102 Va. 795 | Va. | 1904
delivered the opinion of the court.
In October, 1898, the Hewport Hews, Hampton & Old Point Railway Company was the owner of an electric street railway
This new company obtained a franchise to double track and parallel itself in the city of Newport News. In May, 1899, it obtained from the Council of the town of Hampton the right to construct and operate an additional street railway track on, over, and along Armistead avenue and Queen street, being the streets theretofore occupied by a single track; and during the same ■ month (May, 1899), obtained from the Board of Supervisors of Elizabeth City county the right to double track where there had been theretofore a single track, “from Gatewood’s corner to Libby’s corner, on Mellen street, on, over, and along the county road now occupied by said company.” A portion of this latter grant from the Board of Supervisors was over certain county roads and streets, which on April 1, 1900, became part of the town of Phoebus, which town was incorporated by an act of the General Assembly of Virginia, approved January 22, 1900, and in force on and after April 1, 1900. Acts 1899-1900, p. 98.
That portion of the route authorized to be double-tracked by the Board of Supervisors, described as “from Gatewood’s corner to Libby’s corner, on Mellen street,” is a distance of 7,176 feet. The distance from Gatewood’s corner to the corporation line of
Hnder the provisions of section 8 of the above-mentioned ordinance, it was provided, that the Hampton Eoads Eailway & Electric Company commence its work in Phoebus within one year, and that its road be completed within two years from Janu
The decision of the case turns upon whether or not the appellant, by reason of the grant to it by the Board of Supervisors
The only authority the Board of Supervisors of Elizabeth City county had to confer the right upon appellant to occupy with its tracks any of the roads or streets within the limits of the county, grows out of the terms of the charter of appellant, which provides that before appellant could occupy the county roads and highways in the counties of Elizabeth City and Warwick, the consent of the Board of Supervisors of the respective counties should be first obtained to the location of the line or lines on the streets and highways within their respective limits and jurisdictions. The fifth section of the charter by which the company is authorized to locate its line or lines on the streets and highways in the counties and towns through which it proposed to run its line or lines, provides that it might be done, “after having first obtained the franchise, or permission so to do, from the duly constituted authorities”; and further provides that “for the purposes of this act the said company shall, and is hereby expressly invested with all the powers, rights, privileges and franchises conferred, and subject to all the restrictions imposed by chapter 46 of the Code of Virginia of 1887, and the Acts of the General Assembly of Virginia amendatory thereof, and other laws of the State of Virginia as far as applicable.” Section
“Sec. 1093. Streets, etc., of city or town not to be occupied without their assent; damages to lots to be paid owners.—Eo company shall cross or occupy with its works the streets or alleys, public or private, of any city of town, without the assent of the corporate authorities thereof, unless such assent be dispensed with by special provision of law; and in ease any lot or lots along the line of such streets or alleys, shall by such occupation or crossing, be impaired in value, such company shall, before crossing or occupying such streets or alleys, make compensation therefor to the owner of the same; said compensation, if the parties cannot agree upon the same, to be ascertained in the mode prescribed by this chapter.”
This section indicates an adherence to the general policy of this State to require municipal consent to the occupancy of its streets by a railway company. In accordance with this policy it was held in Wash. & Alex. & Mt. V. Ry. Co. v. City Council of Alexandria, 98 Va. 344, 36 S. E. 385, that the power of a city to control and regulate its streets is an inherent and a continuing power, to be exercised as often as and whenever the City Oouncil may think proper, subject only to the limitation that it must act in good faith, and that the regulation must be reasonable, and not imposed arbitrarily or capriciously, the presumption being in favor of the propriety and validity of what the city has directed to be done.
