23 W. Va. 406 | W. Va. | 1884
The proper determination of the questions involved in this cause will depend largely upon the true construction of section 9 of article 8 of our Constitution. See Acts of 1872-73, p. 6. It is as follows: “Private property shall not be taken or damaged for public use, without just compensation; nor shall the same be taken by any company, incorporated for the purpose of internal improvement, until just compensation shall have been paid or secured to be paid to the owner; and when private property shall be taken or damaged, for public use for the use of such corporations the compensation to the owner shall be ascertained in such manner as may be prescribed by7 general law: Provided that when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders.” This was a substitute for the provision in our previous Constitution of 1861, which was: “Private property shall not be taken for public uses without just compensation.” See Constitution of 1863, article 2 section 6; Code of West Virginia p. 21.
There had been some diversity of opinion as to the construction of this provision in our old Constitution. A provision similar to it and expressed in very similar language had been incorporated in nearly all the Constitutions of the
Kent in his Commentaries, volume 2 p. 399, says: “The Constitution of the United States, and of most of the States of the Union, have imposed a great and valuable chock upon the exercise of legislative power bty declaring, that private property should not be taken for public use without just compensation. A provision for compensation is a necessary attendant on the due and constitutional exercise of the power of the Legislature to deprive an individual of his property without his consent; and this principle in American constitutional jurisprudence is founded on natural equity, and is laid down by jurists as an acknowledged principle of universal law.” In a note to this passage he says: “The better opinion is, that the compensation or offer of it, must precede or be concurrent with the seizure or entry upon private property under the authority of the State. The government is bouud in such cases, to provide some tribunal for the assessment of the compensation or indemnity, before which each party may meet and discuss their claims on equal terms; and if the government proceed without taking these steps, their officers and agents may and ought to be restrained by injunction. An injunction was granted by the court of chancery in Gardner v. Village of Newbury, and it was also sustained by the supreme court of Louisiana in a like case, 2 Johns. Chy. Rep. 162; Henderson v. Mayor, &c., of New Orleans, 5 La. 416. The civil Code of Louisiana article 489 had declared, that there must be the -previous indemnity, and so did the civil Code of Napoleon article 445, and the constitutional charter of Louis XVIII. The provisions of ottr American Constitutions are essentially the same, though not in the same words precisely, and it would seem to require the same-
These views have been very generally approved by the judicial decisions in the United States,.and especially by the decisions binding on this Court as authority. Thus in Tuckahoe Canal Co. v. Tuckahoe Railroad Co., 11 Leigh 77, 78, Tucker, P., says: “Is it necessary to the validity of the act that compensation shall be provided before the property can be taken ? The Constitution provides, that the Legislature shall pass no law whereby private property shall be taken for public uses without, just compensation, and although there is no express requisition that the act which invades the right shall provide the indemnity, yet after much reflection 1 incline to the opinion that it should do so. The instances which may occur flagrante bello of impressment and destruction of property, though at first view they may indicate a different construction, yet are rather to be referred to the necessities which war imposes, where the safety of the State is the supreme law, and justice is silenced by the din of arms.”
The Court of Appeals of this State has frequently approved of injunctions awarded by circuit courts enjoining the taking of land for public use before the payment of just compensation. See Freshwater v. Pittsburgh, Wheeling and Kentucky R. R. Co., 6 W. Va. 504; Pierpoint v. Town of Harrisville, 9 W. Va. 218; Boughner v. The Town of Clarksburg, 15 W. Va. 399. But while a corporation will be enjoined from taking private property for public use without having first instituted under the statute-law the proper proceedings for
These provisions of our statute-law seem to be in perfect accord with the spirit and language of our present Constitution. They secure to the owner, where his land is taken by a railroad for public use, the payment in cash before the railroad company takes possession its value ascertained by' commissioners appointed by the court; but as this estimated value may not be a just compensation to the owner and has not been so adjudged by the court, the law very properly secures the payment of the residue of this just compensation, should there prove to be any, the moment it is ascertained, in what seems to me to be the most effectual manner; that is, by depriving the railroad company of the possession of this condemned land, for which they have paid in part, until they have paid the just compensation as ascertained by the coiu-t in full. This, it seems to me, is securing the payment ol this just compensation more effectually than by requiring the railroad company to give bond and approved security for
