41 S.E.2d 111 | W. Va. | 1946
This certificate involves the rulings of the Circuit Court of Wayne County, in overruling defendant's demurrers to the original and amended bills of complaint in the suit of Charles Thacker against Ashland Oil Refining Company, in which plaintiff prays that defendant, its agents, servants, employees, officers and representatives be enjoined from the further use of two six-inch pipe lines along secondary road No. 1, in the transportation of gasoline and other petroleum products from its two plants in Boyd County, Kentucky, erected for the purpose of manufacturing gasoline and other petroleum products, to defendant's terminal station at Kenova, West Virginia.
The pertinent allegations of the original bill of complaint are:
By two deeds dated September 27, 1919, and by a third dated February 3, 1920, plaintiff became the owner *522 in fee of three tracts of land situate on Big Sandy River, Ceredo District, Wayne County, which, according to a survey made in 1933, had an acreage of 27.062 acres, but which has been increased by accretion from the river by five acres, more or less; that the public road or highway originally known as Wayne County's Road Project No. 152, bordering on plaintiff's land on the eastern side and adjacent thereto, has been used as a public road for many years prior to and since plaintiff acquired his lands.
By deed dated May 23, 1930, plaintiff, his wife joining therein, for the consideration of one dollar and "the benefits that will accrue to said parties of the first part from the construction of a (or a change in the) County District road over their lands known as the Big Sandy road, leading from Kenova to Coal Branch", granted to the County Court of Wayne County a parcel of land to be used "for County road purposes". The land conveyed is alleged to be a part of a larger tract owned by the grantors, and a part of the right-of-way included in Wayne County Road Project No. 152, and contains six/tenths acres, more or less, twenty-five/one-hundredths of which was contained in the "old road right of way, leaving 0.35 Acres to be acquired by this instrument", which latter is situate adjacent to the old road right-of-way on the west and extends from the northerly-northeasterly corner of plaintiff's land southerly up Big Sandy River and along the old road right-of-way to the south-easterly corner of plaintiff's lands, a distance of about twelve hundred seventy feet.
Prior to laying of the two pipe lines, plaintiff had built a dwelling house and barn nearby the land conveyed by said deed and immediately west thereof at respectively thirty-one feet and four feet from the common line between the strip of land, conveyed to the county court by the deed of May 23, 1930, and plaintiff's land, the house having been occupied by plaintiff and his family since 1923. Plaintiff alleges that the dwelling house is worth about five thousand dollars and the land is valuable for *523 the raising of corn and the conduct of a dairy business, and has a production under normal conditions of approximately two thousand bushels of corn annually.
Plaintiff is a resident, citizen and taxpayer of Wayne County, and has been such from the time he purchased said lands to the present time; and defendant is a corporation under the laws of the State of Kentucky which, prior to the laying of the pipe lines, had built two plants for the purpose of manufacturing gasoline and other products of petroleum, located on the Big Sandy River a distance of one and a half miles above plaintiff's lands, and defendant has been engaged in the operation of the first plant and the distribution of petroleum products therefrom and is preparing, as plaintiff is informed and believes, to operate a second plant for the same purposes, and transport the products from both plants through the two pipe lines to its terminal station at Kenova.
