City of Welch v. Norfolk & W. Ry. Co.
| Decision Date | 13 December 1927 |
| Docket Number | 5968. |
| Citation | 140 S.E. 839,104 W.Va. 660 |
| Parties | CITY OF WELCH v. NORFOLK & W. RY. CO. |
| Court | West Virginia Supreme Court |
Submitted September 14, 1927.
Syllabus by the Court.
Section 11, chapter 52, Code, requiring a railroad to go into equity to determine the necessity of a proposed crossing before exercising the right of eminent domain, does not apply to municipal corporations.
The authority conferred by charter to lay off and establish streets within its corporate limits, coupled with a general power to condemn, by necessary implication gives the city the right to cross the tracks of railroads at grade when it is necessary to do so for the purpose of connecting the ends of two streets, since the new use will not destroy the previous use, and both may be enjoyed together, without unreasonable impairment of either.
Where a new highway is laid out and opened across a railway track the railway company is entitled to compensation for the diminished value, if any, of its rights in the land on account of the establishment of the new way, and the cost of making and maintaining such structural changes in its roadbed and track as become necessary in order to protect and preserve its track for the old use, notwithstanding the new use, except, however, such changes as are required by law under the police power of the state, or the constitutional reservation of power to alter or amend corporate charters.
Legislative authority under the police power of the state extends to all matters necessary to a safe crossing of a railway track by a highway, without regard to whether exercised before or after the construction of the railroad, or before or after the construction of the highway, or whether the highway existed at the time of the construction of the railroad, or was thereafter constructed across it.
The requirement for the construction and maintenance of crossing gates and the hiring of watchmen are equally proper subjects for police regulations, when the Legislature shall see fit to exercise its authority in that regard.
Damages are not assessable for the interruption and inconvenience occasioned to the business of the railroad by the opening of a new highway across its tracks, nor for increased expenses nor increased risks in running its trains occasioned thereby. These matters are within the realm of police regulation, damages for which would be too vague and uncertain for calculation.
Uncompensated obedience to a regulation enacted for the public safety, or which may hereafter be enacted, under the police power of the state, is not a taking or damaging without just compensation of private property, or private property affected with a public interest.
Error to Circuit Court, McDowell County.
Condemnation proceeding by the City of Welch against the Norfolk & Western Railway Company and others, for an easement for street purposes across the railroad's tracks and right of way. From a finding of the viewers appointed to assess damages, both plaintiff and defendant appealed to the circuit court, which gave judgment for the Railway Company, based on a verdict for $1,000, and the Railway Company brings error. Affirmed.
F. M. Rivinus, of Philadelphia, Pa., Holt, Duncan & Holt, of Huntington, and Strother, Sale, Curd & Tucker, of Welch, for plaintiff in error.
B. F. Howard, of Welch, for defendant in error.
The Norfolk & Western Railway Company complains of the ruling of the circuit court of McDowell county in a certain condemnation proceeding, instituted by the city of Welch wherein the city obtained an easement for street purposes across the carrier's tracks and right of way.
In order to provide the residents of Woodmont addition with a safe, convenient, and adequate means of access to and from the schools, churches, and business section of the city, the officials of the city of Welch decided to construct a concrete bridge over Elkhorn river at a point directly opposite the foot of Slant street, considered the most direct and feasible route. Bonds were voted to finance this project, but the actual construction of the bridge has been held up, pending the outcome of the present condemnation proceedings. According to an actual census, 1,762 people reside in Woodmont addition. These people, in order to reach the city, must either cross over the Norfolk & Western tunnel by way of a narrow 9-foot road cut in a ledge of rocks on the mountain side, with an almost perpendicular drop of from 75 to 100 feet down to the railroad tracks bordering Elkhorn river, or by way of Slant street. It is shown in evidence that vehicles have for years been suffered to cross the tracks a short distance east of the proposed crossing, and that many school children, as well as other pedestrians, daily cross the tracks any place between such vehicular crossing and the proposed crossing.
To locate the crossing where it is sought to be located would provide the inhabitants of Woodmont addition with a direct outlet by way of the comtemplated cement bridge (the construction of which would be impracticable if the crossing is denied) into the paved road leading to the residential, business, and school sections of the city. The proposed crossing is to be at grade, the west limit at a point 280 feet east of the tunnel. At this point it will cross two main line freight tracks, which pass through the tunnel, one main passenger track, running around the tunnel to the passenger station, and two switch tracks. Divers citizens and officials of the municipality testify to the necessity for the establishment of the proposed crossing; that no change would be required in the present bed of the railway company; that the bridge was to be constructed so as to make access to and from the crossing safe.
The railway company seeks to show the absent of a necessity for such crossing; that its tracks are all in active use, and that on an average of 50 trains per day, passenger and freight, pass over these tracks, which are in constant and necessary use and occupancy by it; that the proposed crossing would be located so near to the eastern portal of the tunnel in question that, in consequence, such a grade crossing would be dangerous, both to the railway company and to the public. It further seeks to show that, after the establishment of the proposed crossing, it could not operate its railroad with any degree of safety, either to itself or to the public, without the expense of the installation and maintenance of gates, and the hiring of watchmen; nor could it avoid the expense of cutting its trains standing in and extending beyond the tunnel over the crossing without a violation of the criminal statutes of the state; that such expenses as were detailed by its witnesses were literally and unavoidably necessary to prevent further injury to the property of the defendant and render it fit for enjoyment, and such taking was tantamount to the taking of property without due process of law; and that the railway company had made a proposition of building an underground crossing on a fifty-fifty basis-that is, the railway company to pay one-half and the city one-half-and that the estimated cost thereof was $60,000.
The reviewers, appointed under the statute, to assess the damages for the lands or interest proposed to be taken, as well as damages to the residue, assessed the same at $15,000. Both the plaintiff and the defendant appealed to the circuit court from this finding, and on the trial thereof the jury returned a verdict of $1,000. From this latter hearing the railway company appeals to this court. The several assignments of error relate to the necessity for an initial application to a court of equity, and to the proper elements of damage.
Counsel for the railway company insist that an application to a court of equity for a decree determining the propriety of the crossing is a necessary condition precedent to the city's right to condemn a right of way, or crossing, over its property, which is already devoted to a public use. And in support of this they cite section 11, chapter 52, Code, and seek to show that it is a necessary supplement to chapter 42 relating to condemnation proceedings, and that it governs and regulates the rights of municipalities, just as it governs and regulates the rights and duties of the public corporations mentioned in chapter 52. While chapter 52 relates to corporations generally, section 11 thereof provides in effect that if any railroad, turnpike, or canal company, or any company organized for the purpose of transporting carbon, oil, or natural gas, deem it necessary to cross any other railroad, turnpike, or canal, or pipe line, it may do so, under certain conditions; that, if the parties fail to agree, the company desiring it may bring suit in equity, and in such suit the court may, in a proper case, decree that such may be made upon payment of damages to be ascertained as provided in chapter 42, Code, and the company may proceed under the latter named chapter to obtain the right to make such crossing. And then counsel go a step farther and contend that, since the city in this case is not given express authority by its charter to acquire property already devoted to a public use by condemnation proceedings, it must proceed in equity under said section 11, chapter 52, Code, if at all-that being the only express authority for such action. This issue was raised by a demurrer to the application, which was overruled, and also by the court's refusal of certain pleas setting up the same defense. Every contract made with the state is subject to its right of eminent domain. Such a taking does not impair the obligation of any contract, it being an implied condition of all grants by the state that the property conveyed...
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