The railroad company should be required as our law requires it to pay the estimated val ue of the land taken before it is allowed to take possession of the land, and if this should prove not to be a just compensation, it should be required when it takes possession of the land to secure payment of the difference only between what is a just compensation and what it has paid in cash. Or what is still better it should be required as under our law to surrender the possession of the land the moment that the just compensation is ascertained, until this just compensation is paid. It seems to me that our statute-law carries out. the true spirit of our Constitution, doing exact justice as nearly as possible to both the railroad company and the land-owner. It enables the railroad company to take possession of the laud it needs at an early stage of the proceedings, and at the same time it gives to the landowner before the railroad company takes possession the cash value of his land according to the estimate of disinterested parties, and furnishes to him the best security, that if it should be ultimately determined that his just compensation exceeds what he has recovered, the excess will be promptly paid to him as soon as ascertained. For even if the railroad company is then insolvent, those who are operating it will have to pay the balance of this just compensation, as otherwise being deprived of the possession of this land they must
Another question as to the true interpretation of'this language, “private property shall not be taken for public uses without just compensation” found in the Constitution of the United States and in the Constitution of most of the States of this Union, and in our Constitution of 1863 has arisen, and has been the subject of considerable discussion and diversity of opinion among judges, and that is, the necessity of the word “taken” found in this clause of these Constitutions. Cooley in his work on Constitutional Limitations, side page 541, top page of the 5th edition 671, in answer to the question “what constitutes a taking of property ?” lays it down that: “Any proper exercise of the powers of government, which do not directly encroach upon the property of an individual, or disturb him in his possession or enjoyment will not entitle him to compensation or give him a right of action,” to support which proposition he refers to the following authorities: Zimmerman v. Union Canal Co., 1 W. & S. 346; Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71; Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Davidson v. Boston & Maine R. R. Co., 3 Cush. 91; Gould v. Hudson River R. R. Co., 12 Barb 616, and 6 N. Y. 522; Radcliff v. Mayor of Brooklyn, 4 N. Y. 195; Murray v. Meneffee, 20 Ark. 561; Hooker v. New Haven & Northampton Co., 14 Conn. 146; People v. Kerr, 27 N. Y. 188; Fuller v. Edgings, 11 Rich. Law 239; Richardson v. Vermont Central R. R. Co., 25 Vt. 465; Kennett’s Petition, 24 N. H. 139; Alexander v. Milwaukie, 16 Wis. 264; Richmond, &c., Co. v. Rogers, 1 Duvall 135; Harvey v. Lackawanna. R. R., 47 Pa. St. 428; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21; Railroad Co. v. Richmond, 96 U. S. 521.
In the last of these cases the court says: “That the appropriate regulation of the use of property is not ‘taking’ property within the meaning of the constitutional prohibition.” See p. 529. As examples of what is not regarded as the “taking” of private property for public uses, we may refer to changes made by a municipal corporation in the grade of a street though adjacent lots be greatly injured, yet this is no “taking” within the meaning of this constitutional pro
But admitting that the owner of land adjoining a highway or street has a right to the use of the highway, and that this right is as much property as the land itself, it does not seem to me that the building of an embankment between his house located mear the highway and the highway, which incom
Upon the question, whether the construction of a railroad on the street of a town with the consent of the town-council, which consent has been authorized by statutory law in its discretion to be given, is a taking of the property of the owners of adjoining lots under the provision, of the Constitution, which prohibits the taking of private property for public uses, there has been much controversy. In many States the answer to this question has been made to depend on, whether the owners of adjoining lots were or wore not the owners of the fee in the street, or whether the fée of the street was owned by the town, or city, or by the public. It being held, that if the fee of the street is owned by the adjoining owners of lots, though the public have a right to use the same as a highway and lor all purposes for which a street may be used by the public, yet if a railroad company is permitted to lay down a railroad track and to use steam as a motor for its cars by the consent of the council of the city or town, which
In_these cases and others like them there is generally no discussion as to whether the occupation by a railroad of a street, under these circumstances, is a taking of private property for public uses within the meaning of this word “taken” as used in the Constitution; hut in some of them it is said in general terms to be a taking, when the fee of the street is owned by the adjoining land owners, and in others nothing is said on the subject. The discussion in such cases has generally been rather, whether this use of a public street by a railroad company is imposing on it an additional burden beyond that which was imposed on it, when the town, city or public originally obtained an easement in it as a street. When so held it was decided, that the owners of adjoining-lots, who owned the fee in the street, were entitled to compensation, when it was occupied by such railroad, and when not so held it was decided, that they were not entitled to compensation, even thpugh the fee was in the owners of the adjoining lots. See Morris & Essex Railroad Co. v. The City of Newark, 2 Stock. Chy. 352; Day, C. J., in his dissenting opinion in Kucheman & Hinke v. C. C. & D. Railroad Co., 40 Iowa 366; Barney v. Keokuk, 94 U. S. 340.
