Chesapeake & O. Ry. Co. v. Deepwater Ry. Co.
| Citation | 50 S.E. 890,57 W.Va. 641 |
| Parties | CHESAPEAKE & O. RY. CO. v. DEEPWATER RY. CO. et al. |
| Decision Date | 25 April 1905 |
| Court | Supreme Court of West Virginia |
Submitted March 28, 1905.
Syllabus by the Court.
1. Land covered by a location for the purposes of its road, made by a railroad company, and acquired by it by purchase from the landowner, may be taken, under the power of eminent domain by another railroad company which has made an earlier location of its road on the same land, but the company owning the land by purchase may defeat the condemnation proceeding by showing that its location upon the same was first made.
2. As between rival railroad companies claiming the same location priority of location in point of time gives superiority of right to the use of the land, covered by the location, for railroad purposes.
3. Location of a railroad, within the legal definition of the terms, is a proceeding in the exercise of the power of eminent domain, amounting to an appropriation of the particular place selected for the site of the road, as against all persons except the owner of the land, and a person who may have perfected a prior location thereon; and as to the landowner, it gives a right to acquire his title by purchase, or the further exercise of the power of eminent domain, paramount to that of a company claiming under a subsequent location.
4. Neither the filing of a map and profile of the proposed road, nor the commencement of condemnation proceedings, is an essential step in making such location. Both may be deferred until after the location is perfected.
5. A mere survey made by the engineers of a company, not adopted or determined upon by the corporation itself, by an act of its board of directors, as the location of its road, is not an appropriation or location, giving priority of right as against third persons.
6. A survey staked out upon the ground, as a center line, a preliminary line, or an actual location, whether delineated on paper or not, if adopted by the corporation as aforesaid, is a sufficient location.
7. A location, as between rival companies, need not be exact as to the width of the right of way claimed or other matters of mere detail. If the site intended to be held is substantially shown, the location is sufficient.
8. A survey made by promoters of a railroad corporation, for its purposes, before the company is incorporated, or by an existing railroad company, for an extension of its road, before filing, in the office of the Secretary of State, a certificate of extension, as required by section 53 of chapter 54 of the Code of 1899, may be adopted as a location after incorporation or the filing of the certificate, as the case may be.
9. If, acting in good faith and diligently prosecuting the enterprise, it professes to have undertaken the construction of its road, a railroad corporation may seize and hold, as against a rival company, by location thereon, land on any part of its proposed route, without having made a survey of its entire road.
10. Though not the only mode of adopting a survey, so as to make it a location, the filing of a map of it in the office of the Secretary of State by order of the board of directors of the company is prima facie proof of such adoption.
11. The mere filing of such plat in such office, without proof that it was authorized by the corporation, is not evidence of an adoption of the survey shown by it.
12. A location can be made only by act of the corporation through its board of directors, but acts done by agents, under the orders of the board of directors, for the purpose of claiming and holding a location designated by the board as such, are evidence of intent on the part of the board of directors to claim and hold such location.
13. To aid in ascertaining the true meaning and purpose of a resolution passed by the board of directors of a corporation, the terms of which are not certain and definite, resort may be had to the circumstances under which it was passed, the situation of the company, the object of the resolution and the meeting at which it was passed, and the contemporaneous and subsequent conduct of the corporate authorities in respect to it, and parol evidence is admissible in applying descriptive terms used to the subject-matter.
14. A railroad company, having caused to be surveyed a portion of the route of a contemplated extension, the right to make which had not been obtained by compliance with the statutory regulations, and perceiving the intention of a rival company to seize part of the location so surveyed, hastily held a meeting of the stockholders, at which maps of the surveys, not as yet filed as required by law, were produced and examined, and which, after an examination of the maps, passed a resolution authorizing the extension, directing it "to be located on the most practical route as shown on the maps and profiles filed as required by law," and ordering certain persons "to make the necessary filings as required by law as fast as the same may be prepared." On the same day, and immediately afterwards, the directors held a meeting, and, with the said resolution of the stockholders and the maps before them, passed a resolution, authorizing and directing the chief engineer of the company "to carry out the surveys and extensions of same as authorized by the stockholders in their meeting of this date, and to do all things further that may be necessary for carrying out said resolution," and directing filings to be made "as fast as the same may be prepared." At the earliest possible moment after the adjournment of the meeting of the directors, and on the same day, the resolution of extension, and the maps as far as made, were filed in the office of the Secretary of State. Held, that the references in the resolutions to maps included those already made, and that the act of ordering them filed is prima facie proof of adoption of the surveys shown on them.
15. Books and records of a private corporation are not admissible evidence in its favor, in a controversy between it and a stranger respecting title to property or other right directly in issue between them, to prove that the acts therein recited were performed at the time and in the manner therein stated, except as memoranda in connection with the oral evidence of witnesses who testify from their personal knowledge as to such transactions.
16. After proof in such case, by competent evidence, that certain corporate acts were performed and written memorials thereof made in the form of resolutions or otherwise, the books and records of the corporation are admissible to identify and prove the character and terms of such instruments.
17. A claim of priority or location by one railroad company against another, set up in a condemnation proceeding, is the assertion of a right against a stranger to such corporation, and the records of the respective litigating corporations are not evidence in their favor, except to the extent and for the purposes above stated.
18. A railroad company is not entitled to compensation for improvements made by it on property upon which it has entered, pending its proceeding to condemn the same, upon the reversal of the final judgment in its favor, subsequently obtained in the action, and an adjudication against its right to condemn the land.
19. In such case, upon reversing the judgment and ascertaining that the action cannot be maintained, the appellate court will order restitution to the landowner of the possession of the premises, and remand the case, with leave to the plaintiff in error to sue out a writ of possession, and a direction to dismiss the action with costs, after the effectuation of such restitution.
20. Quaere: When one internal improvement company has been erroneously adjudged to have the right to condemn and take land belonging to another such company, may the plaintiff be stayed from taking possession thereof by an order of supersedeas or other process?
Error from Circuit Court, Raleigh County.
Action by the Chesapeake & Ohio Railway Company against John L. Trail and others. Judgment for plaintiff, and the Deepwater Railway Company brings error. Reversed.
Brannon, P., dissenting in part.
A. N. Campbell and Brown, Jackson & Knight, for plaintiff in error.
Simms & Enslow and W. P. Hubbard, for defendant in error.
Although in form, a proceeding by one railroad company to condemn, for its roadbed, a strip of land owned by another railroad company, which purchased said land for its roadbed, this case is in reality a controversy between said railroad companies over the question of priority of right to appropriate the strip of land in question, and calls for the settlement of principles governing the rights of rival companies contending for the same location for their respective roads.
The conflict is between a branch line of the Chesapeake & Ohio Railroad, called the "Piney Creek Extension," commencing at Prince Station on the main line, and on New river, and running for several miles up Piney creek and its branches, and thence across the divide to the waters of the Guyandotte river, and an extension of the Deepwater Railway, commencing at Glen Jean on Loup creek, another branch of the New river, and not far from Piney creek, and running across the divide to the waters of the Guyandotte river, and thence across the mountains to the Bluestone river. The point of conflict is a place called Jenny's Gap, on the ridge between the waters of New river tributaries and those of Guyandotte river branches. There is space for two locations through this gap, but the one in question is preferable to the other.
The main line of the Chesapeake & Ohio Railway Company from Richmond, Va., to the Ohio river, was completed in the year...
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