Kanawha, G.J. & E.R. Co. v. Glen Jean, L.L. & D.W.R. Co.
| Citation | 30 S.E. 86,45 W.Va. 119 |
| Parties | KANAWHA, G.J.& E.R. CO. v. GLEN JEAN, L.L. & D.W.R.CO. |
| Decision Date | 22 April 1898 |
| Court | Supreme Court of West Virginia |
Submitted January 26, 1898
Syllabus by the Court.
1. A railroad company claiming adverse right and title to a right of way lawfully in the possession of a rival company by virtue of condemnatory proceedings, cannot enjoin the latter company from proceeding to construct its road until just compensation is paid to the former company. But the disputed right and title must first be settled at law.
2. As between rival railroad companies, priority of location gives priority of title, which is perfected by after-condemnation. The title thus acquired is derived from the state by virtue of its right of eminent domain, and entirely supersedes and annuls the title of the landowner on payment of just compensation to him, and reinvests the same in the applicant therefor.
3. Where the right of eminent domain has been exercised in behalf of a railroad company, and the land has been condemned, damages assessed and paid, and the company placed in possession of such land, the title thereby acquired, in so far as it is without reservation, becomes adverse to all other claimants of the property so condemned. Nor can such proceedings be collaterally attacked, except for fraud.
Appeal from circuit court, Fayette county; J.M. McWhorter, Judge.
Bill by the Kanawha, Glen Jean & Eastern Railroad Company against the Glen Jean, Lower Loup & Deep Water Railroad Company for an injunction and equitable relief. From a judgment for plaintiff, defendant appeals. Reversed.
Brannon P., dissenting.
J.W Davis and A. D. Preston, for appellant.
Brown Jackson & Knight and J.D. McKell, for appellee.
On the 31st day of October, 1895, the Glen Jean, Lower Loup & Deep Water Railroad Company, in accordance with its charter, began to locate the line of its road through the lands of Thomas G McKell, in the county of Fayette, and continued the same until completed on the 2d day of November. On the 1st day of November, 1895, a certificate of incorporation was issued to the Kanawha, Glen Jean & Eastern Railroad Company, the incorporators being Thomas G. McKell, 246 shares, M. Jackson, 1 share, R.G. Quarrier, 1 share, J.F. Brown, 1 share, and E.W. Knight, 1 share; making 250 shares. The incorporaors forthwith held a meeting, and directed subscription books to be opened under the supervision of E.W. Knight and M. Jackson at the office of Brown, Jackson & Knight, in the city of Charleston, the subscription to be reported to a meeting of the stockholders to be called by them when the subscription should exceed one-twentieth of the capital stock of the company. On the next day the committe reported that T.G. McKell had subscribed 10 more shares of stock, and the corporators immediately proceeded to elect themselves a board of directors, without publishing the notices for four successive weeks, as required in section 36, c. 54, Code. The board of directors passed some by-laws, and proceeded to organize by electing T.G. McKell president, J.W. Brown vice president, E.W. Knight secretary, and S.M. Veall, who was neither a director not stockholder, treasurer. It then being represented that the line of the road would pass throught the lands of Thomas G. McKell, Mr. McKell, who was the president and the whole of the corporation except four shares owned by his attorneys, retired from the meeting, which at once appointed E.W. Knight to negotiate with Mr. McKell for the right of way through his lands. This was accomplished, and the meeting reassembled, and the right of way was accepted at $12,300, and other land was bargained for at $300 per acre, according to the necessities of the company. Mr. McKell signed the deed, and it was immediately forwarded to Fayette county for recordation. There was no public notice of any of these meetings, but they were all held, charter obtained, land purchased, and conveyance recorded in the space of two days. On the 5th of November, 1895, the Glen Jean, Lower Loup & Deep Water Railroad Company served notice on Thomas G. McKell that it was about to institute proceedings in the circuit court of Fayette county for the condemnation of his land for the use of its road as located and platted. Thomas G. McKell appeared, and on his petition the proceedings of condemnation were removed into the circuit court of the United States at Charleston. Mr. McKell therein appeared, and filed a disclaimer as to part of the land proposed to be taken, and alleged the title was in the Kanawha, Glen Jean & Eastern Railroad Company by virtue of his deed made as aforesaid. The proceedings were thereupon stayed until the notice required by statute should be given the said Kanawha, Glen Jean & Eastern Railroad Company. What further action was taken by the court on this disclaimer does not appear, as only excerpts from the record are presented on either side in this case. Arguments of counsel and oral testimony are not proper in support of so important a question, as the record itself is the only sufficient proof thereof. It is plain, however, from the final order filed that the court did dispose of such disclaimer in some manner favorable to the defendant, for the land is condemned and given to it. It cannot be presumed that the court disregarded the statute, and declined to summon a party shown to be interested in the land proposed to be taken, but it must have either summoned the plaintiff, or decided the defendant's right was the prior and better right to the land. It is not a sufficient answer to this to say that only McKell's title was condemned, but it is the reserved title of the state, which is paramount thereto, and used to oust McKell's title; the proceeding, so far as taking the land is concerned, being in the nature of a proceeding in rem, while the assessement of damages is a proceeding in personam. the right of the defendant to take the land for public use cannot be controverted. So the only question at issue and only reason why the plaintiff was, in any event, a necessary party to the condemnation proceedings, was that it might receive its proportionate share of the damages assessed. That the court condemned the land, and not the mere title of McKell, is shown by the latter part of its order, to wit: The plaintiff alleges two grounds for injunction:
1. That the land proposed to be taken is indispensable to it for its purposes, and that it could not be adequately compensated for the loss of the same by the recovery of damages. This appears to be abandoned in the proof and argument, as the statute authorizes the condemnation and taking of just such property by rival railway companies, and any work or grading by the plaintiff was undertaken and done after it had full actual notice of defendant's condemantion proceedings, as its officers, directors, and stockholders were either attorneys therein or a party thereto, and was, therefore, done in violation of defendant's rights acquired by survey and location of its road.
2. That is had not been secured or paid a just compensation for the land taken. It is plain from its order that the circuit court assessed full damages for the whole of the land, and made no reservation of plaintiff's claim in regard thereto. If it did not require plaintiff notified of the proceedings according to section 8, c. 42, Code, it may have been because it thought it was the duty of the plaintiff to intervene by petition or other appropriate procedure if it desired to share in the damages, for the reason that it obtained its deed, and placed it on record, after the appropriation proceedings were commenced by survey and location of the route. 3 Elliott, R.R. p. 1450, § 1001. Or it may have been because it considered plaintiff's deed made with intent to delay and hinder defendant in the acquirement of that which it was lawfully entitled to, and therefore void under section 1, c 74, Code, which reads: "Every gift conveyance, assignment or transfer of, or charge upon any estate, real or personal, every suit commenced, or decree, judgment, or execution suffered of obtained, and every bond or other writing given, with intent to delay, hinder or defraud creditors, purchasers or other persons, of or from what they are or may be lawfully entitled to, shall as to such creditors, purchasers or other persons, their representatives or assigns, be void." The circumstances surrounding the incorporation, the organization, and the execution of the deed certainly tend to raise a presumption of an intent to delay and hinder the defendant in lawfully acquiring title to the land. Such has been, and, if permitted to stand, in the way, such will be, the effect...
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