Upon defendant's written application, dated July 6, 1943, the state road commission gave to defendant permission to install two six-inch pipe lines parallel to and a minimum distance of eighteen feet from the center line of the road, restricting the installation to not less than twenty-four inches below the surface of the land and eighteen inches below the ditch line. The certificate of the commission provides that the permit is "subject to all regulation now or hereafter adopted by the State Road Commission"; that the lines are to be constructed and maintained as directed by the commission; and that they are to be used solely for the purpose of carrying petroleum oil products, and not for natural or artificial gas. When plaintiff heard that an application might be made to the commission for a permit for the construction of the lines, he protested to the state road commission, controverting its authority to grant the permit, and asserting that the lines, if laid on the proposed location, would be a hazard to plaintiff, his family and others, and that the lines are apt to break under stress of continuous slipping of the earth in which they were to be laid. *524
Plaintiff did not know that permission had been granted prior to July 28, 1943, but on July 31, 1943, defendant entered upon the strip of land and began laying the two six-inch pipe lines on the part of said strip which was conveyed to the county court by the Thacker deed of May 23, 1930. On July 31, 1943, plaintiff served a written notice upon defendant, stating that defendant is without authority to lay the pipe lines; that they constitute an unlawful hazard to the safety of plaintiff, his family and property, and interfere with the use of the highway; and that unless defendant ceases its work in installing the lines, plaintiff would seek such redress as the law might afford. Later on August 3, 1943, the pipe lines not having been fully installed, plaintiff served an additional notice upon defendant. Notwithstanding these notices defendant continued the work of installing the lines, placing them on the outer two feet of the state road commission's right-of-way mentioned in the permit. Upon information and belief, plaintiff alleges that defendant has been operating the pipe lines in the transportation of high test octane gasoline and other gasoline and petroleum products, propelled from defendant's plants to its terminal by a centrifugal pump or compression devices at a very high pressure, so that the operation of the lines constitutes an unlawful hazard to plaintiff, his family, and the users of the highway and damage to plaintiff's property; and that if no direct injury be done to plaintiff's property and the improvements there will result a diminution of the value of the property, and said pipe lines constitute a public nuisance.
Plaintiff alleges that the permit from the state road commission is unlawful, because defendant is not a public utility or a public service corporation, but is engaged in private business and cannot be given or use a grant of such nature in a public road, and that such authority does not reside in the commission under Code,
It is further alleged that the Norfolk and Western Railway Company's tracks are situate immediately east of plaintiff's lands and the road at an elevation above the same, along plaintiff's lands and parallel to the public road; that by reason of the weight of the tracks and equipment of the railway structure, the embankment, grade and fill for the same, and the nature of the soil and strata underlying the roadbed of said railway, slips and slides have occurred on the railway right-of-way and roadbed, the effect of which has been to move the public road, or parts of it, and that despite repeated efforts of the railway company such movement will continue and there will be further slips and slides down the hill, against and into the public road, resulting in its further disturbance, thus greatly enhancing the danger and hazard to plaintiff, his family, his property, and to others using the public road by reason of breaks in the pipe lines and the escape of gasoline and other petroleum products therefrom.
It is alleged that the laying, maintenance and operation of the pipe lines and the passage of gasoline and other petroleum products therethrough is a public and a private nuisance, of which plaintiff, as the owner and user of the said lands and said road, and as a resident, citizen, taxpayer and abutting owner, has a right to complain.
And finally the bill of complaint prays that defendant, its agents, servants, employees, officers and representatives be restrained from further use and employment of the pipe lines in the road, and that they be required to remove the same along and adjoining plaintiff's lands.
During the pendency of this suit, plaintiff filed an amended and supplemental bill of complaint, in which the prayer of the original bill was renewed, and which asserts that on December 17, 1943, one of the pipe lines *526 described in the bill broke at a point about opposite the center of plaintiff's barn; that gasoline was discharged therefrom and ran in a stream over the bank of the road and became dammed up against plaintiff's barn for one and a half hours before defendant repaired the break; that the break was caused by pressure from the hillside and under the road as described in plaintiff's original bill; that the pipe lines will break again if permitted to remain in the road; and that, upon information and belief, defective pipe and unskillful methods have been used in the installation of said lines and in the maintenance thereof. The amended and supplemental bill reiterates the allegation of the original bill that the pipe lines and the fluid which passes through them under pressure are a nuisance and menace; and also alleges that a culvert header of concrete about eight feet long, four and a half feet high, and fourteen and a half inches thick on the edge of the road at a point a short distance above plaintiff's house and barn where the lines run over the culvert behind the header has been caused to break by the slipping of the earth, thereby causing the concrete reenforcement to part in the middle, which, upon information and belief, will cause another break in the lines at any time at that point.
