Bd. Of Sup'rs Of Tazewell County v. Norfolk & W. Ry. Co

• Decision Date: 11 September 1916
• Citation: 91 S.E. 124
• Court: Virginia Supreme Court
• Parties: BOARD OF SUP'RS OF TAZEWELL COUNTY v. NORFOLK & W. RY. CO.

91 S.E. 124

(119 Va. 763)

BOARD OF SUP'RS OF TAZEWELL COUNTY

v.NORFOLK & W. RY. CO.

Supreme Court of Appeals of Virginia.

Sept. 11, 1916.

Rehearing Denied Nov. 23, 1916.

Appeal from Circuit Court, Tazewell County.

Suit in equity by the Board of Supervisors of Tazewell County against the Norfolk & Western Railway Company. From a decree dismissing the bill and from a decreerefusing leave to file a bill of review, the Board of Supervisors appeals. Reversed in part, and affirmed in part, and case remanded.

H. Claude Pobst, J. W. Harman, and J. N. Harman, all of Tazewell, for appellant.

Graham & Hawthorne, of Tazewell, for appellee.

SIMS, J. This is a suit in equity, on appeal from the circuit court of Tazewell county, involving change by the defendant in the court below, appellee here, the Norfolk & Western Railway Company (the change, in fact, being made by the Norfolk & Western Railroad Company, a former corporation, to the rights and duties of which the Railway company succeeded, and hence its liability is the same in this civil suit as if it had been the original actor in the case, and it may be treated as if it were such original actor) of the location of a public road between Doran and Raven, or of portions of it, and a crossing of such public road at Raven by such railway company, the bill alleging that the defendant failed to comply with its statutory duty and obligations in these matters and is guilty of maintaining a public nuisance, the prayer of the bill being that the defendant be compelled to comply with its duty and obligations or else restore to Tazewell county the old road, and that it be enjoined and restrained from further use and occupation of said public road, to thereby abate such nuisance, and for general relief.

The cause was heard upon the bill, exhibits therewith, the answer of the defendant, depositions in behalf of the plaintiffs and defendant, together with a number of photographs and several blueprints, and the court below, by its decree of September 9, 1915, dismissed the plaintiffs' bill.

On February 16, 1916, the plaintiffs moved the court below for leave to file a bill of review, setting forth and exhibiting with such bill what was claimed to be after-discovered evidence, consisting of certain orders of the county court of Tazewell county entered in 1857 and 1858, some of which, in effect, evidenced that the county authorities took charge of and undertook to keep in repair the said road from Doran to Raven, which the plaintiffs claim was a part of the second link of the Rlchlands and Kentucky turnpike, presently more particularly referred to. There were also filed with the bill of review certain other orders of the said county court entered during the years 1850, 1851, and 1852 in reference to certain persons appearing before said court and making suggestions and claims for damages done to their lands by the construction of the road connecting the Richlands and Kentucky line road with the Tazewell courthouse and Fancy Gap turnpike; some of such orders showing allowance of such damages by the court and certifying same for payment.

The court below, by its decree entered February 22, 1916, refused to permit such bill to be filed, and dismissed said motion of the board of supervisors to be allowed to file the same.

From these two decrees the appellants have appealed.

Upon the issues made in the cause and evidence in the court below arise the following points for the consideration of this court on appeal, namely:

(1) What was the width of the public road between Doran and Raven at the time the railway company made changes in its location?

(2) What was the authority given by statute to the railway company to make such change of location as it made of the road between Doran and Raven, and with respect to the crossing at Raven?

(3) Whether the railway company at the time of such change of location made an equally convenient road as the old road taken by it, including width of right of way, location, drainage, grade, etc.

(4) Whether the railway company complied with its statutory duty as to the crossing at Raven.

(5) Whether a verdict in favor of the same defendant in a prior criminal case of the commonwealth against it for unlawfully obstructing the same road estops the board of supervisors from prosecuting this suit.

(6) Whether lack of contractual relations and lapse of tune and laches bar the plaintiffs in this suit for specific performance.

We will consider these points in the order stated.

1. As to what was the width of the public road between Doran and Raven at the time the railway company made changes in its location.