It seems to me therefore, that these cases which hold that ■when such .railroad company under consent of the town-council occupies a street with its road the owners of adjoining lots, who own the fee in the street, are entitled to corn-pensation, do so on the ground, that the railroad company
In this last case a singular position was taken by a majority of the court, that if the fee of the street was in the owners of adjoining lots, and the railroad as in the ease before us was located in the middle of the street, so that it is one
These decisions, that the owners of adjoining lots along a street through which such railroad passes are entitled to no compensation when they do not own the fee of the street, must be based on the ground, that no matter how great is the injury to their property, it is no' taking of their property within the meaning of the Constitution, that private property shall not be taken for public use without just compensation. The gross injustice of holding that the owner of an adjoining lot because he did not own the fee could obtain no compensation, though his property should be almost ruined by the construction of a railroad in the street with the consent of the town-council immediately in front of his house, and cutting a deep cut there or throwing up a high embankment, while one, who happened to own this valueless fee was entitled to full compensation, though the railroad inflicted on him but very slight injury, made certain courts astute to bring within the provision of the Constitution requiring compensation to be paid, when private property was taken for public use, the case where the raiiroad was in a street the fee of which was not in the owner of an adjoining lot. This was done by holding, that the owners of lots have a peculiar interest in the adjacent street, which neither the local nor the general public can pretend to claim; a private right in the nature of an incorporeal hereditament attached to the contiguous ground; an incidental title to certain facilities and franchises secured to them by contract and by law, and
This last case however lays down the doctrine, that the use of a street for the site of a railroad track does not give a right ot action to the owners of adjacent lots, unless it materially hinders the ordinary use of the street; but when such use does unreasonably abridge the right of the owners of lots to use the street as a means of ingress and egress an action for damages will lie against the railroad company. We can not learn from the case, whether the lot-owners in' this case were the owners of the fee in the adjoining street ór not, and the court evidently considered this as immaterial. And all the cases which are last cited, aud some other similar ones, evidently regard it as immaterial in all cases 'whether the owners of adjoining lots were the owners of the fee in the street or not, because in either case they were entitled by this peculiar privilege as such lot-owners to the use of the street, which peculiar privilege was to he regarded as property taken by the railroad.
Others have held, what seems to us to he a more reasonable view, viz : That it was immaterial whether the owners of adjoining lots owned the fee or not. Their reason for this
A still different view has been taken in the case of Morris & Essex R. R. Co. v. The City of Newark, 2 Stockton’s Chy. R. 352, and by Ch. J. Day in Kuchman v. The C. C. & D. R. Co., 46 Iowa 366 (16 American Railway Cases 34) which is, that the authority to use a public highway or street for the purpose of a railroad, retaining the use of such highway or street for all ordinary purposes, subject only to the inconveniences of the railroad, is not such a -taking of private property from the owner of the fee of the adjacent lands, though he owns the fee in the street, as is contemplated by. the provision of the Constitution forbidding private property to be taken for public use without just compensation. The easement of the highway or street is in the public, although the fee is technically in the adjacent owner. -It is the easement only which is appropriated, and no right or title of the owner of the fee in the street is interfered with by the railroad. This position'though it appears to be very forcible does not seem to have been often taken by j udges. I think however, that the reason why it has been often ignored without even an attempt to answer it is capable of explanation, and it will be hereinafter explained according to my views.
According to some of the decisions, to which we have
Whether the fee in the highway or street is in the owner of the adjoining lot or in the original grantor or in the town or city is a question ot interpretation or interest. It depends upon the interest of the parties to he gathered from the description of the premises conveyed, read in connection with other parts of the deed, and by reference to the situation ot the lands and the condition and relation of the parties to those and other lands in the vicinity. If a highway is established through one’s lands the fee continues in the original owner of the land, and if the highway is discontinued the exclusive use and ownership reverts to the original owner. Some have attempted to draw a distinction between highways in the country and .streets in a town, based on the greater public inconvenience of permitting the fee of streets to be owned by individuals. But while the public or town authorities unquestionably have a right to use streets in a town for many purposes, for which a highway in the country could not be legitimately used, and while the easement of the public in a street in a town is more extensive than the easement of the public in a road in the country, yet I apprehend that, when unaffected by statutory provisions, which is often the case, the fee in the streets of a town and in a public road in the country would be in individuals or in the public authorities of the town or county, according to the interest of the grantors in the deed on the principles above stated. In either case the grantor may. sell to the middle of the county road or to the middle of the street, or he may sell to
There are authorities which hold, that if the owner of land in a town opens a public street in it, and sells a lot on each side by such boundaries as bring them only to the edge of the street, the fee of the soil covered by the street remains in him and descends to his heirs. This conclusion is reached because it is said, that one piece of land can not pass as appurtenant to another, which-is certainly true, and hence it is said the fee of the street cannot pass as appurtenant to the adjoining lots. This would seem to be true. "But. on the other hand it is said to be a settled principle, that in matters of boundaries, a reference to monuments existing on the soil controls a description by courses and distances, because the purchaser supposes his grant extends to these natural limits, which he can see and judge of, and he supposes the courses and distances correspond with them; this he takes to be so upon trust. Now a highway or street- is cpiite as much a monument for the purposes of making a boundary in legal signification as a stream, a rock or a tree. At what precise point or place in this monument of the highway is the legal boundary, always an ideal line, to be found? When any other monument is called for, the legal terminus of the grant is at the central line of the monument, whether it be atree, a rock or a stream, and it should be the same when the monument is a highway or street. The middle of the highway or street is the legal boundary though the distance only brings the lot to the line of the highway or street, that is, to the monument the center of which is the true boundary.
As I regard it as immaterial in this as well as in all cases where the question is, whether owners of adjoining lots are entitled to compensation from a railroad company legally occupying a street, whether the lot-owners own the fee ol the street to its centre or whether they claim to the edge of the street, I will not cite the authorities on this controverted question, but will content myself with stating the above general views. I will cite however the Virginia authorities bearing on the subject. They are Mayo v. Murchie, 3 Munf. 358; James River & Kanawha Co. v. Anderson, 12 Leigh 278; Skeen v.
