Cavender v. City of Charleston

• Citation: 59 S.E. 732,62 W.Va. 654
• Parties: CAVENDER v. CITY OF CHARLESTON.
• Decision Date: 19 November 1907
• Court: West Virginia Supreme Court

59 S.E. 732

62 W.Va. 654

CAVENDER v. CITY OF CHARLESTON.

Supreme Court of Appeals of West Virginia.

November 19, 1907

Submitted October 29, 1907.

Syllabus by the Court.

Where by the extension of the corporate limits of a city, a public bridge, owned and controlled by a county, comes to be within such city, it becomes the duty of the city to keep the bridge in repair.

[Ed Note.-For cases in point, see Cent. Dig. vol. 8, Bridges, § 52.]

A public bridge over a stream connecting streets of a city is a part of such streets.

[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§ 1595.]

The city of Charleston is under duty to repair that bridge over Elk river connecting Lovell and Charleston streets, called the "Suspension Bridge," and is liable for damage to persons and property arising from injury to the same caused by defect or want of repair of the bridge.

[Ed Note.-For cases in point, see Cent. Dig. vol. 8, Bridges, § 52.]

The Legislature has power to enlarge the corporate limits of a city or town and transfer the duty of maintenance and repair of a public bridge within such limits from the county to the town or city.

Power of Legislature over municipal corporations discussed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Bridges, § 52.]

Where a statute confers power upon a municipal corporation to be exercised for the public good, the exercise of the power is not merely discretionary, but imperative, and the words, "the council shall have power to," mean duty and obligation.

Error to Circuit Court, Kanawha County.

Action by Lillian S. Cavender, by her next friend, against the city of Charleston. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Watts, Davis & Mathews, for plaintiff in error.

A. S. Alexander, S. B. Avis, and W. E. Chilton, for defendant in error.

BRANNON J.

Lillian S. Cavender was crossing Elk river upon a wire suspension bridge, and, owing to a defective cable, the bridge fell, and she received bodily injury and brought an action for damages against the city of Charleston, and upon motion of the city, the court struck out the plaintiff's evidence as not warranting a verdict for the plaintiff, and the plaintiff has brought the case to this court.

It is not denied that the bridge was defective, nor is it denied that the plaintiff is entitled to have damages for her injury, but the question is whether the county of Kanawha is liable or the city of Charleston. The plaintiff contends that the city is liable. The defendant contends that it is not liable, but that the county is liable. We come first to sections 53 and 54 of chapter 43 of the Code of 1899 [Code 1906, §§ 1444, 1445], which contain the following provisions:

"Any person who sustains an injury to his person or property by reason of a public road, or bridge, in a county, or by reason of a public road, bridge, street, sidewalk or alley in an incorporated city, village or town, being out of repair, may recover all damages sustained by him by reason of such injury, in an action on the case in any court of competent jurisdiction, against the county court, city, village or town in which such road, bridge, street, sidewalk or alley may be, except that such city, village or town shall not be subject to such action, unless it is required by its charter to keep the road, bridge, street, sidewalk or alley therein, at the place where such injury is sustained, in repair. If it is not so required, the action and remedy shall be against the county court."

"Any person who may be injured as aforesaid by reason of a turnpike, road or bridge belonging to any company or person, or to any county in its corporate capacity, being out of repair, may recover all damages sustained by him by reason of such injury, in the manner prescribed in the preceding section, against such company, person or county, or against the lessee for the time being of any such road or bridge."

