Hardman v. Cabot

• Citation: 55 S.E. 756,60 W.Va. 664
• Parties: HARDMAN v. CABOT.
• Decision Date: 27 November 1906
• Court: Supreme Court of West Virginia

55 S.E. 756

60 W.Va. 664

HARDMAN v. CABOT.

Supreme Court of Appeals of West Virginia.

November 27, 1906

Submitted June 13, 1906.

Syllabus by the Court.

A pipe line, laid in a public rural highway, under proper authority and used for supplying the public with natural gas for heating and illuminating purposes, though imposing an additional public service upon the road, is not a use in excess of the right of the public in such road, and does not impose an additional burden upon the estate in fee in the land.

In respect to the rights of the public in highways, held under valid dedications and acceptances, and the power of the Legislature over the same, there is no distinction in this state between the streets of incorporated cities and towns and country roads.

Certain rights of use in public highways, owing to their peculiar nature, are dependent upon the will of the authorities having control of the streets and roads, and can be exercised only with their consent and under such restrictions as they, in the exercise of their discretion, may see fit to impose. Among these the right to convey natural gas, for public use along a highway by means of pipes, laid under the surface, is included.

Permission to so use a public road may be granted, by a county court, to a natural person.

In a suit to enjoin the use of a public road, under permission therefor, granted by a county court, for the purpose of conveying natural gas along the same by means of pipes laid under the surface thereof, for public consumption, as a means of producing heat and light, on the ground that the pipes are not maintained, and the gas conveyed by means of them, for such purpose, the plaintiff must allege and prove the fact wherefore the defendant may introduce evidence to prove that the pipes are so maintained and the gas so conveyed, in resistance of the effect of the plaintiff's evidence under his denial of the allegation of the bill.

In assailing a prima facie right or title, by a bill in equity, the plaintiff must aver and prove facts sufficient to overcome it. Ordinarily, he cannot otherwise put the defendant to the proof of a perfect, indefeasible title or right.

Appeal from Circuit Court, Calhoun County.

Bill by Marcellus Hardman against Godfrey L. Cabot. Decree for defendant, and plaintiff appeals. Affirmed.

Mathews & Bell and Walter Pendleton, for appellant.

Van Winkle & Ambler, for appellee.

POFFENBARGER J.

Marcellus Hardman feels aggrieved by the action of the judge of the circuit court of Calhoun county, in dissolving, in vacation, an injunction, which he had obtained, inhibiting and restraining Godfrey L. Cabot from locating, maintaining, and operating a gas pipe line in a public road, running through the lands of said Hardman, under permission for occupation thereof, granted by the county court of said county, which pipe line was required, by said order of permission, to be placed under the surface of the road at least two feet.

Certain conclusions to which we have come, and which seem to be accordant with those of the trial court, render it unnecessary to discuss a number of questions, concerning which elaborate arguments are found in the briefs. This will be apparent to counsel from the following statement of principles and conclusions: Assuming for the present that the use to which the road is subjected, in the exercise of the privilege so granted, is within the purpose for which the road was dedicated to the public, and accepted by its authorities, and does not constitute an additional servitude upon the land, the title to which is in the plaintiff, subject to a right of use in the public for highway purposes, the important question arises whether such permission can be granted by a county court to a private individual, for the purpose of enabling him, by means thereof, to subserve the public interest, by supplying the inhabitants of the community with natural gas for the purposes of heat and illumination. Express authority for granting such permits to incorporated companies, organized for the purpose of transporting petroleum oil and natural gas, is conferred upon county courts by section 24 of chapter 52 of the Code 1899 [Code 1906, § 2229]. It is earnestly insisted by counsel for the appellee that the authority conferred by that section is broad enough to enable such tribunal to grant like permits or privileges to private individuals, and Lowther v. Bridgeman, 57 W.Va. 306, 50 S.E. 410, is cited as authority for the proposition. But it was carefully noted in that case that the act of the Legislature authorizing the occupation of public roads by telephone companies, with the consent of county courts, was not amendatory of any chapter of the Code relating to corporations, wherefore this court was able to place a liberal construction upon the word "companies," used in the act. It may well be doubted whether chapter 113, p. 337, of the acts of 1891, adding a new section to chapter 52 of the Code of 1899 [Code 1906, § § 2207-2229], relating to corporations generally, falls within the line of that process of reasoning. But this is not conclusive. While we may not be able to say the word "companies," as used in section 24, c. 52, Code 1899 [Code 1906, § 936], includes copartnerships or individuals, the spirit of that and other statutes may sustain the action of the county court.