Initially, it is contended by counsel for plaintiff that the state road commission was without power to issue to defendant, a private corporation operating for private purposes only, the permit purporting to authorize defendant to install in the public road in question the pipe lines described in the permit. In the consideration of this question, it is to be noted that pursuant to "The Good Roads Amendment of 1920", to the Constitution of West Virginia, directing the Legislature to make provision by statute "for a system of state roads and highways connecting at least the various county seats of the state, and to be under the control and supervision of such state officers and agencies as may be prescribed by law", the Legislature enacted into law Chapter 112 of the Acts of 1921, which, as appears from the enactment itself, constituted a comprehensive statute providing, among other *527 things, for "a complete system of laws for this state governing the construction, reconstruction, maintenance and repair of all public roads, ways and bridges, and the regulation of traffic thereon * * *." Chapter 40, Acts of the West Virginia Legislature, First Extraordinary Session, 1933, amending and reenacting the 1921 statute, in Article II-A, Section 9 thereof, provides that the commissioner shall exercise "general supervision over the state road program and the construction and maintenance of state roads" and "any other power that may be necessary or proper for the orderly conduct of his business and the effective discharge of his duties."
Code,
"That nothing herein contained shall be so construed as to prevent any oil or gas company or person having a proper permit or franchise from transporting oil or gasoline along any of the public highways of this State, nor to give such company a franchise without paying to the landowners through whose lands such road passes the usual and customary compensation paid or to be paid to the landowners for such right of way. * * *."
And Acts, 1933, First Extraordinary Session, Chapter 40, Article IV, Section 8, provides:
"* * * nor shall any person, firm or corporation enter upon or construct any works in or upon such road, or lay or maintain thereon or thereunder any drainage, sewer or water pipes, gas pipes, electric conduits or other pipes, * * * except under such restrictions, conditions and regulations as may be prescribed by the state road commissioner."
The written permission of the state road commission to defendant, Ashland Oil Refining Company, evidently was given under Code,
"* * * No road or highway shall be dug up for laying or placing pipes, sewers, poles, or wires, or for *528 other purposes, * * * without the written permit of the commission or county court, or its duly authorized agent, and then only in accordance with the regulations of the commission or court. The work shall be done under the supervision and to the satisfaction of the commission or court; * * *."
Thus it appears that it was the policy of the Legislature in the enactment of the aforesaid statutes to provide a comprehensive and all-embracing system of statutory law, establishing a general state road system, consisting of the primary and secondary roads of the State and providing for and investing in the commission and the commissioner the exclusive power over the construction, maintenance and control of said system and to delegate to the commission, or its duly authorized agent, the exclusive right to grant to any corporation or person a written permit to lay, place, maintain and operate pipe lines for the transportation of gas, oil or gasoline, in and along the right-of-ways of primary and secondary roads, supervise construction of the same, and prescribe restrictions, conditions and regulations covering the laying and maintenance of said pipes, subject, however, to the proviso contained in Code,
The plaintiff claims that the instant permit is invalid because the state road commission is without power to grant a permit to a private individual or corporation to lay, maintain and operate pipes on a public road for the transportation of oil or petroleum products for private purposes. Attention is called to the fact that the foregoing *529
going statutes do not expressly authorize the issuance of such a permit. It is to be noted, however, that there is no express requirement contained in the statutes that the permittee shall be a public utility engaged in a public enterprise. The use of public highways and streets for the last-mentioned purpose has been recognized by this Court in a number of cases.Watson v. Fairmont S. R. Co.,
"The owner of coal with mining rights, including use of the surface in mining and marketing his coal, has a right to transport his coal across and above a public road established on the land, under proper regulations, conditions and restrictions, designed for full protection of the public in the use of the road."
In that case the evidence was in conflict as to whether some of the supports of the tripple were within the thirty-foot roadway of the road as it was originally established. It appears, however, that the state road commission took over the road, began the construction of a state highway and required the county court to furnish a right-of-way 105 feet wide. The new project necessarily embraces the site of the tripple whether partly on the *531 thirty-foot roadway or entirely off it. The state road commission, after notice to Adams, caused the tipple to be blown up and removed. The county court brought a proceeding in eminent domain to ascertain what compensation should be paid Adams for his structures, buildings and mineral and mining rights taken or damaged by the public improvement, and this Court sustained a judgment in defendant's favor based upon a jury verdict awarding in that suit damages resulting from such improvement. In the two last-mentioned cases the construction on the public road was for purely private purposes and the test supplied by the Court in those cases is whether the construction interfered with the public travel and constituted a public nuisance. Applying this test to the instant case, we think that the commission had the statutory power to issue the permit in question.
