Wheeling Bridge & T. Ry. Co. v. Camden Consol. Oil Co.
| Decision Date | 13 June 1891 |
| Citation | 13 S.E. 369,35 W.Va. 205 |
| Parties | Wheeling Bridge & T. Ry. Co. v. Camden Consolidated Oil Co. |
| Court | West Virginia Supreme Court |
Submitted June 6, 1891.
Syllabus by the Court.
1. A railroad company chartered under the general law of the state may complete and operate a part of its railroad, and, as to the part so completed and operated, retain its corporate existence, franchise, and powers. Chapter 54, § 66, Code (Ed. 1887.)
2. A railroad company organized under such general law may build and construct lateral and branch roads not exceeding 50 miles in length, and use and operate any part or portion of their main line and br anch or branches when completed, the same as though the whole of the proposed railroad were fully completed. Chapter 54, § 69, Code 1887.
3. Such branches may have, in part, a common stem leading from the main line,-that is, there may be a branch from a branch,-provided the limit as to length is not exceeded.
4. Under the provisions of the general law of this state, the filing of the map and profile of the location of the railroad in the office of the secretary of state, and in the office of the clerk of the county court of each county in which any part of the road is located, is not in law a condition precedent to the appointment of commissioners to ascertain a just compensation to the owners of the real estate proposed to be lawfully taken for the purpose of such road; but the circuit court may, in its discretion, require such map and profile, or such part as may be needed, to be filed or produced before appointing such commissioners.
5. The delivery of the certificate of incorporation of such company or of a copy thereof properly certified, to the clerk of the county court for record in the county in which the principal office or place of business of such company is, is not a condition precedent to the proper and lawful exercise of the right to condemn.
Error to circuit court, Ohio county; Joseph R. Paull, Judge.
This is a writ of error to the judgment and rulings of the circuit court of Ohio county in a proceeding by way of petition on the part of the railway company to condemn certain real estate belonging to the Camden Consolidated Oil Company. The constitution of the state of West Virginia requires that "the legislature shall provide for the organization of all corporations hereafter to be created by general laws uniform as to the class to which they relate; but no corporation shall be created by special law." Const W.Va. art 11, § 1; Code W.Va. (Warth's Ed.) p. 40. In pursuance of this requirement, the legislature has from time to time enacted the law as we now find it in chapters 52-55, pp. 484-559, Code W.Va. Under this law the railway company became incorporated and received its charter on the 6th day of March, 1882, but by the name of the "Wheeling & Harrisburg Railway Company of West Virginia." On the 12th day of September, 1889, the name was changed to the present one, "Wheeling Bridge & Terminal Railway Company." The railroad which this corporation proposed to build commences at the west corporation line of the city of Wheeling, in Ohio county, on the line between the state of Ohio and the state of West Virginia, and is to run thence by the most practicable route to a point in Marshall county, at or near where the line between the state of West Virginia and the state of Pennsylvania is crossed by Wheeling creek The city of Wheeling, by ordinance of its council passed February 28, 1888, which took effect May 28, 1888, gave its consent that this railway company might construct, maintain, and operate a branch railroad for terminal and connecting tracks and facilities in the city of Wheeling, subject to certain restrictions and conditions which need not here be mentioned; and on the 18th day of January, 1889, the city passed another ordinance on the subject. This railroad company has already built along its main line a double-track railroad bridge across the Ohio river, two double-track tunnels,-one 557 feet long; the other 1,203 feet long,-to a point called the "Peninsula," in the valley of Wheeling creek, and a branch from that point down Wheeling creek, on the south side, thence through Chapline hill, by a double-track tunnel 2,460 feet long, to the lower end of the city of Wheeling, on the Ohio river. The railway company has found it necessary for its legitimate purpose to have a freight station near the northern portal of its Chapline-Hill tunnel; but there is no room on the south side of Wheeling creek. Therefore it is compelled to build a switch or branch across Wheeling creek to the north side for that purpose; and this proceeding has been instituted for the condemnation of the land in question, lying on the north side, belonging to the oil company. The oil company appeared in the court below, and resisted such condemnation, putting