City of Moundsville v. Ohio River R. Co.

• Decision Date: 26 November 1892
• Parties: CITY OF MOUNDSVILLE v. OHIO R. R. CO.
• Court: West Virginia Supreme Court

16 S.E. 514

37 W.Va. 92

CITY OF MOUNDSVILLE v. OHIO R. R. CO.

Supreme Court of Appeals of West Virginia.

November 26, 1892

Submitted June 2, 1892.

Syllabus by the Court.

1. A bill in equity in the name of an incorporated city, signed by counsel, need not have the city seal annexed.

2. 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 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.

3. Any powers the council of the city may have do not prevent the courts from taking jurisdiction.

4. Mandatory injunctions.

Appeal from circuit court, Marshall county.

Bill by the city of Moundsville against the Ohio River Railroad Company for a mandatory injunction to defendant to repair a street. There was a decree granting the injunction, and defendant appeals. Affirmed.

V. B Archer, for appellant.

J. Alex, Ewing, for appellee.

BRANNON J.

The city of Moundsville filed 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 and I see no requirement of a seal. In Coal & Iron Co. v. Detmold, 1 Md. Ch. 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. Railroad Co., 35 W.Va. 433, 14 S.E. 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 cannot 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 surface, 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 cannot 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 execution 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 high ways 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 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 the highway to as good condition for public use as the condition in which it was before such interference with it, though such company be acting under leave from the proper authority; and such leave to cross or impinge on the highway is not to be construed to give liberty to destroy the highway, unless the legislature has so plainly enacted. This must be so from the very necessity and justice of the case, and from the fact that the license to invade the highway is granted at the instance and for the private benefit of the company or person, and he who enjoys the convenience or benefit must bear the burden. Qui sentit commodum sentire debet et onus. State v. St. Paul, M. & M. Ry. Co., 35 Minn. 131, 28 N.W. 3; Palatka & I. R. Co. v. State, 23 Fla. 546, 3 So. Rep. 158; Northern Cent. R. Co. v. Mayor, etc., 46 Md. 425; People v. Chicago, etc., 67 Ill. 118; Regina v. Inhabitants, etc., 69 E. C. L. 843; 2 Wood, Ry. Law, 975; 2 Shear. & R. Neg. § 415; Elliott, Roads & S. 599. When I speak of the duty of restoration of the highway to its former condition, I do not mean it literally, for sometimes that would be impossible, and inconsistent with the joint use of the same ground by highway and railroad; but, though "restoration," as here used, may not mean "restoration to the same surface or elevation," yet it does mean that the highway must be brought back to its former usefulness, and rendered as passable as before, so as not unnecessarily to impair its usefulness for ordinary travel. Such is the meaning and language of our statute. Acts 1872-73, p. 224; Code 1891, p. 530; 1 Ror. R. R. 388. Our act requires the high way to be restored to its former state, "or such state as not to have unnecessarily impaired its usefulness;" and the presence of the latter clause, and the word "unnecessarily," found in it, induce me to conclude, with the New York court in People v. Dutchess & C. R. Co., 58 N.Y. 165, discussing a statute having the same words, that it implies that the usefulness of the highway may have been somewhat impaired, either in construction or maintenance of the railroad, but that it is quite certain that it does not mean that the highway shall be rendered useless, but that it does mean that it shall be preserved for public travel, and to permit at the same time the laying of the track upon it. The usefulness of the highway may be partially impaired, but the highway must be put in such condition as to be conveniently and safely passable. The duty thus imposed is an important one for the public, and it should be enforced, not arbitrarily or oppressively, but fairly and reasonably, to subserve and protect the public interest and right. The common law imposed such duty as stated above,...