This question has been further complicated by legislation, many States by statutes declaring, that the fee where lands are dedicated by individuals to towns and cities for streets shall be in such towns and cities; and as most of the towns in Virginia, as well as a number in West Virginia, have been created by special statutes, it is in argument insisted, that in many cases a true construction of these statutes should lead the courts to the conclusion, that the'fee of the streets of these towns is in the-towns, and not in the owners of adjoining lands. Doubtless the town of Point Pleasant was so created, but the special statute creating it .was not referred to in the pleadings in this cause nor in the proof, and I cannot say whether it would affect the question as to whether the streets are vested in fee in the corporation of Point Pleasant or belong to the owners of adjacent lots. It is well therefore that I have reached the conclusion that in this case it is immaterial where this fee is vested. Streets are public highways under the control of cities and towns, but subject always to the paramount authority of the State. See Southwest. R. R. Co. v. Philadelphia, 47 Penn. St. 314. The Legislature has power to authorize the building of a railroad on the streets of a town or city. Tennessee and Alabama R. R. Co. v. Adams, 3 Head (Tenn.) 596. Therefore when the Legislature by statute directly authorizes^ a company to build a railroad in the street of a town, either with or without the consent of.tlje town-council, such railroad company so long as it keeps within the scope of the power granted, is completely protected from indictment for a public nuisance and from proceedings either at law or in equity in behalf of the public therefor.. See People v. Law, 34 Barb. (N. Y.) 494; Com. v. Reed, 34 Penn. St. 275; King v. Pease, 4 B. & Ad. 30. But it is only when the nuisance is a necessary and probable, result of the act done- in pursuance of legislative authority, that the grant operates as a protection against indictment or suit therefor. This is well illustrated in Richardson v. Vermont Central Railroad Co., 25 Vt. 465, in which
Judge Redfield after reviewing the cases in which it was held, that if a railroad company by proper legislative authority builds its road in a street of a town it is liable to compensate the owners of adjoining lots for damages to their lots, the necessary result of making their road where these parties own the fee in the street, but it is not liable for such damages if the fee of the street is owned by the town, says: “There is great difficulty, as it seems to us, in supporting important distinctions upon the tact, that the fee was originally taken for the use of the public instead of a mere easement. If the fee is appropriated or dedicated it is for a particular use only; and it is a conditional fee — afee on condition that the land continue (o be occupied for that purpose. The practical difference in the cases is, that when the fee is taken the possession of the original owner is excluded ; and in the case of city streets, when there is occasion to devote them to many other purposes besides those of passage, but neverthe
The distinctions taken too between the cases where the owners of the lots adjoining the street, on which such railroad is located, own the fee of the street by the true construction of their title-deeds, and where the original grantor owns the fee by the true construction of the title-deeds of the present owners of the adjoining lots whereby in the one case full compensation is allowed for all damages done to the owners of the adjoining lots, and in the other case no compensation is allowed such lot-owners seems to me eminently unjust, and I think T can show, that it is merely fanciful and founded upon no solid legal principle. This ' distinction is rendered the more outrageous because in almost every case these adjacent lot-owners would not until the court decided the point know, whether they owned the fee in the street or whether it was owned by the original grantor; first because practically till the making of such railroad in the street it was a matter of no importance to them whether they owned the fee in the street or not, as they had the same use of the street in either case; and secondly because in many cases it would require the decision of a court to determine where the fee of the street really was. There must be some reason why so many courts,' whose judges were eminent jurists, should have drawn so many nice distinctions, which we think lead to gross injustice, and which cannot really be sustained by sound reasoning. We think we can perceive what has led to this great conflict of authority and to these over-nice distinctions.