It seems that, under section 53, a city is only liable when by its charter the duty devolves upon it to keep a road, bridge, or street in repair. Then the material question here is: Did this duty rest upon the city of Charleston in respect to this bridge? The city of Charleston formerly bounded on the east side of Elk river and did not include Elk river. Years back an incorporated company, the Elk River Bridge Company, constructed this suspension bridge over Elk river. It owned land on both sides of the river on which were located the anchors supporting the cables of the bridge. Later that company sold and conveyed the bridge to the county of Kanawha. A street of Charleston, as it existed before the extension of its corporate limits, Lovell street, connected with this bridge, led to it. On the other side of the river the turnpike led to it; the bridge being thus a part of the turnpike connecting with Lovell street. The bridge was just as much a part of the turnpike as that part of the turnpike upon the soil. Later the town of Elk City was incorporated, and this turnpike approaching the bridge on the west side became a street of Elk City. Thus this bridge connected Lovell street in Charleston and Charleston street in Elk City. It was part of a continuous highway formed by those streets. Later the corporate limits of the city of Charleston were extended by an act passed in 1895 so as to include Elk river and the town of Elk City; the bridge being thus within the city of Charleston. It was so at the time Lillian S. Cavender received her injury. In 1895 by chapter 58, p. 126, Acts 1895, the charter of Charleston was amended.

It becomes then of importance, if not of decisive importance, to see whether this charter puts upon the city of Charleston the duty of maintaining this bridge in repair. Its twenty-first section (page 131) is of broad scope, giving the city many and ample powers to be exercised for the public benefit. It says: "The council shall have power *** to open new streets and extend, straighten, widen and repair old streets and alleys, to curb and pave streets, sidewalks and gutters for public use, and to alter, improve and light the same *** and shall have control of all avenues for public use in said city, to have the same kept in good order and free from obstructions on or over them; to regulate and determine the width of all streets, sidewalks and public alleys; to order and direct the curbing and paving of all sidewalks and footways for public use in the city, to be done and kept in good order by the owner or occupant of the adjacent property; to control the construction and repair of all houses, bridges and culverts." These provisions manifest intent to give wide and general powers over streets of the city. These and many other powers are vested by its charter act in the city of Charleston for public benefit, as appears from the very letter of the act and from the very nature of the powers given the city. For no other purpose than to subserve the public welfare are these powers conferred. The city has not the choice to exercise powers vital for the public weal, such as the maintenance of highways, or not as it chooses, but it must exercise such powers as in their nature are essential to the public welfare. Therefore we say that this act imposes upon the city the duty, the binding duty, to keep its streets in repair. The nature of the powers conferred by the act demands this duty of the city. Not only so, but the letter of the statute not merely gives the power, but it says, in commanding language, that the city "shall have control of all avenues for public use in said city." For what purpose? The statute says this control is given "to have the same kept in good order and free from obstruction." Now, this bridge within the corporate limits, essential to cross a large river, forming a part of connecting streets of the two cities as they once existed, and now practically made one street by the act enlarging the city, and connecting those streets and forming a continuous street-this bridge is surely, within the letter of the charter, an "avenue for public use in said city," which the city must keep in repair. This bridge is an avenue, a street connecting one part of the city with another, over a river. It is a part of the streets; for a bridge is just as much a part of a highway as that part of the highway passing over the earth. Elliott on Streets, § 27, says: "A public bridge is an essential part of a road, and the erection of a bridge is but the laying out of a highway." "The approach to the bridge and the bridge itself are both parts of the highway." 4 Am. & Eng. Ency. L. 920. City v. Drew, 19 Fla. 106, 45 Am.Rep. 5. Therefore we hold that this act itself, the charter of the city, does put upon the city the binding duty of maintaining the bridge in safe repair. "Whenever it is provided that a corporation or officer 'may' act in a certain way, or it 'shall be lawful' for them to act in a certain way, it may be insisted on as a duty for them to act so, if the matter, as here, is devolved on a public officer, and relates to the public or third persons." Mason v. Fearson, 9 How. 259, 13 L.Ed. 125; Ex parte Doyle, 62 W.Va. 280, 57 S.E. 824; Mayor & C. C. of Balto. v. Marriott, 9 Md. 160, 66 Am.Dec. 326. This bridge once belonged to the county before it was taken into the corporate limits, but the Legislature in 1895 gave control of it to the city, and thus deprived the county of control of it. After this act was passed, the county court by resolution renounced all control over the bridge and conceded control to the city. It is true that the city by its counsel disavowed liability for the bridge, disavowed control over it; but it could not do so. Its disavowal of responsibility for the bridge...