Hark. v. Mountain Fork Lumber Co.., (No. 9571)

Citation127 W.Va. 586
Decision Date10 March 1945
Docket Number(No. 9571)
CourtSupreme Court of West Virginia
PartiesZundel Hark et al. v. Mountain Fork LumberCompany et al.

127 W.Va. 586

Zundel Hark et al.
Mountain Fork Lumber
Company et al.

(No. 9571)

Supreme Court of Appeals of West Virginia.

Submitted January 10, 1945.
Decided March 10, 1945.

[127 W.Va. 586]

1. Highways

The public acquires only an easement for a public road where the right is based on use by the general public and the expenditure of public funds in the upkeep of the road so used. In the absence of proof to the contrary, the width of such easement for secondary public roads was extended to thirty feet by Section 68, Chapter 66, Acts of the Legislature, 1917, and where the right to such easement became vested prior to repeal of that statute, the same was not divested by said repeal. The easement so established is located by measuring fifteen feet on either side of the center line of the travelled way. Code, 17-1-3.

2. Trespass

An encroachment by one person on the land of another is a trespass, although the damage may be negligible.

3. Highways

Public roads are established and controlled for public purposes.

4. Railroads

A public official may not assent to the occupancy of the roadbed of a public road by a private tramway.

5. Railroads

A steam tramway used solely for private purposes and private benefit constructed on a public road easement is an additional and illegal servitude upon the servient estate amounting to a trespass.

6. Nuisance

A suit to abate a public nuisance cannot be maintained by an individual in his private capacity, unless he suffers special injury.

[127 W.Va. 587]

7. Equity

Injunctive relief will not be denied on the theory of "balance of conveniences", where it appears there are no equities in favor of the litigant invoking that doctrine.

Appeal from Circuit Court, Wyoming County.

Suit by Zundel Hark and others against Mountain Fork Lumber Company and another to enjoin named defendant from operating a steam tramway on public highway and plaintiffs' land and to require removal of such tramway and for damages. From a decree dismissing their complaint, plaintiffs appeal.

Reversed and remanded with directions. Fox and Riley, Judges, dissenting.

Howell M. Tanner, Harold A. Ritz, Samuel Lopinsky and M. O. Litz, for appellants.

F. E. Shannon and Arthur S. Dayton, for appellees.

Lovins, President:

Zundel Hark, Esther Henry Hark, Zeline Henry, Ruth L. Heiner, and Sarah Lopinsky appeal from a decree of the Circuit Court of Wyoming County dismissing their bill of complaint against Mountain Fork Lumber Company, a corporation, and Silas H. Belcher. Hereinafter reference to "defendant" shall designate only the corporate defendant, since the pleadings disclose that Silas H. Belcher acted only as president and general manager of Mountain Fork Lumber Company, and we perceive no reason for making him a party defendant, even though he has made no objection thereto.

Plaintiffs own a tract of 8.64 acres, situate in Wyoming County on Pinnacle Creek, a tributary of Guyan River, about two miles from the confluence of these streams. Their land lies athwart the narrow valley of Pinnacle Creek, and extends upward on each of the hills which bound the same. Some three acres of the tract, divided by the creek, are bottom land and the residue is moun-

[127 W.Va. 588]

tainous. No part thereof is fenced, cultivated or occupied for any purpose. There is some merchantable timber on the land, and the minerals, if any, underlying are undeveloped. A secondary state road passes through and along the easterly line of the land for a distance of about four hundred forty feet, the travelled portion of which at no point exceeds fifteen feet in width. There has been no formal grant or dedication of this road to public use, but the bill of complaint alleges and the answer admits that the same has been used as a public way for thirty years or more, and that during such time public funds have been expended in its maintenance.

Defendant is engaged in cutting and manufacturing timber, a large percentage of which is devoted to industries directly supporting the present war effort. The economic advantages arising from its lumber operations are valuable to the immediate community.