These original decisions I think were right, for the reason assigned in the case of Morris & Essex Railroad Company v. The City of Newark, 2 Stockton’s Chy. (N. J.) 352. The court in that case uses this language : “It follows that where a public highway is used in common with the public, under the sanction of legislative authority, it may enjoy such use without making compensation to the owners in fee of the adjacent lands, and that the Legislature may authorize such use without providing compensation to the owners in fee of the adjacent lands, even under the existing Constitution of the Stfite, which provides that individuals or private corporations shall not be authorized to take private property for public use without just compensation first made to the owners. The authority to use a public highway for the purpose
Now it is well settled and universally admitted, that where a person or a corporation is vested with authority by the Legislature to do an act in regard to which they will be perfectly protected from all responsibility, and will be liable to no suit either at law or in equity, provided that what they are authorized to do is done carefully and skillfully, though without such authority it would have been a nuisance, but if doné carelessly and uuskillfully and damages result from such carelessness and want of skill, they will be responsible. See Biscoe v. Great Eastern Railway Co., L. R. 16 Eq. Cas. 640; Penny v. Southeastern Ry. Co. 7 E. & B. 660; 26 L. I. Q. B. 225; Hammersmith & City Ry. Co. v. Brand, L. R. 4 H. L. 171; City of Glasgow Union Ry. Co. v. Hunter, L. R. 2 S. & D. 78; Radcliff v. Mayor, 4 N. Y. 195; Bellinger v. New York Central R. R. Co., 28 N. Y. 42; Newark Plank Road Co. v. Elmer, 1 Stockt. 760; Rigney v. City of Chicago, 102 Ill. 70 & 71 It is obvious therefore that when a railroad company is authorized by. the Legislature by an express statute or when authorized by a town-council by the authority of a legislative statute, which js the same, it can not either at common law or in a court of equity be sued or enjoined, if it is proceeding to build its road in such street carefully and skillfully, and in a manner least injurious to others. -And if the Constitution gives the owner of an adjoining lot no
Until the year 1870 there was no Constitution of a single State in this Union, which gave-the owner of an adjoining lot redress for such injury, no matter.how grievous it might be. Thus in many cases private propert}'- was greatly damaged for the public use, and the owner of such property had no redress, though the Constitution of each State in the Union furnished him redress if his private property was taken for public use. It was I apprehend the gross injustice and wrong done an individual by seriously damaging his private property without compensation, which induced many of the courts after construing for a time the Constitution in the manner in which the New Jersey court did in the case above cited, to abandon this just legal construction and to hold, that if the adjoining lot-owner owned the fee in the street, he might recover of a railroad company, which built its railroad in the street by authority of the Legislature, or enjoin it from building such road. This they could only legalU do by showing that the reasoning of this New Jersey court was unsound, and that such railroad company took the privateprop-erty of these lot-owners, and not simply th,e easement ot the town in the street. But this they did not do. In some cases they assumed, that this fee of the lot-owner in the street was taken, though it was obvious that his title or use of this fee was in no manner disturbed much less taken. But in many cases nothing was said about the taking of his fee in the street, though this was the only ground on which such action or injunction could be legally based; but these courts contented themselves with showing that the street was being used or was about to be used in a different manner from what was or could have been contemplated by the parties, when the street was originally opened or dedicated as a street, or, as they called it, this fee of the adjoining land-owner was subjected to additional servitude, and hence they argued he was entitled to damages or to enjoin the railroad company from subjecting this fee to this additional servitude.
It is difficult to comprehend what possible damage was sustained by the owner of the fee as such of the land, on which the street was located. Suppose such owner of this
But many courts having by this device done what they thought was common justice to the adjoining lot-owner, when he happened to own the fee in the land covered by the street, seemed to be at their wits’ end. and could see no way of awarding damages or giving compensation to the owner of adjoining'lots, who did not happen to own the fee in the land covered by the street. Yet it was obvious, that justice required that he should recover damages or be allowed an injunction when his adjoining lot was injured, if his neighbor who happened to own the fee in the land covered by the street was to be allowed to recover damages or obtain an injunction against the l’ailroad company. But after a while some of the courts found an ingenious device, by which they would be able to correct this gross injustice, and put the ad
In the first place it is very difficult to tell what is meant by “ this peculiar interest of the lot-owner, who owns no fee in the land in the street, which neither the local nor the general public can pretend to claim.” It certainly does not refer to the fact, that this lot-owner uses this part of the street oftener and to a greater extent than the general public. For any member of the general public has a right to use this portion of the street just as often and as much as he pleases; just as often and as much as this owner of the adjoining lot. The only peculiar interest of such lot-owner in such .street that the most ingenious have been able to suggest, so fa]’ as T know, is that they have a right to have this street kept perpetually open, while one of the general public could not prevent the town-council from closing it if they pleased. Let this be admitted, how does the location of a railroad in the middle of this street take away or affect the right to have
The evil to be remedied was, that the State as a sovereign had an unlimited right to appropriate and control individual property of any description for the public benefit as public safety, necessity, convenience or welfare might demand. This right was inherent in all governments, and it therefore required no constitutional provision to give it force. See Brown v. Beatty, 34 Miss. 227; Taylor v. Porter, 4 Hill 143. As Hogeboom, J., said in People v. Mayor, &c., of New York, 32 Barb. 112: “Title to property is always held upon the implied condition that it must he surrendered to the government, either in whole or in part, when the public necessities evidenced according to the established forms of law demand.” The Constitution of this State and of every State in the Hnion as well as the Constitution of the Hnited States provides, that private property shall not be taken for public use
If any corporation by legislative authority took private property for public use the Constitution of every State provided, that just compensation should he made therefor. But it often happened, that corporations and individuals in thus taking the private property of one person or corporation for public uses damaged the private property ot other persons, whose private property they did not take. They often did that, which hut for the legislative authority conferred on them, would have been a public or private nuisance. And it was well settled, as we have seen, that if they kept within the scope of the power granted to them, they were completely protected from either indictment or suit by private persons either in law or equity', provided they exercised their power in good faith and with care and skill, and that they damaged individuals whose property was not taken no more than was the necessary and probable result of so doing the act in pursuance of legislative authority. But when-the woi’k was done with care and skill great injury was often sustained on account of damages done persons, whose property was not taken. This injury was regarded by the law, as we have seen, as damnum absque injuria, and such persons whose property was not taken but only7 damaged for the public use, were entitled to no compensation. This was justly regarded as a great evil, and to mitigate it the courts frequently resorted to what I conceive were forced constructions and unwarranted devices, whereby persons whose property was
Our Constitution of 1872 wisely furnished a remedy for this great evil by providing, that private property shall not he damaged for public use without just compensation. The language of the provision is : “Private property shall not be taken or damaged for public use without just compensation ; nor shall the same be taken by any company incorporated for the purpose of internal improvement, until just eompensation shall have been paid or secured to be paid to the owner; and when private property shall be taken or damaged for public use or for the use of such corporations, the compensation to the owner shall be ascertained in such manner as shall be prescribed by general law; Provided, that when required by either of the parties such compensation shall be ascertained by an impartial jury of twelve freeholders.” See article III., sec. 9 of Constitution, Acts of 1872-73, pp. 6, 7.
