32 W. Va. 46 | W. Va. | 1889
Writ of error to a judgment of the Circuit Court of Wood
The first question presented is: lias this court jurisdiction of the case? The defendant in error, the Little Kana-wha Navigation Company, is a domestic corporation. It was first incorporated by statute in 1863 and was authorized to improve the navigation of the Little Kanawha and Hughes rivers by locks and dams, sluices, canals or other usual modes of improvement, commencing at or near the mouth of the Little Kanawha river, and extending up the same and Hughes river so far, as may be deemed practicable, with power to condemn lands and to “charge and receive such tolls for the use of their [its] improvement as may be fixed by the Board of Public Works or by law.” By an act passed March 4, 1868, the legislature amended the charter of the company-and therein prescribed specific tolls to be charged by the company, and among others fixed the rate of “toll on timber and logs at two cents per hundred cubic feet per mile.”
The facts certified in this ease show, that said company accepted the said charter and improved both of the aforesaid rivers; that it had constructed several locks and dams on the Little Kanawha below the mouth of Hughes river, one at Leach town, thirteen miles from the mouth of the Little Kana-wha river, and another at Shacktown, four miles from the mouth of said river; that these locks and dams were-during the whole month of February, 1887, in good order and condition; that about the 17th day of February, 1887, the defendant, Miller, passed twenty two rafts of logs from a point about one mile
The counsel for Miller, in their brief, say : “The question involved is not whether these tolls or lockages were excessive, but whether, at the time they were demanded and quoad this transaction, the plaintiff had the right to levy any tolls whatever.” This is a correct statement of the only plea or ground of defence made by the defendant in this case. He concedes, that, if he is not legally entitled to use the river without the payment of tolls, when by reason of the high water in the river he can pass over the dams without using the locks, then he is liable for the tolls, which the plaintiff has charged him, and that the judgment of the Circuit Court must be affirmed.
But on the other hand the counsel for the plaintiff1 contend, that the question presented is not, whether the plaintiff had the legal right to levy tolls, but whether the defendant owed the amount recovered by the plaintiff in this case, and that, the amount recovered being less than $100.00, this Court has no jurisdiction to review the judgment of the Circuit Court.
The third section of article VIII of our constitution declares,' that the Supreme Court of Appeals “shall have appellate jurisdiction in civil cases, (1) where the matter in controversy exclusive of costs is of greater value or amount than $100.00 ; (2) in controversies concerning the title or boundaries of land, the probate of wills, the appointment or qualification of a personal representative, guardian, committee or curator; (8) or concerning a mill, road, way, ferry or landing; (4) or the right of a corporation or county to levy tolls or taxes; and (5) also in cases of quo warranto, habeas corpus” etc. Our statute carrying into effect these provisions is substantially the same as the constitution. Code, c. 135, s. 1.
As the amount in controversy in this case is less than
The act of 1792 defining the jurisdiction of the Supreme Court of Appeals of Virginia, under which the first two of the above-cited cases were decided, provided, that said Court should have jurisdiction, where “the matter in controversy should be equal in value exclusive of costs to $100.00 or be a freehold or franchise.” Under this statute it was decided in Hutchinson v. Kellam, 3 Munf. 202, that, “ to give the court of appeals jurisdiction, on the ground that the matter in controversy is a freehold or franchise, the right to the freehold or franchise must be directly the subject of the action not incidentally or collaterally.” This was an action of trespass’quare clausum fregit, and the record showed, that the title or hounds of land was drawn in question, but, as the damages recovered were less than $100.00, the jurisdiction was denied. Cabell, J., in his opinion says : “ To give this court jurisdiction, the matter in controversy must be equal in value to $100.00, or must be a freehold or franchise. The action of trespass is one in which damages only are recovered, and, although the title or bounds of land may be incidentally and collaterally brought in question, yet the value of the matter in controversy is, from the very nature of the action, the value of the damages sustained by the trespass ; and this, as well where the' title or bounds of land may be drawn in question as where they may in no manner be involved in the dispute.” This view of the case was concurred in by Judges Roane and Fleming.
The case of Skipwith v. Young, supra, was an action on the case for injury to the plaintiff's family and to his adjoining land occasioned by the erection of a mill anddam by the defendant. It plainly appeared from the pleading in the case,
In 1819, after the two foregoing decisions had been rendered, the statute was amended by authorizing appeals as of right in controversies concerning roads, mills etc., and yet after this change in the statute the court in Hancock v. Railroad Co., 3 Gratt. 328, decided, that “ appeals as of right from orders of the County Court in controversies concerning roads only exist, where the controversy is concerning the establishment of a road, and not where it is a collateral controversy concerning the damages' occasioned by a road already established.” And subsequently in 1852 the court in Clark v. Brown, supra, decided that, “ in an action on the
In Neal v. Com., 21 Graft. 511, the town of Danville assessed Neal with a double tax for failing to take out a license as a commission-merchant, and he applied to the corporation-court of that town to be relieved from said tax, on the ground that he was not bound to take out such license. The amount of the tax was less than $500.00, and said court refused to relieve Neal from the tax. On appeal the Supreme Court held, that the appeal did not lie, and dismissed it, because the amount in controversy -was less than $500.00. In delivering the opinion of the court Moncüre, P. after deciding, thát it was a civil and not a criminal case, proceeds to
This Court, in Greathouse v. Sapp, 26 W. Va. 87, after reviewing and approving the aforesaid cases of Hutchinson v. Kellam and Skipwith v. Young, as well as referring to many other cases, held : “If in au action of trespass quare clausum freqit the damages recovered be less than $100.00, the defendant can not obtain a writ of error from this Court, though it appears from the record, that the title or boundaries of the land were drawn in question.” This case, it seems to me, decides the question before us. The provision, under which the jurisdiction was claimed in that case, is that the court shall have jurisdiction in controversies “concerning thetitle of boundaries of land.” If the mere fact, that the title to laud was drawn in question in the case, did not confer jurisdiction, as we decided in that case, it inevitably follows, that the mere fact, that the right of a corporation to levy tolls is drawn in question in the case at bar, will not confer jurisdiction.
There are two provisions of the constitution affecting these cases; that is, the language applicable to the one case is, “concerning the title or boundaries of land,” and to the other, “concerning the right of a corporation or of a county to levy tolls or taxes.” The word “concerning” is used in each class and must therefore have the same effect in both. If it requires a direct proceeding in the one instance to confer jurisdiction, it roust be equally direct in order to confer jurisdiction in the other; and it having been held both in this state and in decisions ©f the Supreme Court of Virginia, which are binding upon this Court, that in order to confer jurisdiction independently of the amount in controversy it is
For these reasons, and in accordance with authorities before referred to I am of opinion, that this Court has no jurisdiction to review the judgment of the Circuit Court in this case.
Having decided this question upon the constitutional and statutory provisions of this State as construed by our own Court and the Court of Appeals of Virginia in decisions, which are binding upon us; it is irrelevant to refer to the decisions of other states relied on by counsel for the plaintiff in error to sustain the jurisdiction of this Court, because, even if the statutes of those states are the same as our own, still the decisions made under them, if not in accord with our own, would not warrant us in departing from the construction given to our constitution and statutes by our own courts.
It is, however, insisted, that the only direct proceeding, by which the right of a corporation to levy .tolls can be put in issue, is by quo warranto; and, as our constitution in terms gives this Court appellate-jurisdiction in all cases of quo war-ranto, the provision of the constitution now in question, if the construction we have given it is sustained, would be wholly
Dismissed.