49 W. Va. 528 | W. Va. | 1901
J. Fay Watson, the plaintiff below and appellee herein, filed his bill in equity in the circuit court of Marion County, November 30, 1900, to enjoin the appellants, B. K. McMechen and Fair-mont and Suburban Railway Company, from constructing and operating a street railway on Locust avenue in the city of Fair-mont, under an ordinance passed by the council of said city on (lie 20th day of June, 1900, granting to said McMechen, his successors and assigns, the right to construct, equip, maintain and operate such railway on and over all or any of the streets of said 'city which are twenty feet or more in width from curb to curb, the tracks to be laid in the middle of the streets as far as prac
The principal allegations of the bill are that Locust avenue is a narrow street running the entire length of the Fifth ward of said city and is the main or principal street in said ward for traveling and hauling and the only street by which large numbers of residents and property holders in said ward can reach their property; that a considerable portion of it is paved and on each side thereof is a large number of handsome and costly residences and business houses, now occupied; that the plaintiff is the owner in fee of a large acreage of real estate fronting and abutting on the northern side thereof for about one thousand four hundred feet, which real estate has been laid off into town lots, with streets and alleys laid off and graded; that the plaintiff has expended about forty thousand dollars within the past eighteen months in the construction of residences and business houses on said lots; that he and not the city of Fairmont is the owner in fee of the street upon which said property abuts to the center thereof, subject to the public right of way over the same; that, in several places, said street is not more than twelve or fifteen feet wide and if the defendants are permitted to go on and build said railway track it will result in great and irreparable injury and loss to the plaintiff,'will greatly lessen the width of the street, will not leave sufficient room for wagons, carriages and vehicles to pass on either side, of the track, will unneees-
The prayer is that the defendants be enjoined and restrained from digging up, excavating and grading said street and from building and constructing said street railway track thereon, until the damage; to plaintiffs said real estate and property be ascertained and a just compensation paid to plaintiff for the injury and damage resulting to, or that may hereafter result to, said property in consequence of the building, constructing and maintaining said street railway track in said street, and that the plaintiff be granted other and general relief.
On the 30th day of November, 1900, an injunction was granted according to the prayer of the bill. On December 1,
The amended bill adopts the allegations'and prayer of the original and further alleges that the railway company was incorporated to build and operate a railroad between designated points in Marion County and through the city of Fairmont and its charter does not authorize the construction and operation of a street'railway; that the assignment executed by McMechen to the railway company was not filed for record as aforesaid until December 4, 1900; and that the attempt by said city to grant to an individual or railroad company the right and privilege to exclusively use and occupy said street or any part thereof to the exclusion of the plaintiff and the traveling public is an usurpation of power and authority and therefore an ultra vires act. The ordinance is not exclusive on its face but the bill argues that it so operates as to that street. The additional prayer of the amended bill is that the ordinance be decreed to be invalid and void and rescinded, canceled and set aside and that the assignment be decreed to be void.
The answers are responsive to the bills and full and complete, denying all the alleged equities of the bills. It appears from the evidence that the paved portion of the street is twenty-four feet wide and the space between the fences, including the pavement and walks and spaces for walks not put in, varies from thirty-seven and one-tenth feet to forty and three-tenths feet. In the paved street the center is its highest point and from the crest or center to the sides the surface is a curve, extending to
The specific grounds of demurrer assigned are, first, that injunction is not the proper remedy for the injury sustained by the plaintiff, because he has 'an action at law for his damages, the object of the suit being not to prevent the taking of private property for public use, but merely to prevent damages thereto by reason of the lawful construction and operatioon of a work of internal improvement; second, that the bill does not allege facts from which it appears that the plaintiff will be irreparably injured, although it does allege that he will suffer such injury; third, that even if the averments, assailing the validity of the ordinance and the regularity of the incorporation of the company are true, the plaintiff, suing in his own behalf only, cannot complain of such invalidity and irregularity. Of these the second need not be noticed, and of the other two the last will be considered first, to the end that the case may be stripped of irrelevant discussion and the real question disclosed.