The first question in this case is, whether the plaintifl is entitled to just compensation under this provision ot our Constitution for the damages alleged to have been sustained by her by the building or the proposed building by the Point Pleasant and Ohio Railroad Company of its approaches to the railroad bridge across the Ohio river, the said approaches or trestling being in the centre of Seventh street in the town of Point Pleasant, and about thirty feet high, and the lot of the plaintiff being on the corner of Main and Seventh streets, and having on it a dwelling-house opening on Main street as its front. On this bridge and trestling a railroad track is to be built. Permission was given said railroad company by the town-council of the town of Point Pleasant, on September 29, 1881, by an ordinance of said town to so occupy said street. This ordinance granted to this railroad
The evidence in reference to the amount of damages, which the plaintiff will sustain by the building of this trestle is very conflicting. The inference to be drawn from the testimony of the plaintiff’s witnesses is, that it will be very considerable, one of them estimating it at fifteen hundred dollars. The evidence on behalf of the defendants leads necessarily to the conclusion, that the damages sustained by the plaintiff from the building of the trestle in Seventh street would be very slight, as it would not obstruct the free use of Seventh street for all purposes, for which it is now or ever has been or is ever likely to be used; that a wagon can readily be driven through it in the rear of the plaintiff’s lot, and that by reason of open spaces in this trestle thirty feet wide, at intervals of every thirty feet, wagons passing in opposite directions could without any possible interference or danger pass each other, the one going in the one direction passing through one of these open spaces and taking the opposite side of Seventh street, the narrowest portion of Seventh street between the trestle and the sidewalk exceeding fourteen feet, a space most ample for the passage of any vehicle, and there could never be a necessity for two vehicles to pass in this width of the street as without difficulty the vehicle coming in one direction could occupy the street unobstructed on the north side of the trestle, and the vehicle coming in
It is obvious therefore* that the damage, if any, which the plaintiff will suffer by reason of the construction of this railroad in the manner it is proposed will be about as little as would be inflicted on any lot-owner on a street in any town through which a railroad runs. Now it is certainly true, that the question, whether the plaintiff has in such a case as this a right to have redress of some sort for the damages she may sustain, if any, can in no manner be affected by the amount of such damages, yet as we shall presently see the
In Stone v. Fairbury, Pontiac and Northwestern Railroad Company, 68 Ill. 394, (18 Am.) it was decided, that when smoke and cinders are thrown from the engines of a railroad company upon the plaintiff’s property and dwelling on a lot adjoining a street, through which a railroad runs, that the company is liable in an action on the case for the damages thereby occasioned by reason of the provision in the Constitution of Illinois of 1870, which likewise provided, that private property should not be taken or damaged for public use without just compensation. Under the reasoning of this decision, it might be questionable, whether the mere noise produced by the running of the cars would be such an injury as the plaintiff could legally complain of, as the court seems to think that the injury must be a physical injury to the lot. I am not, however, prepared to say, that in an action on the case under the provisions of our Constitution the damages must be immediate or physical in order to justify a recovery in an action on the case. On the contrary this seems to be too narrow a construction of the meaning of the word damages in this provision of our Constitution. This limitation of its meaning was disapproved afterwards in Rigney v. City of Chicago, 102 Ill. 64, where it was held, that a right of recovery in an action on the case under this provision of the Constitution existed in every case “where there was a direct physical obstruction or injury to the right of user or enjoyment of private property, by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally, which by the common-law in the absence of any constitutional or statutory provision gives a right of action.”