Defendant owns a large tract of standing timber, estimated to contain one hundred million feet, the greater portion of which is located on the upper reaches of Pinnacle Creek upstream from plaintiffs' land. Defendant owns and operates a sawmill at the mouth of Pinnacle Creek, where there are railway facilities. Timber situate on the upper part of Pinnacle Creek must be transported down the creek to the sawmill and railway, and in so doing it is necessary either to cross plaintiffs' land or use the state road above mentioned.

Negotiations between plaintiffs and defendant for a right of way across plaintiffs' land for a tramway resulted in an impasse. Defendant offered to pay in advance seven hundred dollars, which represented a payment of one hundred dollars a year for seven years, the time deemed necessary to remove the timber. Plaintiffs demanded one hundred dollars a month during the time the right of way should be used by defendant. Failing to secure a right of way over plaintiffs' land, defendant, with the passive assent of the state road commissioner and more or less under the supervision of an employee of the state road commission, constructed a thirty-six inch gauge steel rail

[127 W.Va. 589]

tramroad, ostensibly in and on the public road through plaintiffs' land. Upon this tramway are operated two small steam engines, each of which furnishes the motive power for three logging cars, the trains so made up making between twelve to sixteen round-trips a day from the sawmill to the timber site. Prior to the construction of the tramway the center line of the travelled way was located by an engineer acting in behalf of plaintiffs. After the tramway was constructed and the public road widened, a location of said center line was made by an engineer under the direction of the state road commissioner. If the first location was properly made, the ties upon which the steel rails are placed encroach upon plaintiffs' land approximately one foot for a short distance, and when trains conveying logs pass over the tramway the overhanging logs increase such encroachment. On the contrary, if the location of the center line of the travelled way was correctly made by the state road commissioner, then there is no encroachment by the ties above mentioned. The engineer who located the said center line under direction of the state road commissioner refused to state whether there was such encroachment by loaded log trains.

Plaintiffs have importuned the state road commissioner to have the tramway removed, but he has failed to take such action, being advised upon investigation that no hazard or obstruction to the public road exists. His inaction appears also to be motivated in part by a desire to lend the commission's aid to the war effort.

Plaintiffs, in their bill which alleges that their land is worth twenty-five thousand dollars and that it has been damaged to the extent of ten thousand dollars by the construction and operation of the tramway, pray that the operation of the tramway be enjoined and that defendant be required to remove the tramway from the public highway and their land. They pray also for discovery of the amount of lumber, timber and merchandise transported over the tramway, for a decretal judgment in the amount of ten thousand dollars, and for general relief.

The suit was heard on the bill of complaint, answer,

[127 W.Va. 590]

demurrer to the answer, which was overruled, special and general replications to the answer, exhibits and testimony ore tenus. On final hearing the trial chancellor by decree denied the relief prayed for, and dismissed plaintiffs' bill.

Two controlling questions are here presented: (1) Do the acts of the defendant constitute trespass on plaintiffs' land; and (2) are plaintiffs entitled to injunctive relief under the facts disclosed in this record? Other incidental questions bearing on those above stated will be hereinafter discussed.

Preliminary to a consideration of the question of trespass on plaintiffs' land, it is necessary to determine whether the public owned a fee simple estate in or an easement over the land on which the public road is located. Where land for the construction of a public road is acquired by the exercise of eminent domain, a right of way only is vested in the public. Such is now the law of this State and has been since the adoption of the Code of 1868. Section 18, Chapter 42, Code, 1868; Code, 54-2-12. The acquisition of a fee by the exercise of the power of eminent domain for the construction of a public road is impliedly forbidden by statute, and hence a greater estate cannot be acquired by implied dedication. In this case the fee simple ownership remained in the predecessors in title of the plaintiffs, and so far as the record shows passed to plaintiffs. The rights of the public are, therefore, limited to an easement for a public road across the 8.64-acre tract of land.

By statute such easement is extended to cover a strip of land thirty feet in width. Section 68, Chapter 66, Acts of the Legislature, 1917, provided: "* * * All public roads which are now established in any of the counties of this state as public roads shall occupy a right-of-way not less than thirty feet wide, unless the county court shall have made a special order for a different width, *...

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