It is argued for the appellee that the ordinance is void because it amounts to a surrender of the police power of the city over the streets. The authorities cited in support of this contention are cases in which the question decided is that the council-has power to repeal an ordinance, granting privileges in the street,
The charter of said railway company contains this clause: “The railroad which this corporation proposes to build will commence at or near Scotdale in Marion County, West Virginia, and run thence by the most practicable route through the city of Fairmont and to points at or near Monongah in the county of Marion and ¡state of West Virginia, and will run to such other points in the counties of Marion, Monongalia and Harrison in the State of West Virginia as may be deemed practicable." It further states that the corporation is formed “for the purpose of constructing and operating a railroad in- the State of West Virginia." It nowhere states that it is to oe a street railway, and counsel for the appellee contends that, under this charter, the company is not authorized to construct and operate a street railway, citing Joyce on Electric Law, 150; Com. v. E. & N. E. R. R. Co., 27 Pa. St. 339; Stamford v. Stamford H. R. R. Co., 1 L. R. A. 375; and Mazet v. Pittsburg, 137 Pa. St. 553. The last case concerns a paving contract between the city and an individual and the contest is between them. It bears no sort of relation to the question raised. Stamford v. Stamford, holds that the town may restrain the company from laying its track in a street not designated in its charter, specifying the streets to be occupied, the sole authority of the company being contained in the charter and having been obtained directly from the legislature. The Fairmont company is operated under a franchise obtained from the city council under powers delegated to it by the legislature as well as under its charter or certificate of incorporation. This is a very important distinction between the two cases. Another is that in the case cited the proceeding was at the suit of the town and not of an individual. In Com. v. Ry. Co., the proceeding was on the part of the state, under a statute expressly authorizing it, and, therefore, different from this in two essential particulars. The citation in Joyce is found not to touch the question at all. As to whether a street railway is included in the term “railroad" must be determined in each case
For whatever damage the construction and operation of the railway may inflict upon the property of the plaintiff, if any,
The rule mentioned by Morawetz is well illustrated in Beach on Priv. Cor. s. 397, as follows: “Thus where a railway company is organized under a valid charter, and is shown to have done corporate acts under it, this is sufficient to establish a prima facie right to take property by eminent domain, and this prima facie right cannot be successfully assailed in a mere collateral proceeding. Proof that the petitioner is a corporation de fado- is all the law requires in this class of cases. Evidence, although it may be slight, of corporate acts done by petitioner, is accepted as sufficient. Thus where it appears that an engineer has been appointed, the line of the road has been located, and other steps taken towards the building of the road, these are corporate acts sufficient to show that the petitioner is a corporation de facto.”
The act of the railway company sought to be enjoined here does not go to the extreme of taking private property for public use and no stricter rule should be applied in this case than in the case of such a corporation in the exercise of the powers of eminent domain. The construction of the railway track in the
That tbis work of internal improvement may be built and operated it is not necessary that tbe grantee of tbe franchise should be incorporated at all. “Franchises are special privileges conferred by government upon individuals, and which do not belong to tbe citizens of tbe country generally, of common right.” 8 Am. & Eng. Ency. Law 585. “A franchise may be defined as a privilege or authority vested in certain persons by grant of the sovereign to exercise powérs or to do and perform acts which, without such grant, they could not do or perform.” Lewis on Eminent Domain, 135: “While no rule of. law demands it, they are usually conferred upon corporations for obvious resaons of good business policy.” 8 Am. & Eng. Ency. Law 586. This seems also to dispose of the objection by counsel for appellee that the city council had no authority to grant the franchise in question to McMechen, a private individual. Upon this contention, they cite Joyce on Elec. Law, 150, 151 and 202; and 2 Dill, on Mun. Cor. pp. 859 and 861. The sections cited in Joyce do not mention the question, and in Dillon, at page 861, the case of Brown v. Duplessis, 14 La. 842, is adverted to, holding that such grant may be made to private individuals.
The subjection of the streets to the use of the street railway company is simply the imposition thereon of an additional burden or servitude for the benefit of the public, although the company, the holder of the franchise, is privately interested in the enterprise in a manner different from all other persons. While it operates in the premises for private gain, it is at the same time an agency or instrumentality in the hands of the public authorities for the accomplishment of public ends, purposes and benefits. The public interest in such cases is dominant and that of the company and all other private persons is subordinated
The only remaining inquiry and the real question presented by the bill is, can the plaintiff, whose property is not to be taken or destroyed and thus virtually taken, by the railway company, in the construction and operation of its road, but only injured and damaged, enjoin the construction of the railway until his damages are ascertained and paid? It has already been shown herein that in building its road the railway company does not take the plaintiff’s fee in the street, and the bill does not claim that his adjoining property will bo destroyed or practically so by the railway, nor does this appear from the facts alleged. Thus the situation is the same as in the Spencer and Arbenz cases. In the former of these two cases, the Court held, “If a railroad company, without taking the land, damages it by the eonconstruction of its road, the owner of the land cannot, as a matter of right, enjoin said company so proceeding with the construction of its road till such damages are ascertained and paid; for section 9 of article III of our constitution, while it gives a right in such case to recover of a railroad company such dam
Tor the reasons aforesaid, the decree of the circuit court, perpetuating the injunction, must be reversed, the demurrers to the bill sustained, the injunction dissolved and the bills dismissed, and the defendants must recover their costs in the court below was well as in this Court.
Reversed.