Dick v. City of Hinton

• Decision Date: 25 November 1930
• Docket Number: 6908.
• Citation: 156 S.E. 81,109 W.Va. 708
• Parties: DICK v. CITY OF HINTON et al.
• Court: West Virginia Supreme Court

156 S.E. 81

109 W.Va. 708

DICK v. CITY OF HINTON et al.

No. 6908.

Supreme Court of Appeals of West Virginia.

November 25, 1930

Submitted November 18, 1930.

Syllabus by the Court.

Owner of property abutting street, who suffered consequential damage from vacation of part of street, held limited to law action for compensation (Const. art. 3, § 9).

If the property of an abutter on a street suffers consequential damages from the vacation of a part of the street, he is ordinarily limited to an action at law for his compensation.

Appeal from Circuit Court, Summers County.

Suit by G. K. Dick against the City of Hinton and another. From an adverse decree defendants appeal.

Reversed injunction dissolved, and suit dismissed.

P. J Carr, R. F. Dunlap, and W. A. Brown, all of Hinton, for appellant City.

C. W Strickling and Fitzpatrick, Brown & Davis, all of Huntington for appellant Chesapeake & O. Ry. Co.

Martin & Martin, of Princeton, and Kyle D. Harper, of Beckley, for appellee.

HATCHER J.

Plaintiff brought this suit in June, 1929, for himself and for other property owners similarly situated, to enjoin defendants, city of Hinton (hereinafter called the city) and Chesapeake & Ohio Railroad Company (hereinafter called the C. & O.), from closing "the Avis crossing" (the grade crossing of Main street of the city over the C. & O. tracks). An issue out of chancery was directed and tried on the question of anticipated damages to plaintiff's property and business, if the crossing were closed. The jury returned a verdict of $2,000 in favor of the plaintiff. The trial court then entered a decree perpetually enjoining defendants from closing the crossing until the $2,000 was paid the plaintiff, or the city had passed an ordinance for the purpose of paying him. Defendants appealed.

The bill alleges the chartering of the city, the establishment of Main street, the construction of the C. & O. railroad, and the ownership by plaintiff of a lot on Main Street about 80 feet from the Avis crossing; that there is erected on his lot on the established location and grade of Main street a two-story building costing $5,000, the first floor being used as a storeroom, and the second floor being used for dwelling purposes; that his total investment, there, is $13,500; that his monthly sales average $1,800 and "his monthly income" approximates $400; that 75 per cent. of his customers live on the opposite side of the railroad from his store, and that in order to trade at his store they necessarily cross the tracks at the Avis crossing; that there is no other way of ingress and egress to his property except by Main street; that his lot and building are not suitable for any other purposes than their present use, and that if the crossing is closed, ingress and egress to his store will be cut off in one direction, his present business will be destroyed, and his investment will become a total loss; that on February 1, 1928, the city and the C. & O. entered into an agreement to build an overhead bridge at the Avis crossing (Exhibit No. 2 with the bill); that a bond issue election (the call therefor is Exhibit No. 3) was carried in the city on April 17, 1928, setting apart $75,000 to be expended on the bridge; that on April 27, 1928, the plaintiff and others filed with the mayor and the manager of the city and with the C. & O. written protests against closing the crossing, and that the plaintiff has at all times protested the same; that the bridge was built 335 feet north of the crossing, is practically completed, and will be open for travel in ten days, and that the city and the C. & O. are threatening and intending to close the crossing when the bridge is opened, according to the provisions of the agreement of February 1, 1928; that the city has contracted with the C. & O. in disregard of the interest of the plaintiff and the general public to sell to the C. & O. for $75,000 all of the public's interest and right to the crossing without compensating the plaintiff, or any one else similarly situated, for his injury, as would appear from Exhibits No. 2 and 3. The bill prays that the defendants, etc., be enjoined from carrying out "said contract" and restrained from closing the crossing.

Exhibit No. 2 recites that the city had submitted a plan of the State Road Commission for a bridge at the Avis crossing, which was estimated to cost $150,000, and the C. & O. had agreed to assume one-half of that cost not to exceed $75,000, subject to certain provisions, one of which was that the city would close the Avis crossing.

Exhibit No. 3 is an order made by the affirmative vote of the entire membership of the city council, a portion of which order follows: "That it appears to the Council of the City of Hinton, and the Council doth accordingly find, that it is necessary that improvements be made in the City of Hinton as follows: That a bridge and approaches thereto separating the grade crossing at Main Street over the Chesapeake & Ohio Railway Company's tracks, be constructed, erected, built, furnished and equipped in accordance with the plans and specifications of the State Road Commission, which bridge and its approaches will cost approximately $150,000.00, including property damage, and of which total cost the Chesapeake & Ohio Railway Company will pay one-half, or $75,000.00, by agreement, and the City of Hinton will pay the other on0e-half."

The learned trial court (in a written opinion) took the following view: "The taking of an easement which materially damages the dominant estate is the taking of property. *** The approaches to the plaintiff's lot on the public street were easements appurtenant thereto, and to deprive the plaintiff of one of the approaches to his property by closing and vacating Main Street and prohibiting traffic thereon, and materially injuring the same, is a taking of the plaintiff's property, in the eyes of the law." The easement referred to by the court is commonly termed the right of ingress and egress. This easement is the special and absolute right of an abutter on a street. 4 McQuillin, Municipal Corporations (2d Ed.) § 1425 (1321). It has been classified as property. 29 C.J., subject Highways, § 263; 2 Elliott, Roads and Streets (4th Ed.) § 1180; Dudding v. White, 82 W.Va. 542, 545, 96 S.E. 942; Fruth v. Board of Affairs, 75 W.Va. 456, 460, 461, 84 S.E. 105, L. R. A. 1915C, 981. And being private property, it cannot be taken from the abutter or damaged, under the Constitution, "without just compensation." See, generally, McQuillin, supra, § 1426; 13 R. C. L., subject Highways, § 125; Elliott, supra, § 891. (The foregoing statement is meant to be abstract and not to adjudicate that plaintiff is entitled to damages.)

The plaintiff's theory is different in terms from that of the circuit court. As gathered from his brief, it is that he would suffer special and peculiar injuries from the closing of the crossing, not common to the public at large; that such injuries would amount to a taking of his property; and that he is therefore entitled to have the closing of the crossing enjoined until his damages shall have been paid or secured to be paid.

Both theories are essentially defective in premising that the plaintiff's property is taken. Right of access to property, in an abstract sense, is integral and is not composed of directional divisions. That right may be substantially impaired; but it is not taken away until ingress and egress are completely barred. The obstruction of access in one direction may be a damage to an abutter on the highway; but unless his access is obstructed in both...