection and use by the public of the bridge of the defendant, to be credited by*237 tlie cost of rendering said river and banks convenient and safe for tlie use of tlie ferry.”
ÍÑfo. 5.
“If tlie jury believe from the evidence that the plaintiff has established a ferry over the Shenandoah river at the points and between the limits prescribed in the order of the county court of Jefferson granting license to said plaintiff to establish such ferry, and that said plaintiff' owns or has contracted for the use of landings on both sides of the river within the limits prescribed in said order of the county court, then, even if they find that said plaintiff may have to expend further sums to make a proper channel for his boat across the river and suitable.landings for his ferry boats on either side of the river on said land so owned or contracted for by him, they will only deduct such necessary expenditures from the amount assessed as damages to plaintiff’s franchise by the erection and opening of defendant’s bridge.”
Bor the reasons above stated as to instruction 2ÑTo. 3, we think that these two instructions propound the law correctly, and were properly given.
The seventh exception was to the exclusion of two deeds, one from a commissioner of the district court of the United States for the district of West Virginia to J. Oavilier, and the other from said' Oavilier and wife to the defendant. The court rejected said deeds as evidence as tending to show title to a tract of sixty-eight and one-half acres on the east side of the Shenandoah, because of the vagueness and uncertainty of the description of the said tract of land refered to in said decrees of the district court, and because said decrees did not identify tlie land described in the deeds. This it seems to me was reason enough for excluding the deeds as evidence of title, as the bill is referred to in the decree and is not produced, and the decrees certainly do not identify the land described in the deeds. Cales v. Miller, 8 Gratt. 6; Masters v. Varner, 5 Gratt. 168; Walton v. Hale, 9 Gratt 194. But there is another reason, why the deeds should have been rejected as evidence as to the title of the sixty-eight and one-half acres. The bill of exceptions does not show, that the evidence was relevant to the issue; aud we are unable to see its relevancy. If it was sought to prove, that at the time, when the decree
'Exception Eo. 5 is to the giving of plaintiff’s instruction Eo. 2, which is as follows : “And they are further instructed, that should they find, that Mason owns or has contracted for the use of the' land on either side of the river within the limits prescribed by the landings'of said ferry, that this meets the requirements of the law, and they must find for the plaintiff such damage as he has or may sustain by the erection and operation of said bridge.” Judge Eaulkuer, who presided at the trial, appends a note to this bill of exceptions of which he is entitled to the benefit. It is as follows : “This instruction was not objected to, when offered, and therefore was mot examined by the court, but when the instructions were granted the following morning, the defendant excepted to all the instructions including Eo. 2 given by the court on behalf of the plaintiff.” There is no doubt, that this instruction means, that if Mason owns or has contracted for landings for the ferry on one side or the other of the river, this meets the requirements of the law. This would do away with the necessity of a ferry-seat. This instruction does not propound a correct legal proposition.
But, does this erroneous instruction prejudice the defendant ? Judge Eaulkner so tersely and well states the law involved in this question, that I quote, approve, and adopt his language. “I assume this instruction must be construed to mean, if the jury are satisfied, that Mason owns or has contracted for the use of the land on the east or on the west bank, within the limits prescribed for the landings of said ferry that he has complied with the requirements of the law, and has established a legal ferry, whereas in fact, to entitle Mason to recover, the jury must have been satisfied, that Mason owned or had contracted for the use of the land on the east bank at this point, which was the seat of his ferry. The ownership or right to use land on the west side was not nec
“The case of Dinges v. Branson, 14 W. Va. 100, belongs to a class of cases in entire harmony with those cited. The record then before the Appellate Court did not show that the instructions if erroneous could have affected the verdict; and the rule is the judgment will be reversed unless it affirmatively and clearly appears, that the erroneous instruction could not have misled the jury; the failure of showing, that
The learned judge then proceeds to review the evidence and show under the rule above laid down, that no injury resulted to the Bridge Company by this instruction. Much evidence was introduced before the judge without objection, that was wholly irrelevant to the issue. The plaintfft in the issue seemed content to fight over again questions which had been, definitely settled by the Appellate Court on the former appeal. If any one question was so settled on the former appeal, it was, that Mason had the right to the ferry-seat and had a legally established ferry. That should have been assumed to he true on the trial of this issue. There was no evidence before the jury tending to show, that since the rendition of the former decree appealed from Mason had lost his right to the ferry-seat. The instruction could not therefore have prejudiced the defendant in the issue.