It is far less important for us to know, and for the Legislature to declare, what persons may make a certain use of a highway, than what may be lawfully done in it. All persons, both natural and artificial, are entitled to use public highways, and have equal rights in respect to them; but there is a limitation upon all as to the manner in which they may use them. Some of the uses, that courts have deemed to be within the grant of the land for highway purposes, are such in character as cannot be exercised, with safety to the public, or without working prejudice to persons using the way in the ordinary modes, in the absence of regulation. To the end that proper rules and regulations may be established in every such case, persons desiring to exercise such powers must obtain permission to do so, and the permission is granted upon terms and conditions intended to prevent the use permitted from rendering the highway unsafe to other persons or producing an unreasonable restraint upon their privileges. To this class belong railways, telegraph and telephone lines, sewers, and water and gas pipes. The Legislature, in expressly authorizing the use of highways, under permission of the county courts, by corporations engaged in the service of the public, for the location and operation of their gas pipes, has declared that such use is proper. Who may have it is a matter of no consequence, in so far as it affects the road, but of immense importance as regards the public. We are not to impute to the Legislature an intention to allow corporations greater rights in public highways than natural persons. That private persons may engage in public service, such as is usually carried on by corporations, has been declared by this court. Lowther v. Bridgeman, 57 W.Va. 306, 50 S.E. 410; Gas Co. v. Lowe & Butler, 52 W.Va. 662, 44 S.E. 410; Watson v. Railway Co., 49 W.Va. 528, 39 S.E. 193. The Legislature has expressly so declared also in section 1, c. 44, p. 100, of the Acts of 1891, as to the transportation of petroleum oil.

That railroads, whether operated by steam or other motive power and telegraph and telephone lines, do not impose additional servitudes, when located in highways, be they city streets or country roads, is abundantly settled by the decisions of this court. Watson v. Railway Co., 49 W.Va. 528, 39 S.E. 193; Lowther v. Bridgeman, 57 W.Va. 306, 50 S.E. 410; Arbenz v. Railroad Co., 33 W.Va. 1, 10 S.E. 14, 5 L. R. A. 371; Spencer v. Railroad Co., 23 W.Va. 406; McEldowney v. Lowther, 49 W.Va. 348, 38 S.E. 644. To hold the contrary, as regards pipe lines for conveying gas, water and other supplies, would be most disastrous to cities, towns, and counties of this state, in which hundreds, possibly thousands, of miles of such pipes have been laid in the highways, without any thought on the part of the fee owner of any right in him to prevent it, until payment of compensation should be made. In the states of Indiana, Pennsylvania, and some others, such use of a highway is regarded and treated as subjecting the land to an additional servitude, but there is a great deal of high authority to the contrary, besides a lack of forcefulness in the reasoning upon which the decisions, declaring the doctrine, are based. In Bishop v. North Adams Fire District, 167 Mass. 364, 45 N.E. 925, the court held that the public authorities might lay water pipes in a public highway without the payment of any compensation to an abutting landowner, although the highway, of which he owned the fee, was thereby subjected to an additional public use. This decision was based upon the doctrine announced in Attorney General v. Metropolitan Railroad, 125 Mass. 515, 28 Am. Rep. 264, and Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7. In the latter of these two cases, which involved the right to compensation for a supposed additional servitude, resulting from the location of a telegraph line in a public highway, the court said, at page 81 of 136 Mass. (49 Am. Rep. 7): "When the land was taken for a highway, that which was taken was not merely the privilege of traveling over it in the then-known vehicles, or of using it in the then-known method, for either the conveyance of property or transmission of intelligence. Although the horse railroad was deemed a new...