I do not deem it proper in this case to say, what is the true meaning of this word damages contained in this provision of our Constitution or to undertake to state in what cases damages may be recovered generally by virtue of this provision. But will content myself with saying, that if a railroad is by
In Johnson v. The City of Parkersburg, this Court decided, that an action on the case lay against a city, which by changing its grade by raising or depressing its streets permanently damaged private property, though prior to the adoption of' this provision of our Constitution no such action could be sustained, for such injury was damnum absque injuria. This decision accords with the spirit of the decision in Illinois rendered in 1882, in the case of Rigney v. City of Chicago, 102 Ill. 64. But it does not accord with the opinions of the court in Stetson v. Chicago & Evanstown R. R. Co., 75 Ill. 74, and Chicago, Milwaukee & St. Paul R. R. Co. v. Hall, 90 Ill. 42. ,If therefore the plaintiff in this ease has sustained or will sustain damages in consequence of a direct physical obstruction to the right of user or enjoyment of her property on Seventh street, caused by the railroad company which damages are peculiar to her as the owner of this property, and in excess of the damages or inconvenience sustained by the public generally, and which by the common law in the absence of any legislative authority to build such'road in said street could have been recovered of the railroad company, she may .sustain an action on the case for such damages.
The next inquiry is, admitting that she has sustained damage for which under our Constitution she has a right to sustain an action, should she on the facts appearing .in this case be left to her common-law remedy or has she a light to come into a court of equity and ask, that the railroad company be either perpetually enjoined from building its road in Seventh street or enjoined until her damages have been ascertained and paid to her? It is certainly true as I have hereinbefore stated, that it is settled law in this State sustained by several decisions, that if a railroad company enter upon and take the property of any person, and begin building upon it a railroad, before it has paid a just compensation to the owner, as agreed upon with him, or before such just
Now' it is obvious from these statutes, that a railroad company cannot condemn a street of a town nor can it even occupy it wfithout the corporate authority of such town first' consents to such occupation. It is plain therefore, that in this State no railroad company can ever acquire in the street of a town the fee thereof, though elsewhere it may acquire the fee. When it occupies with the consent of the authorities of the town the street of a town it acquires only a right of way through such street. This right of way is acquired without the consent of the lot-owners on such street, though they may own the fee of the land in such street, and had the Constitution or law' contemplated, that they were to be compensated before such street could be occupied by such railroad is it not apparent, that the law would have provided for the condemnation of their fee in the street, as it did in other cases ? The mere fact that the street is occupied by the railroad company without their consent and without any condemnation shows, that our view is correct, that corpora
The plaintiff therefore in this case has no right to obtain an injunction against the railroad company by reason of her owning the fee in the street. If she has such right at all it is only by reason of her being the owner of a lot bordering on the street, and she has thereby sustained or will sustain peculiar damage as such lot-owner by reason of the threatened occupation of the street by the railroad. Does this give her a right to such injunction ? The answer to this question must depend upon the construction of section 9, article 3 of our Constitution, Acts of 1872-73, p. 6. In constitutional doc. No. 24, page 4, printed at the end of Journal of Constitutional Convention of 1872 will be found this provision of our Constitution, as reported by the committee on the Bill of Eights with the amendments made thereto in the committee of the whole. The amendments made by the committee of the whole of the convention are in italics enclosed by inverted commas, and those -stricken out are in brackets, and the entire section with the amendments made by the committee of the whole and reported to the convention is thus shown. It is as follows’: Private property shall not be taken or damaged without just compensation, nor shall the same be taken (or damaged) by any company incorporated for the purposes of internal improvement until just compensation shall (be) “ha.vc been” paid “or secured to be paid” to the owner; and -when private property (is to) “shall” be taken or damaged for public use or for the use of such corporation the compensation to the owner shall be ascertained (by an impartial jury of(twelve freeholders) in such manner as may be prescribed by “general” law; “Provided, that when it is required
A comparison of this with section 9 of article 3 of our present Constitution, Acts of 1872 — 3, page 6, will show what changes were made by the convention in the report of the committee of the whole, but I desire to call special attention to one amendment to the report of the committee of the whole, which was made by the- convention, and inserted in the clause as it now appears in our Constitution. On March 13, 1872, the vote was taken on the motion to strike out the word damaged where it appeared the second time in the report of the committee of the whole. Their report reads “private property shall not he taken or damaged without just compensation nor shall the same be taken or damaged by any company, &c., until just compensation shall be paid, &c.” It was proposed to amend it so that it should, read: “Private property shall not be taken or damaged without just compensation, nor shall the same be taken by any company &c., until just compensation shall bo paid.” This amendment was passed, and the clause made to read as last given, leaving out the word damaged where it appeared the second time. This amend-' ment was carried by a vote of 48 ayes against 15 nays. It will be perceived at a glance that this change made by the convention in this clause of the Constitution was a most important one, and that it was made after the most careful consideration. The committee of the whole changed the report of the committee on the Bill of Rights. By the report of the committee on the Bill of Rights a marked difference was made between the case, where a company incorporated for the purpose of internal improvement took private property, and where they did not take it but only damaged it. In the one case they had to pay a just compensation to the owner, and in the other they had to pay it or secure it to be paid before they took the property. But in the last case which they had to pay damages done to property, they were not required to pay such damages before the same arose, that is, before they took possession of the adjoiningproperty and did upon it the work, from which the damages might arise.
