Fowler v. Norfolk & W. Ry. Co.

• Court: West Virginia Supreme Court
• Writing for the Court: POFFENBARGER, J.
• Citation: Fowler v. Norfolk & W. Ry. Co., 69 S.E. 811, 68 W.Va. 274 (W. Va. 1910)
• Decision Date: 29 November 1910
• Parties: FOWLER et al. v. NORFOLK & W. RY. CO. et al.

69 S.E. 811

68 W.Va. 274

FOWLER et al. v. NORFOLK & W. RY. CO. et al.

Supreme Court of Appeals of West Virginia.

November 29, 1910

Submitted September 4, 1909.

Syllabus by the Court.

An action for damages for obstructing a highway cannot be maintained by a citizen, unless he shows injury to himself or his property, peculiar and special in the sense that it is different in nature or kind from that which results to the public generally from the obstruction.

A property owner has no right of action against a railway company for destruction of a street crossing in consequence of which his property suffers injury of the same nature or kind as that which results therefrom to all other property owners affected thereby, even though it be greater in degree.

A footbridge or passageway over a railroad, erected by the company owning the railroad at the instance of a city council, by way of partial restoration of a grade crossing which the railroad company has destroyed, is an improvement made by the railroad company, under a duty enjoined upon it by the sixth clause of section 50 of chapter 54 of the Code of 1906; and, for damages occasioned to the property of an abutting land owner by the erection and maintenance of such structure, the railroad company is liable.

Under such circumstances, there is no liability upon the city for injury to abutting land.

In such case, the injury is permanent in its nature, and permanent damages are recoverable.

In such case, it is immaterial that the owner of abutting land has no title to the fee in the street on which such structure is erected and maintained. The right of action is given by section 9 of article 3 of the Constitution of this state (Code 1906, p. 1), inhibiting the taking or damaging of private property for public use, without just compensation.

In an action for damages to property, occasioned by a public improvement, it is error to refuse to instruct the jury to set off, against the damages, the value of peculiar benefits inuring to the property from the construction of the improvement.

Error from Circuit Court, Mercer County.

Action by William E. Fowler and others against the Norfolk & Western Railway Company and others. From the judgment, both parties bring error. Reversed and remanded.

Brannon and Williams, JJ., dissenting in part.

Sanders & Crockett, for plaintiff Fowler and others. D. E. French for defendant City of Bluefield. A. W. Reynolds, for defendant Norfolk & W. Ry. Co.

POFFENBARGER J.

For injury to the property of William E. Fowler and others, a certain lot in the city of Bluefield, occasioned by the destruction of a public street crossing and the erection of an overhead bridge or passageway for pedestrians, across the tracks of the Norfolk & Western Railway Company, a judgment was rendered against said company for the sum of $5,000. The city of Bluefield, having the supervision and control of said street, was joined as a defendant in the action, upon the theory of liability to the plaintiffs for the injury aforesaid by reason of its having permitted or authorized the destruction of said crossing and the erection of said bridge or passageway, a portion of which extends along the front of the lot aforesaid. The jury found in favor of the plaintiffs against the Norfolk & Western Railway Company. On the issue joined between the plaintiffs and the city, there was a verdict for the latter, under an instruction by the court. The railway company having obtained a writ of error to the judgment, the plaintiffs also sued out one in which they complain of the verdict and judgment in favor of the city.

