County Court of Wayne County v. Louisa & Fort Gay Bridge Co.

• Decision Date: 22 August 1942
• Docket Number: No. 197.,197.
• Citation: 46 F. Supp. 1
• Court: U.S. District Court — Southern District of West Virginia
• Parties: COUNTY COURT OF WAYNE COUNTY, W. VA., v. LOUISA & FORT GAY BRIDGE CO., Inc.

46 F. Supp. 1

COUNTY COURT OF WAYNE COUNTY, W. VA., v. LOUISA & FORT GAY BRIDGE CO., Inc.

No. 197.

District Court, S. D. West Virginia.

August 22, 1942.

J. T. Lambert, Pros. Atty., and J. Floyd Harrison, Asst. Pros. Atty., and M. J. Ferguson, all of Wayne, W. Va., for plaintiff.

S. S. Willis, of Ashland, Ky., and Samuel Biern, of Huntington, W. Va., for defendant.

HARRY E. WATKINS, District Judge.

The pertinent question for consideration in this case is whether the State of West Virginia may condemn a toll bridge for public purposes, located partly in West Virginia and partly in Kentucky, in the absence of any permission or agreement with the State of Kentucky or the owner of such bridge, and in the absence of any special authorization of Congress. The question arises upon a motion to dismiss plaintiff's petition for condemnation, made by defendant, Louisa & Fort Gay Bridge Company, Incorporated, a Kentucky corporation, the owner of such bridge, after defendant had removed the case from the Circuit Court of Wayne County, West Virginia by reason of diversity of citizenship.

The toll bridge extends from Fort Gay, in Wayne County, West Virginia, across the Tug Fork of Big Sandy River to a point of land in Kentucky, and thence across the Louisa Fork of Big Sandy River to Madison Street, in Louisa, Kentucky. The length of the bridge is about 1,120 feet, of which less than 200 feet is in West Virginia. The boundary line between Kentucky and West Virginia is the middle of Tug Fork of Big Sandy River.

Plaintiff claims that it is authorized by the State of West Virginia to condemn the whole of this bridge by virtue of Chapter 27 of the Acts of West Virginia, Second Extraordinary Session, 1933, W.Va.Code, Ch. 17, Art. 17, §§ 30-32. It claims that under the doctrine of comity between the several states, that it may exercise the right of eminent domain upon property located in Kentucky, provided no law of Kentucky forbids such condemnation, and provided it is ready and willing to pay to the owners of that private bridge the just compensation for the property taken. I see no merit in either of these contentions.

The power of eminent domain is an attribute of sovereignty. Within its own jurisdiction each state possesses such sovereign power. But no state can take or authorize the taking of property located in another state. Each state holds all the property within its territorial limits free from the eminent domain of all other states. To argue that the people of West Virginia have any inherent right to take property located in Kentucky from a citizen of that state, is to assert that the sovereignty of West Virginia extends to some extent over the soil of Kentucky. "To state the proposition is to refute it." McCarter v. Hudson County Water Co., 70 N.J.Eq. 695, 65 A. 489, 498, 14 L.R.A.,N.S., 207, 118 Am.St. Rep. 754, 10 Ann.Cas. 116; 18 Am.Jur. 645; 29 C.J.S., Eminent Domain, § 19, p. 805; Grover Irrigation & Land Co. v. Lovella Ditch, etc., Co., 21 Wyo. 204, 131 P. 43, L.R.A.1916C, 1275, Ann.Cas.1915D, 1207. A state cannot own or acquire property in another state without its consent. Dodge v. Briggs, C.C., 27 F. 160; State of Georgia v. City of Chattanooga, 264 U.S. 472, 44 S.Ct. 369, 68 L.Ed. 796; Klein v. City of Louisville, 224 Ky. 624; 6 S. W.2d 1104, 1108. Adjoining states may agree as to the construction of bridges over navigable streams forming a boundary between them, or may refuse such consent. Covington & Cincinnati Bridge Co. v. Kentucky, 154 U.S. 204, 14 S.Ct. 1087, 38 L.Ed. 962.

The United States, being a sovereign, also enjoys the right of eminent domain. Under the commerce clause of the Federal Constitution, Article 1, § 8, the United States might condemn the bridge in question, or may delegate such right to West Virginia and Kentucky, or to either of them. For example, the Congress by an act approved July 17, 1942, has authorized the states of Minnesota and Wisconsin, jointly or separately, to condemn bridges now crossing the St. Croix River, at or near Hudson, Wisconsin, with the proviso that such bridges shall thereafter be maintained by such state or states free of tolls in accordance with the provisions of the act approved March 23, 1906, regulating bridges over navigable waters. No such authority has been given by Congress for the condemnation of the Louisa and Fort Gay bridge, and neither the State of Kentucky nor the owner of the bridge has consented thereto. Comity between these adjoining states cannot supply that high and drastic power of condemnation. Comity is a courtesy which one state extends to another by enforcing the laws of such other state when it is proper to do so, and such law is not contrary to the public policy of the state. Comity will not be exercised, when to do so, the state would be violating its own laws, or inflicting injuries on some one or more of its citizens.

Has the West Virginia Legislature attempted to give plaintiff the right to condemn such part of this bridge as is located in Kentucky? A careful reading of the statute convinces me that it has not attempted to do so, and that the statute is not inconsistent with the principles stated above. The title or preamble of the act (West...