But counsel for plaintiff, evidently mindful of the fact that the pleadings show that plaintiff's dwelling house is within a distance of one hundred feet from the pipe lines in question, cite Code,
"That a company, organized for the purpose of transporting natural gas, petroleum or water, * * * may appropriate so much thereof [land], as may be deemed necessary for the laying down of such tubing *532 and piping and for the erection of tanks and the location of stations along such line, and the erection of such buildings as may be necessary for the purpose aforesaid; such appropriations shall be made and conducted in accordance with the law providing for compensation to the owners of private property taken for public use; Provided, That no dwelling house, yard, or garden shall be taken for such purpose, nor shall any oil tank, gas or oil pipe line be erected or laid within one hundred feet of any occupied dwelling house without the consent of the owner thereof. And so far as the rights of the public therein are concerned, the county commissioners as to public roads, and the council of any municipal corporation, as to streets and alleys, in their respective jurisdictions, may, subject to such regulations and restrictions as they may prescribe, grant to such company the right to lay such tubing and piping therein; * * *."
At the time of the enactment of said Chapter CXIII and until the revision of the Code in 1931, it was appended to said Chapter 52, which dealt with corporations. Code,
But plaintiff's counsel, citing the recent case ofHark v. Mountain Fork Lumber Co.,
Under the first ground of distinction, it is to be noted that in the Hark case there was no conveyance or formal dedication of the roadway by the owners in fee, and under point 1., syllabus of that case, the public acquired only an easement for a public road. But in the instant case the Thacker deed to the County Court of Wayne County was an absolute grant in fee simple, though the deed provides in the habendum clause that it is "to be used for county road purposes." The consideration recited in the deed, in addition to the one dollar receipted for therein, is "benefits that will accrue to said parties of the first part from the construction of a (or a change in the) County-district road. * * *." The Thacker deed is strikingly similar to that involved in Killgore v. County Court of CabellCounty,
The second ground of distinction appears quite clearly from a comparison of the two cases. The public road in theHark case was narrow. The tramway, unlike the pipe lines in the instant case, occupied the roadbed of a public road, and from the plats, photographs and other evidence in that case the logging trains at and near the Hark land occupied substantially the full width of the traversable part of the public road, so that with the passage of the trains from time to time there became a complete obstruction of the road for other vehicular traffic, which constituted a public nuisance, resulting in special damage to plaintiffs. In the instant case the pipe lines are buried twenty-four inches beneath the surface of the road, and the pleadings do not allege that they are on or within the roadbed of the road; there is no technical trespass because the lines are within the confines of the public road; and there is no additional burden upon an easement because there is no easement to burden. *537
The third ground of distinction between the Hark case and the case at bar appears from a reading of the statement of facts in the Hark opinion in connection with Code,
Plaintiff, having no title to the part of the public road which adjoins his property, and the pipe lines being within the confines of the legal right-of-way thereof, would not be entitled to the injunction he seeks unless the pipe lines constitute a public nuisance which results in substantial injury to him which is other and different from that inflicted upon the public in general, both in degree and character.Keystone Bridge Co. v. Summers,
The allegation in the amended and supplemental bill to the effect that the pipe line was caused to break on one occasion is based upon the alleged negligence of defendant in the maintenance and operation of the pipe lines. If plaintiff was proximately injured thereby, he, of course, would have his action at law, and such injury would not be the basis of injunctive relief. The fact that one break occurred in the lines is not a proper basis for the conjecture that future breaks will occur. In Pope Bros. Co. v. Bridgewater Gas Co.,
For the foregoing reasons we reverse the rulings of the circuit court in overruling defendant's demurrers to plaintiff's original and amended and supplemental bills of complaint.
Rulings reversed. *539