Arbenz v.Wheeling & H. R. Co.
| Decision Date | 13 September 1889 |
| Citation | 33 W.Va. 1 |
| Court | West Virginia Supreme Court |
| Parties | Arbenz v. Wheeling & H. R. Co. |
Under the provisions of our statute (Code 1887, c. 54, s. 50,) a railroad company with the assent of the municipal authorities may construct and operate its railroad along a public street of a city in a cut or excavation below the common level of the remaining portion of the street in such manner as will appropriate a portion of the street to the exclusive use of the railroad company, provided such excavation does not occupy the entire street unnecessarily, or such considerable portion thereof, as to substantially prevent the use of the street by the general public, and provided, further that it does not unnecessarily impair the usefulness of the street as a highway for the general public.
The abutting lot-owners on the street so occupied by the railroad company, whether they own the fee in the ground covered by the street or not, will not be entitled to enjoin the railroad company from making such excavation and constructing its road along the street in acareful and proper manner, unless the injury therefrom to the lot-owner will be such as will entirely destroy the value of his property and therefore be equivalent to a virtual taking of it by the railroad company. In the case at bar it is held, that there will be no such destruction of the value of the plaintiff's property as will entitle him to an injunction to re_ strain the railroad company from constructing its road until the damages are ascertained and paid, or secured to be paid.
W. P. Hubbard for appellant.
H M. Russell for appellee.
Snyder, President:
The Wheeling & Harrisburg Railway Company, a corporation chartered under the general railroad law of this State, by an ordinance adopted by the council of the city of Wheeling on January 18, 1889, obtained the consent of said city to construct a branch railroad in and upon certain streets of said city. The ordinance among other things authorizes said company to use for the construction and operation of its road a portion of Twentieth street in the city. This street runs east and west near the foot of a high hill. It is constructively sixty feet wide, but owing to the character of the ground on which it is located only thirty feet or less on the north side of it has been graded and opened as a street, leaving a high and almost perpendicular bluff on the south side of this grade near the center of the projected street. On the north side of this street and abutting upon it are two lots of land owned by the plaintiff, John Arbenz, and upon each of these lots there is a brick building constructed and used for manufacturing purposes. These lots also abut on public alleys at their respective ends and on Eoff street, which runs between them at right angles to Twentieth street. The ordinance provides, that the railroad company may construct its road in a cut or excavation along the bluff in said street, and thus occupy a small portion of the graded part of the street in front of the plaintiff's property. The excavation to begin at nothing at the eastern end of said property and gradually increase in depth going westward, until at a point beyond the said property it will be of sufficient depth to admit of its being covered by a roadway, under which defendant's cars can pass. In front of the plaintiff's buildings the excavation will be an open cut in the street inclosed at the top by an iron railing, thereby separating the railroad track from the remaining graded portion of the street. The facts in the record show the present graded portion of Twentieth street along the front of this property is only about twenty four feet in width, and that after the railroad is constructed there will still remain open twenty two feet of this street between plaintiff's property and the said iron railing on the side of the railroad track; thereby making it appear that but two feet of the traveled and graded part of the street will be occupied by the excavation and railroad track. The heavy grade of the street at this point renders it impracticable to construct the railroad track on the surface grade of the street; and therefore, in order to construct the railroad along this street, the excavation is a necessity.
The said railway company having commenced the construction of its road along said street in the manner aforesaid, and under the authority of the aforesaid city ordinance, the plaintiff filed his bill in the Circuit Court of Ohio county alleging the aforesaid facts among others, and praying an injunction to restrain the defendant, the said railway company, from constructing its road along said Twentieth street in frout of his property in the manner authorized by the said ordinance, upon the ground that the ordinance was unauthorized by law and void. The court on March 2, 1889, awarded a preliminary iujunction. The defendant promptly answered the bill, and upon notice to the plaintiff the defendant moved the court to dissolve the injunction. This motion was fully heard, and on March 9, 1889, the court entered an order overruling it and refusing to dissolve the Injunction. The defendant thereupon moved the court to modify the injunction so as to permit the railroad company to proceed with the construction of its road upon giving bond with security to pay all damages and costs, which the plaintiff may sustain or incur by the construction of its road etc. This motion the court sustained, and the injunction was modified accordingly.
The plaintiff then moved the court for a rehearing of that part of the order modifying the injunction; which motion the court granted, and postponed the argument and the consideration thereof to a future day. Afterwards, on April 6, 1889, the court sustained said motion of the plaintiff and set aside that portion of its order of March 9, 1889, allowing the defendant upon giving bond to continue its work. From the said order of March 9, 1889, refusing to dissolve the injunction, and also from said order of April 6, 1889, setting aside the order authorizing the defendant to give bond and continue its work, the defendant has appealed to this Court.
No depositions were taken in the cause, and consequently the only facts before us are those contained in the exhibits filed, the admissions in the answer, and the allegations of the bill not denied or controverted by the answer.
The plaintiff alleged in his bill several grounds for relief, but one or more of them seem to have been abandoned, and those argued and insisted upon in this Court may be considered as resting upon a single proposition, viz., that the council of the city of Wheeling had no legislative authority to pass the said ordinance of January 18, 1889, giving to the defendant, in the manner before stated, the exclusive occupancy of a portion of Twentieth street. It is insisted First, that such occupancy without legislative authority would constitute a nuisance, and that such occupancy in the absence of legislative authority was not and could not be legalized by the city-ordinance; and, second, if it should be held, that the city had the right, as between the public and the city, to pass said ordinance, then this appropriation of a portion of the street to the exclusive use of the defendant would constitute an abandonment by the city of that portion of the street, and the same would revert to the plaintiff as the owner of the fee.
1. It may be conceded as a settled legal principle, that in the absence of legislative authority empowering it to do so a city or other municipal authority can not authorize by ordinance or otherwise a private person or corporation to appropriate a street or any part of it, so as to exclude the general public from its free and unobstructed use; and that this principle applies to railroads as well as to other corporations. The material question then to be now determined is, whether or not the city of Wheeling had legislative authority to grant to the defendant the use of the street in the manner it did by said ordinance of January 18, 1889.
The forty-fifth section of the act of March 11, 1836, incorporating the city of Wheeling, provides as follows: "The council shall have authority within said city to lay out and cause to be opened any streets, walks, alleys, * * * and to graduate any street, walk, alley, * * * which is or shall be established within said city * * * and generally to ordain and enforce such regulations respecting the same, or any of them, as shall be proper for the health, interest, or convenience of the inhabitants of said city." In addition to this power granted to the city of Wheeling by its charter the legislature, in section 50 of chapter 54 of the Code of this state, has granted certain general powers to the defendant and other railroad corporations, among which are the following:
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