The committee of the whole placed persons whose property was damaged on the same footing as persons whose
fSTo doubt cases may arise in which injunctions of each of these characters ought to be granted. If for instance a railroad company was authorized to build its road through the street of a town, and could as well build it on one side of the street as on the other, but if built on one side it would damage no one while if built on the other it would inflict serious
There was an agreement in writing in that case whereby this bridge, pending the controversy, was finished and used by the bridge-company; this agreement was a temporary arrangement, which was not to affect the rights of any of the parties. It is referred to on page 421. The only real question in controversy in that case was, whether Mason was entitled to damages for the destruction of his ferry-fránchise. It was totally immaterial to the parties, whether their damages were ascertained.in a suit at law or in this suit at chan-
The decisions in Illinois, where there is á constitutional provision similar to ours, sustain the conclusion which T have reached, that except under peculiar circumstances a court of equity will not enjoin a railroad company from making its road through a street, where it has received proper legislative consent to its so doing, till the damages, which it may do lot-owners on such street, are ascertained and paid or secured to be paid. The Constitution of Illinois adopted in 1870 had in it this provision: “Private property shall not be taken or damaged for public use without just compensation. Such compensation when not made by the State shall be ascertained by a jury, as shall be prescribed by law. The fee of lauds taken by railroads without the consent of the owner thereof shall remain in such owner, subject to the use for which it was taken.” Under this provision of their Constitution the court of appeals decided in Stetson v. The Chicago and Evanstown Railroad Co., 75 Ill. R. 74, that “where a railroad company under authority from a city or towu has located its road upon a public street or on other lands not belonging to the complainant, and* is constructing the same on which to operate its trains, a court of equity will not entertain a bill to restrain the operating of the road until the complainant’s damages to lots owned by him abutting on the street are ascertained and paid, but will leave him to his remedy at law.” It will at once be perceived, that, as the Illinois Constitution made no distinction between persons, whoso lauds were taken, and those whose lands were damaged, as ours does, that there would be much more difficulty in their courts holding, as they do, that an injunction would lie for a person, whose lands were taken, till his just compensation was secured and paid, but no such injunction
Yet excellent reasons are given by the Illinois court for this distinction. Among these reasons is this, that a railroad company ought not to be bound to stop and litigate the question of damage with every one who may claim to be injured. The English cases on a statute similar to this provison of the Illinois Constitution have been construed as not authorizing an injunction, where lands were not taken but merely damaged. The reason given is the impracticability in many cases of knowing whether damages will be sustained or not and of measuring them if they were certain. The court in that case says: “Where the party has settled his right to” damages in a court df law and ascertained their measure, if any reason exist why he cannot have execution of the same, equity will assist him but not before. Dunning v. The City of Aurora, 40 Ill. 481, and Bliss v. Kennedy, 43 Ill. 67;” see 76 Ill. R. p. 80.
So in The Peoria & Rock Island R. R. Co. v. Peter Schertz et al., 84 Ill. 135, the court held: “A court of equity will not assume jurisdiction to enjoin the use of a railroad tack upon a public street until the adjoining lot-holders’ damages shall have been assessed and paid, and this though the railroad company may be insolvent.” With reference to this question of insolvency the court on page 440 says: “When the plaintiff has settled his right to damages and ascertained the measure, if any reason exists on account of insolvency, why he cannot have execution of the same, equity will then assist him by injunction or otherwise but not before.” In reference to this suggestion I would say, that it occurs to me, that while this may be very reasonable as a general rule, there may be cases where an injunction would be granted because of the insolvency of the company, where, for instance, it could be truthfully alleged, that there was no probability that they or any one else would ever complete the road; or it might be proper to grant an injunction, if the road ran through more than one State and was insolvent and a receiver would probably be appointed by a federal court, as in
The only other State that T know of, which has a provision in its Constitution similar to that of Illinois and West Virginia is Colorado. Its Constitution declares, that private property shall not be taken or damaged for public or private use without just compensation. The only decision T have seen under this clause of this Constitution, is Mulladin v. Union Pacific R. R. Co., found in vol. 15 of the Reporter. The decision was, that the owners of lots abutting on a city street are entitled to compensation for the damages to their property by the use of the street by a railroad company. This was a common law suit. The conclusions reached correspond with the conclusions I have reached.
For the reasons I have stated I am of opinion that the order made in vacation in this cause on July JO, 1888, refusing to dissolve the injunction granted in this cause by said judge on April 16, 1883, must be reversed, set aside and annulled, and the appellant must recover of the appellee, Susan V. Spencer, its costs in this Court expended; and this Court proceeding to render such a decree as the said circuit-judge should have rendered, doth sustain the motion of the defendants to dissolve said injunction, and the said injunction is hereby wholly dissolved; and as the bill is wholly a bill seeking such injunction, it should be dismissed at the next term of the circuit court of Masou county with costs to the defendants, unless sufficient cause be shown against such dis-mission pursuant to section 13 of chapter T33 oí the Code of West Virginia; and this cause is remanded to the circuit court of Mason county to be thus proceeded with and to be further proceeded with according to the rules governing < courts of equity.
Reversed. RemaNDED.