its objections in the form of seven common-law pleas, which it tendered and offered to file, to each of which the plaintiff objected. The court rejected pleas numbered 1, 2, 4, and 5, but permitted numbers 3, 6, and 7 to be filed, on which issues were made up, and tried by a jury. During the trial the court gave at the instance of plaintiff, and against the objection of defendant, seven several instructions. The defendant then moved that the jury be directed to find in writing upon three several questions of fact written out for the purpose, (see section 5, c. 131, Code, p. 813;) but the court refused, and, the case being submitted to the jury, they returned for plaintiff a general verdict on the issues joined, also a special finding for plaintiff on each of the issues joined on the three pleas filed. Thereupon the defendant moved the court to set aside the verdict, and grant it a new trial; but the court overruled the motion and proceeded to appoint five commissioners, in accordance with section 10, c. 42, p. 312, of the Code, to ascertain what would be a just compensation to defendant for each parcel of real estate proposed to be taken. To all these rulings against defendant it excepted, the evidence being certified, and the cause is now here for review.
The serious question intended to be presented by this record grows out of the rejection of pleas Nos. 1 and 2. Section 65, c. 54, p. 525, Code, (Warth's 2d Ed.,) reads: "Every such corporation shall, within a reasonable time after its railroad is located, cause to be made a map and profile thereof, with the names of the owners of the lands through which it runs, and of the noted places along the same stated thereon, and file the same in the office of the secretary of state, and in the office of the clerk of the county court of each county in which any part of said road is located." Plea No. 1 avers, in substance that plaintiff had failed to comply with this section as to its main line, although a portion of such road had been located for the space of one year before the beginning of this proceeding. Plea No. 2 makes the same averment as to the lateral or branch railroad mentioned in plaintiff's petition. Is the filing of such map and profile of location a condition precedent to the right to condemn land? It is not in express terms made a condition precedent to the exercise of such right, and, if it be such, it must arise from an implication reasonably necessary. By chapter 54, § 34, p. 512, Code, when the certificate of incorporation shall have been issued and delivered as provided, "the corporators named in the articles of incorporation recited therein, and who have signed the same, and their successors and assigns, shall from the date of said certificate become and be a body corporate, as therein stated, and, as such, authorized to proceed to carry into effect the object set forth in said articles of incorporation, in accordance with the provisions of this chapter." Chapter 42 of the Code confers upon railroad companies, among others, the right to take private property for the construction of their roads, and prescribes the prerequisites and the method of procedure, and among them is the requirement that the application be in writing, "describing with reasonable certainty the real estate proposed to be taken;" so that to give a particular and certain description to the owner of the land proposed to be taken cannot be the sole purpose of requiring the map and profile to be filed, but rather that its location as a whole may be accessible to the public, and a description of the extent and limits of the real estate owned by the railway company may be preserved. And the court below has the right to require that the description of the land proposed to be taken be made certain and definite, and, if deemed necessary to that end, to require a map and profile of the location, as far as it has been made, to be filed or produced; for the law contemplates that construction of the road may be commenced, and therefore, if necessary, condemnation of the land be bad, before a final location of the whole road, as intended and set out, has been made; for section 69 of chapter 54 provides that "any railroad company organized under this chapter may build and construct lateral and branch roads or tram ways, and of any gauge whatever, not exceeding fifty miles in length; and it may build planes and gravity roads, use and operate any part or portion of their main line and branch or branches, when completed, the same as though the whole of their said proposed railway was fully completed." So, again, our statute contemplates, in fact requires, in this particular, as a necessary prerequisite to the right of condemnation, that the railroad corporation shall acquire such real estate by purchase, if it can agree with the owners. Section 48, c. 54, p. 518, Code. And in this instance the...
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