City Of Mounds Ville v. Ohio R. R. Co.
| Decision Date | 26 November 1892 |
| Citation | 37 W.Va. 92 |
| Court | West Virginia Supreme Court |
| Parties | City of Mounds ville v. Ohio R. R. Co. |
M unictpal Corporations Seal Bill i n Chancery.
A bill in equity in the name of an incorporated city, signed by counsel, need not have the city seal annexed, (p. 94, 95.)
Municipal. Corporations Streets and Highways Kailroad Companies-Mandamus N(usance Equity.
License from a city council to a railroad company to build its road across, along, or upon a public street gives it no power to destroy the street, and the company is bound to restore the street to its former state, or to such state as not unnecessarily to have impaired its usefulness for the public, and also to build proper crossings over the railroad, and keep them in good repair. If it MoUNDSVILLE 0. ohio R. R. Co. fail to do so, the company may be compelled to do so by mandamus; and as the company is guilty of maintaining a nuisance, equity may entertain a bill to abate such nuisance, and may compel the company to perform its duty. (p. 97.)
3. Municipal Corporations Jurisdiction.
Any powers the council of the city may have do not prevent the Courts from taking jurisdiction, (p. 106.)
V. B. Archer for appellant:
I. Court erred in overruling defendant's demurrer to original
and amended bills. 34 Wis. 450; 2 High Inj. § 1248; 7 Paige 261; 35 W. Va. 433.
II. Court erred in rendering final decree. 35 W. Va. 217;
1 Dill. Mun Corp. § 422; Code (1891) c. 54, s. 22; Acts (1866) c. 60; Code (1868) c. 47, s. 25; 1 Dill. Mun Corp. (4th Ed.)§ 310; Id. 304; 70 Mo. 603; 76 111.317; 18 W. Va. 186.
III. An injunction will not lie to enforce a municipal ordinance. 7 Paige 261; 17 Am. Rep. 446; 1 High Inj. (3rd. Ed.) | 788.
IV. A municipal corporation mast enforce its ordinances. (Jo arts of Equity can not supersede the Council of a City. 92 111. 170.
V. If an-injunction will be granted, it will be because the act
complained of is a nuisance per se. 2 High Inj. (3rd Ed.) § 1248 and n. 1; 23 W. Va. 406; 33 W. Va. 1; 35 W. Va. 57; Id. 481.
VI. A mandatory injunction is a preventive remedy only. 7 Am. and Eng. Ency. L. 789, s. 5 and notes.
VII. A mandatory injunction is granted only to execute the decree or order of the Court. 20 X. J. Eq. 379.
VIII. A mandatory injunction is never granted, in a doubtful case. 78 Am. Dec. 441.
IX. Plaintiff''$ rights must be established in a court of law. 40 X. Y. 207.
X. When act com/plained of has been acquiesced in, mandatory injunction will not be awarded. 2 Pom. Eq. Juris. § 1260.
XI. Alleged ordinance contains conditions not warranted by statute. Code (1891) c. 54, s. 50 sub. div. 6.
XII. Plaintiff has an adequate, ample and complete remedy at law. 35 W. Va. 59; Id. 458. J. A. Ewing for appellees:
I. Permanent obstructions in streets, endangering life and ob-
structing the use of the streets are nuisances which a court of equity can enjoin and abate. 73 Ind. 185; 94 Ind. 443; 55 Am. Rep. 273; 26 Am. Dee. 654; 46 How. Pr. 389; 100 Pa. St. 182; 38 Am. Rep. 117; 66 la. 257; 16 Pick. 175; 19 Pick. 147; 12 N. Y. 264; 62 Wis. 387; 17 III. 249; 7 Johns. Ch'y 322; 6 Munf. 306; 6 Paige 563; 6 Rand. 245; 13 W Va. 476; Id. 485; 6 Jons. Ch'y 46; 30 Am. Dec. 564; 1 Mich. 202; 32 Am. Dec. 413; Wood Xuis. (2d Ed.) § 787.
II. For the principles involved and the right to maintain this proceeding for like causes, see 23 Beav. 193; 3 Sumn. 189; Kerr Inj. 330; 25 Fed. Rep. 654; 50 111. 459; 13 W. Va. 476; 8 Sims 193; 40 X. V. 191; High Inj. 478; 34 Wis. 328; 49 111. 33.
III. Held proper remedy, if Railroad, Company were to build, or grade a highway. 2 W. R. 378; 1 Sawy. 470; 99 Mass. 285; 10 Am. & Eng. Ency. L. 789-791 and notes.
IV. Printed volume of ordinances of city admissible as evidence. Acts (1889) p. 16, s. 15; 35 W. Va. 217, 218.
V. Railroad. Company must comply with the conditions and restrictions in the ordinance granting to it use of the. streets. 1 Dill. 393; 27 Pa. St. 339; 18 X. Y. 347; 49 X. Y. 657; 9 Wall. 50; 9 Bosh 127.