But it is claimed, that the instruction was inconsistent with another instruction given. If this is true, it was error to give it; hut for the foregoing reasons it was not an error,for which tlie judgment would he reversed, as it clearly appears from the record, that the defendant was not prejudiced by it.
Exception Ho. 9 was to the refusal of the court to grant deefndant’s instructions Hos. 2, 3 and 5, and to the granting in lieu of Ho. 3, instructions Hos; 3 and 3|. This exception has already been disposed of in considering exceptions Hos. 1, 2 and 3.
The only remaining exception to he considered is exception Ho. 8, to the judgment of the court in refusing to set aside the verdict and grant a new trial. There are six grounds stated for setting aside the verdict, as follows: “It
Iu considering these questions we agree, that the rule of damages to be applied is the same as in condemnation cases. But this being under the peculiar circumstances of this case an issue quantum damnificaatus, in considering the question, as to whether the verdict was justified by the evidence, the same rule must be applied as is applied to verdicts on issues out of chancery and issues demsamt vel non. That rule is, that where the bill of exceptions certifies the evidence and not the facts proven on the trial, the Appellate Court will not reverse the decree and grant a new trial of the issue, unless by rejecting all the parol evidence of the exceptor in conflict with the evidence of the other party, and giving full faith and credit to that of the adversé party the decree of the court in overruling the motion for a new trial still appears to be wrong. Nease v. Capehart, 15 W. Va. 299; Webb v. Dye, 18 W. Va. Applying this rule to the case at bar we cannot say, that the verdict was contrary to the evidence. It clearly appeared, that Mason had rented his ferry for a year for eight hundred dollars, and that the opening of the bridge would render his ferry worthless. If before the bridge was constructed his ferry-francliise was worth eight hundred dollars per annum or even considerably less, and after the opening of the bridge the travel would all go to the bridge and none to the ferry, so that his franchise would be worthless, then we should unhesitatingly say, that the verdict was justified by the evidence, and the amount of damages was not excessive.
The alleged misdirection of the court, we have already considered.
"We do not think the verdict ivas contrary to the instructions of the covtrt.
But it is insisted by counsel for appellant, that the jury applied an improper rule for their finding; that their damages were speculative; that they evidently regarded Mason’s ferry-francliise as permanent, whereas the Legislature might destroy it at its next session, and the rate of tolls might be
It seems to me, that unless we act upon the presumption, that the franchise will continue to exist, we have positively no rule, by which the damages could be measured at all. Grants of franchises are constantly, being made to railroad corporations with a clause reserving the right to amend or repeal the grant. Suppose, another corporation in the exercise of the right of eminent domain should seek to condemn a part of the properly of such corporations in estimating the damages should the court or jury take into consideration the possibility of the repeal by the Legislature of the charter ? I think not. It is presumed,- that that which exists, will continue. I see no reason for setting aside the verdict.
Did the court err in the decree it entered? Counsel for appellant insist, that the court had no right to order an exe
The decree of the circuit court of Jefferson county is reversed at the cost of J. M. Mason, the-appellee; and this court proceeding to render such decree upon the verdict of said jury, as the circuit should have rendered, it is ordered, that when the appellant, the Harper’s Berry Bridge Company, pays to the appellee, -J. M. Mason, the sum of -ten thousand dollars, the amount ascertained by the jury as damages to said ferry-franchise by the construction and operation of the bridge of appellant, the said injunction shall be wholly dissolved; but until said sum of ten thousand dollars damages so ascertained as aforesaid is so paid to the said J. M. Mason, the injunction heretofore awarded in this suit enjoining and re
Beobee Reversed.