The board of supervisors rely on act of March 8, 1847 (Acts 1846-47, p. 89); act of January 17, 1848 (Acts 1847-48, p. 178); act of March 7, 1849 (Acts 1S48-49, p. 96); act of March 2, 1853 (Acts 1852-53, p. 72), which, in effect, directed the construction and completion of the first link in a turnpike beginning at "the Richlands" and extending in a northwesterly direction to the Kentucky line; and on act of January 30, 1850 (Acts 1849-50, p. 63), and act of February 16. 1853 (Acts 1852-53, p. 77), which, in effect, directed the construction and completion of the second link in said turnpike beginning at "the Richlands" and extending in an easterly direction to Tazewell courthouse and there connecting with the Fancy Gap road.

The board of supervisors claim that "Raven" is the same place as "the Richlands, " and that the road from Doran to Raven, as located when the railway company made the changes of location of which complaint is made, was a part of the second link in the turnpike aforesaid mentioned in said act of assembly of Virginia, namely, was that partof it beginning at "the Richlands" and extending in an easterly direction towards Tazewell courthouse. The railway company denies this, claiming that the Richlands and Kentucky turnpike referred to in said act of March 8, 1847, was built and its terminus in "the Richlands" was located at the mouth or near the mouth of coal creek, and "ran from there northwestward across the dividing ridge, that is, the mountain which divides the waters of Clinch river, or Tennessee waters, from the Louisa Fork river, or the waters of the Ohio river; that the terminus of this road in Richlands lies west of the terminus of the road in controversy."

In the view this court takes of the effect of the acts above referred to, it is unnecessary to inquire which contention is correct. We are of opinion that the acts in question did not of themselves establish or locate the turnpikes or public roads contemplated thereby, nor did they fix the width of such roads. These acts directed these roads or links in the same road to be constructed as a state road. As the law then stood:

"It When any act shall pass, directing any work of internal improvement to be made on State account, the board of public works shall cause the same to be constructed * * * as may seem to them proper. * * *

"4. The board may exercise the same powers, and in like manner, that a company incorporated for a work of internal improvement may exercise under the fourth, fifth * * * sections of the fifty-sixth chapter. * * * "

Cede 1849, §§ 1 and 4, pp. 348, 349.

The act of March 8, 1847, provided that the road therein directed to be constructed "shall nowhere exceed a grade of four degrees, nor shall be more than twenty-two feet wide, nor less than twelve feet, exclusive of side ditches"; but the effect of this was not to fix or establish these widths, or any of them, as the width of the road, or right of way for the road, but merely controlled the wide discretion of the board of public works under sections 1 and 2, Code 1849, supra, when it came to take the land for the location of and to construct the road.

Preliminary to the work of construction, the right of way must be acquired. As the law then stood the following was the mode provided by statute by which the right of way was to be acquired, the road located, and its width fixed:

"Of the land to be taken for such work, the board shall cause a plat to be returned to the clerk's office of the court of each county wherein any of the * * * land lies, and there admitted to record, and the said land shall ipso facto be vested in the state." Code 1849, § 5, c. 70, p. 349.

There were provisions of law that after the plat was so recorded the landowners whose land was taken might, within a prescribed time, claim damages by petition to the county or circuit court.

It appears in this case that a search of the records of Tazewell county fails to show the existence at any time of any such plat admitted to record in such county covering the road in controversy, or any part of it; and there is no proof in this case of the loss or destruction of any such record so as to admit secondary proof of its one time existence, and there is no evidence tendered attempting to introduce such proof.

The court will not presume the existence of facts merely because records have been lost or destroyed. Such loss or destruction gives rise to no presumption, and has the effect merely of changing the mode of proof of such records, admitting secondary evidence in the place of an exemplification of the record. Gaines v. Merryman, 95 Va. 665, 29 S. E. 738.

We are clearly of opinion, therefore, that there is no evidence in this cause that any title was vested in the state, or that it acquired the right of way of any width to construct the road in controversy by any statutory proceedings.

Similarly as to the county of Tazewell. There existed at the time this road is claimed to have been established as a public road certain provisions of statute contained in chapter 52 of the Code of 1849 for the establishment of public roads by proceedings in the county court by which the right of way therefor could pe condemned. It is not claimed by the plaintiffs that any such proceedings were taken with respect to the road in controversy or any part of it.

It is...