VI. Track must not be so laid on highway as to permanently obstruct use of the same by the public. 11 Am. St. Rep. 395, 402; 23 X. H. 83; 2 Sher. and Redf. Xeg. (4th Ed.) § 359; 116 Ind. 446; 55 Am. Dec. 177.
The city of Moundsville tiled a bill in the Circuit Court of Marshall county against the Ohio River Railroad Company asking a mandatory injunction to said company to put a street in certain order and do certain work according to a municipal ordinance granting the company right to construct its road through the town (now city) of Moundsville; and, a decree having been made granting such relief, the railroad company has appealed.
The first point presented in argument as error is that the bill is not attested by the seal of the city. If we treat a municipal corporation as a private aggregate corporation, still we hold that a bill of an aggregate corporation need not have the seal annexed. The books of equity pleading, so far as I see, only require bills by such corporations to be drawn in the name of the corporation and signed by counsel, audi see no requirement of a seal. In Coal $ Iron Co. v. Detmold, I Md. Ch'y 371, it is pointedly decided that such a bill need not have the corporate seal; and that the fact, that it is the bill of the corporation, is sufficiently vouched for by the signature of counsel. 1 Daniell, Ch. Pr. 311, note 7.
No case is cited to support the point except Teter v. Bailroad Co., 35 W. Va. 433 (14 S. E. Rep. 146). That case holds correctly that the answer of a corporation must be signed by its president, with its seal affixed; but it does not follow that a bill must be so attested. The reason an answer must have the seal is that under the common chancery practice answers must be sworn to, and, as corporations can not be sworn, the seal must verify the act a reason not applying to bills.
Another point made against the decree is that a copy of the municipal ordinance, made an exhibit with the bill, is not filed, and the court overruled a motion by the defendant to compel the city to file it. The bill definitely alleges the passage of an ordinance by the town council giving the railroad company leave to build its road through the town, and that the company accepted it and built under it; and the bill goes on to allege specifically that the company failed to perform its duties under the ordinance in certain defined particulars, namely: that it constructed its track upon and along a certain street, and in so doing put a fill several feet high for a great distance along it, but neglected and refused to make the fill the full width of the street, as required by section 9 of the ordinance, leaving the street unfit for wagon transportation; and neglected and refused to construct the railroad track so that the tops of the rails should be as nearly level with the surface of the street as required by section 2 of the ordinance; and to fill up and ballast its track between the cross-ties so as to insure a smooth sur- MoUNDSVILLE v. ohio R. R. Co.
face, to the end that wagon transportation and travel should not be impeded, as required by section 9 of the ordinance; and to make sewers to drain off water from the street as required by section 2 of the ordinance; and to keep the street around and about its depot in good order and repair, so that access might be had thereto, and that the same was bad and out of repair, in violation of section 4 of said ordinance; and to restore the street to as good order and condition as it was in before the construction of the railroad, as required by section 7 of the ordinance.
With allegations in the bill of the adoption of the ordinance, and the points in which it was not performed, in greater detail than just stated, stating, in effect, what the particular sections provided, the company filed its answer, not simply admitting the passage of the ordinance, but saying that it had obtained the ordinance from the council, and had accepted it and built its road under it. Furthermore, a deposition exhibits a printed ordinance, and on the hearing it was present.
Perhaps this was, as it is said in argument to be, a part of the printed ordinances purporting to be issued under authority of council, and, if so, is evidence prima facie of the ordinance under section 15, c. 4, Acts 1890, relating to the city of Moundsville, though it is not in the bill or deposition stated to be such printed copy. Be this as it may, if an ordinance, such as the bill alleges, existed, it would be a basis of the relief asked, and its existence as pleaded was admitted. The counsel seems to call for a certified copy; but, if the ordinance exist as pleaded and admitted, where the necessity of its production? If essential to the defendant's case, it could produce the public document, There is not even a hint that the ordinance appearing in the case is not a true copy of the ordinance. We can not see that in any possible view the defendant has suffered any injustice from the nonproduction of a certified copy, and it would be very technical to sustain any exception on this score; in fact we do not think the point tenable.
Another contention for the appellant is that there is no equity shown by the bill as there is adequate remedy at common-law, and that equity will not enforce specific exe- cation of a municipal ordinance. While railroads are now more than ever of primary public importance, and must be accorded their just legal rights, the common highways of all the people are of at least equal importance, and have been favored and fostered, and the public interest in them defended and vindicated, in all ages of the common law, and in our days the courts everywhere manifest anxious solicitude in their preservation, preferring them seemingly over almost all other interests.
By the common-law, if a railroad or canal company cross or build its work upon a public highway, it must make and maintain a proper, convenient, and safe crossing, and restore...
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