In R., F. &. P. P. Co. v. City of Richmond, 26 Gratt. 83, it is said, the right in a municipality to control the use of the streets, and to provide for the safety, comfort and general welfare of the citizens therein residing, is an inherent right. In that case, which was appealed to the Supreme Court of the United States (96 U. S. 521, 24 L. Ed. 134) the decision of this court was affirmed, which held that the ordinance of the city of Richmond forbidding the use of steam engines upon its streets
In Baltimore v. Baltimore Trust, &c. Co., 166 U. S. 673, 17 Sup. Ct. 696, 41 L. Ed. 1160, it was held, that the right of a street railway company under an ordinance to lay tracks in the streets is subject to reasonable regulations by subsequent ordinances as to the use of the streets, and that, although a street railway company had been granted a franchise to lay a double track in a street, a subsequent ordinance restricting its right to the use of a single track is not an unreasonable restriction of the company’s right, or a material modification of a prior ordinance granting the company permission to lay double track in the streets for many miles, and that a failure to provide any compensation to the street railway company for taking up one track in the street in which it has laid a double track, after notice from the city authorities to permit but one track on the street, does not make the ordinance unreasonable. According to that case, which is a well-reasoned one, it would have been a valid exercise of the discretion of the Town Council of Phoebus to provide that appellant should not lay a double track in Mellen street, even had that right been conferred by a previous ordinance of the town; and that it would not have been a violation of any vested right in appellant, growing out of the previous ordinance. The right of the Board of Supervisors to control Mellen street, after it had been severed from the county of Elizabeth City and became a part of the territory within the limits of the town of Phoebus, ceased, and the control of Mellen street was from that time as absolutely under the control of the town authorities of
In Ogden City Ry. Co. v. Ogden City, 7 Utah, 207, 26 Pac. 288, the city granted the plantiff railway company the right to lay a track in a street, and afterwards granted defendant the right to lay a double-track railway in the same street. Before defendants commenced work, plaintiff sought to enjoin them from laying their track, and to have the ordinance giving them a right of way declared void, alleging that it (plaintiff) had constructed a single track, and that, if it were to lay down its other track, and defendants their two tracks, other modes of public travel would be obstructed, and also that defendants’ wires and poles ■would interfere with plaintiff’s rights as the owner of property abutting on the street. Held, “that a demurrer to the complaint was properly sustained.” This decision is in accordance with the principle enunciated in the authorities cited above, that" a municipality has an inherent and continuing right to control and regulate the use of its streets within its limits. In Henderson v. Ogden City Ry. Co., cited in the last-named case, the opinion says, such railroads and their business are subject to the police power, which the government cannot divest itself of by contract or otherwise, and, being so possessed of it, it is its duty to make use of it whenever the public good demands that it shall. The Legislature did not authorize the City Council of Ogden Oity to grant to the appellants the exclusive right of way upon the street-in question, nor do we think it had the power to do it. 7 Utah, 199, 26 Pac. 286.
Whether the establishment of a double track system of electric railway in a street, in addition to a single track system already there, would unduly overcrowd the street and render it unsafe to travellers thereon, is a matter for the public to deal with, and not a competing corporation seeking to maintain a monopoly in the street. Grand Rapids Bridge Co. v. Pranze, 35 Mich. 400, 24 Am. Rep. 585.
In the case at bar the appellant, for about eighteen months, had used only a single track on Mellen street, the cars thereon running in but one direction and returning, as has been remarked, upon another street, and did no act indicating an intention to furnish reasonable facilities for the accommodation of the public on Mellen street, until appellee, in the exercise of the right conferred upon it by its charter and the ordinance of the Council of Phoebus, began work in locating its tracks upon Mellen street, and had been enjoined at the suit of the appellant from further proceeding with its work. There is nothing whatever in the charter of appellant, or in the permit granted it by the Board of Supervisors of Elizabeth City county authorizing it to lay a double track upon Mellen street, that indicates an intention on the part of the granting power to confer upon appellant exclusive right to use and occupy Mellen street for the operation of a street ear line. There is nothing in the acts done
It abundantly appears in the record that from the coming into existence of the appellee company it has been obstructed,
The argument of the case has taken a very much wider range than the issues to be determined justify, and, therefore, we have not undertaken to consider all of the many questions discussed, nor to review the innumerable authorities cited.
Upon the whole case we are of opinion that the decree appealed from is right, and should be affirmed.
Affirmed.