The Norfolk & Western Railway seems to have been built before the city of Bluefield was laid out. At the time of its construction, it crossed what is said to have been a county road at the point at which the crossing was destroyed and the bridge erected. As to whether there was a county road there and, if so, whether it had been abandoned or discontinued there is some controversy, but the evidence is probably sufficient to sustain a finding in favor of the plaintiffs on that question. The city of Bluefield, building and developing on both sides of the railroad, extended its limits beyond this point. South of the railroad there is a street known as Bluefield avenue. About two-thirds of the population of the city is found on that side and the residue on the northern side. Including the one in question, there were three public crossings for the accommodation of travel and transportation between the two sections of the city. The crossing in question is known as Allen street crossing. Said street runs northward from the railroad. As a means of making this crossing available for travel from the northern section to Bluefield avenue, a main thoroughfare in the southern section, the city purchased, from one Karr, a lot adjoining the railway right of way on the south and opened, through it, what is known as Thomas street, or the southern extension of Allen street. The theory of the railway company is that there never was a public crossing at this point, or, if there was, that it had been discontinued long before the opening of Thomas street. They say the city never did acquire any right of way across the railroad, though it did have a public street extending northward from the railway and another extending southward from it. On the other hand, the plaintiffs contend that there was an old public road across which the railway was built at this point and which was never discontinued, so that the city has a public highway over and upon the railway right of way, as well as beyond it in both directions. This crossing is on a sort of hillside, sloping from north to south. About two years before the building of the footbridge, the railway company, needing more tracks, widened its roadbed and cut back into the hill so as to completely destroy the grade crossing. It left an embankment on the north side about 20 feet high. This was done without any authority or permission from the city, disclosed by the evidence in the record. In response to a protest and remonstrance on the part of citizens, the city authorities concluded to require the railway company to construct an overhead footbridge, by way of partial relief from the public inconvenience. An order was made, requiring the railway company to construct such a bridge. Later, a representative of the railway company appeared before the council with a drawing or plan of the proposed bridge which was approved and accepted. This order was amended by the board of supervisors so as to require the railway company to hold the city harmless from all claims to damages to property owners, occasioned by the construction and maintenance of the bridge. This amendment was concurred in by the council. At a later meeting, the council rescinded the order of concurrence in the amendment, made by the supervisors, and unconditionally accepted the plan proposed by the railway company. An order was also passed by the council, authorizing the street committee to build a wall along the right of way of the railway company on the north side, to prevent the bank from caving in, and to place a substantial railing along the line of the street.

A claim of contractual liability on the part of the railway company is based upon the amendment to the order of the council, made by the board of supervisors and concurred in by the council, notwithstanding the repeal of that order of concurrence; the contention being that concurrence in the amendment put that provision into effect and bound the railway company to indemnify and save harmless the city from all claims for damages. It is also insisted that the city never discontinued this grade crossing nor authorized the destruction thereof. Liability on the part of the railway company is also asserted under the statute giving railway companies the right to cross or occupy public highways; on condition that they do not destroy or impair their efficiency as highways, or, in case they do render them impracticable as highways, that they build new roads for the use of the public in lieu thereof. Finally, it is insisted that if the occupation of this crossing and the destruction thereof was wholly unauthorized and wrongful, the omission to restore the highway to its former condition, or make it available for purposes of travel and transportation, amounts to a nuisance and imposes liability upon the railway company for injuries to adjacent property. Practically the same legal propositions are asserted in respect to the construction and maintenance of the footbridge.

The property of the plaintiffs consists of a lot adjacent to the railway right of way on the south, fronting 90 feet thereon and 90 feet on Thomas street, or the southern extension of Allen street. The footbridge is not built on this lot, but on Thomas street in front of it, and extends from the railway right of way south along the front of the lot for about 50 feet, descending in the form of a stairway to the ground at that point. At its southern end, this lot fronts about 62 feet on Bluefield avenue. The west front of the lot does not extend from the railway to Bluefield avenue. At the distance of 90 feet from the railway line, the boundary line turns east for a distance of 26 feet and then south to Bluefield avenue, and runs parallel to Thomas street. In the corner on the southwest, there is a lot, 26 feet by 93 feet, belonging to J. W. Ruff and others. The plaintiffs claim to have been injured by the destruction of means of access to their lot and also by the maintenance of the footbridge in front thereof.

As to the first element of damages claimed, the loss of the benefit of the street crossing, we are of the opinion that there can be no recovery. A...