Humphrey Mfg. Co. v. City Of Elkins.

• Decision Date: 30 January 1923
• Docket Number: No. 4673.,4673.
• Citation: 93 W.Va. 16
• Court: West Virginia Supreme Court
• Parties: Humphrey Manufacturing Co. v. City of Elkins et al.

93 W.Va. 16

Humphrey Manufacturing Co.

v.City of Elkins et al.

No. 4673.

Supreme Court of Appeals of West Virginia.

Submitted January 16, 1923.

Decided January 30, 1923.

1. Eminent Domain Not Enjoined from Constructing Paved Street on Ground Taking Property Without Compensation, Where Not Shown by Clear Preponderance to Encroach on Plaintiff's Land.

Where suit is instituted for the sole purpose of enjoining municipal or county authorities from constructing a paved street or road over lands belonging to plaintiff, thus taking plaintiff's land for public use without just compensation, and plaintiff fails to prove by a clear preponderance of the evidence that such street or road takes, or encroaches upon his land, the injunction should be dissolved and the bill dismissed. (P. 24).

2. Injunction No Attorney's fees Except Statutory Not Recoverable as Part of Costs or Damages by Prevailing Party, in Decree Dissolving Injunction, Reasonable Attorney's Fees Recoverable in Action on Injunction Bond After Dissolution and Dismissal.

In the decree dissolving an injunction and dismissing the bill, attorney's fees (except the statutory fee) cannot be recovered as a part of the costs or as damages to the party prevailing. Reasonable attorneys' fees in such cases are recoverable in a suit on the injunction bond. (p. 26).

(McGinnis, JUDGE, absent.

Appeal from Circuit Court, Randolph County.

Suit by the Humphrey Manufacturing Company against the City of Elkins and other to enjoin defendants from building and permanently improving an avenue within defendant city. From a decree dissolving the bill, plaintiff appeals.

Modified and affirmed.

W. B. & E. L. Maxwell, for appellant.

Spears & Irons, for appellees.

Lively, Judge:

The purpose of plaintiff's bill is to enjoin the county court and the municipal authorities of the city of Elkins from building and permanently improving what is known as Livingstone Avenue in the city of Elkins. The bill charges that the defendants, without notice to the plaintiff, are proceeding to take its land for public use without having paid just compensation therefor or without having secured such compensation to be paid, and without its consent and permission; and intend to use the same for public road purposes. The bill charges that plaintiff is the owner of a parcel of land in said city acquired by it from W. G. Wilson, by deed dated the 30th day of June, 1905, and which is correctly described as bounded on the north by land of Andrew Taylor, on the east by the county road, on the south by property lately purchased by the Kendig & Hall Cooperage and Manufacturing Company and on the west by W. Va. C. & P. Ry. Co., now the Western Maryland railway, on which lot plaintiff has established and is operating a large and commodious foundry and machine shop; that a controversy exists between the plaintiff and defendants as to the true location of the county road described as the eastern boundary of plaintiff's lot; and that defendants are beginning work improving the road by constructing a hard surface concrete pavement thereon, claiming to be working on the road as it was originally located; but that in truth and fact they are not making the improvement upon said road as originally located, but have departed therefrom and are constructing the road upon and over the land of the plaintiff. An injunction was awarded; defendants answered to the effect that they were constructing and improving the avenue upon the location of a county road which had been established at that point through the lands of Andrew Taylor who owned the tract through which the road was located and opened in the year 1893; that the land of the plaintiff was not being taken and that its title to the Wilson lot covered no part of the land where the road was being built.

It will be seen that the main controversy is over the proper location of the county road which is now being improved as Livingstone Avenue. Surveys and maps were made by engineers of the lines and distances of abutting property on the road in controversy, and in the near vicinity of plaintiff's lot, and the road was attempted to be surveyed and located by the original calls and by its actual location when established; and numerous depositions 'were taken in an attempt to locate the road as originally established. The lower court, after full hearing, dissolved the injunction and dismissed plaintiff's bill, and in the decree awarded $100 as and for attorney fees for the defendants and against the plaintiff. From this decree this appeal is prosecuted; and it is claimed that the lower court erred in dissolving the injunction and dismissing the bill without establishing the true location of the road in controversy; and that it was error to allow to the defendant an attorney's fee of $100 to be taxed as a part of the costs of the suit.

The tract of land through which the road was established in 1893 was owned by Andrew Taylor, and plaintiff deraigned its title from Taylor who in 1892 conveyed to Gabbert by metes and bounds a 2 1/ 2 acre tract bordering on the right of way of the railroad, in which he granted G-abbert a right of way from the lot conveyed to the public road; but at that time no public road had been established. Whether the grant of this right of way from the Gabbert land was to the road which was then contemplated, does not appear. As above stated, in the following year (1.893) the road in question was established by specific calls and distances through the Taylor land, and on the east side of the Gabbert tract, which was between the railway and the county road as then established. The Gabbert tract was divided into three or more parcels, the basic lines of which rest on the railway right of way. One of these parcels, one acre, was sold from a purchaser thereof by decree of court in the year 1904, and purchased by W. G. Wilson, and a deed made to him by Commissioner Scott. It is clear that this deed conveyed nothing outside the boundaries of the original Gabbert deed, and the side lines of the Wilson lot as conveyed extended from the railroad eastwardly a distance of 6 1/ 2 poles or 108 1/3 feet, which falls short by several feet of reaching the line of Livingstone Avenue, as now being constructed, and also several feet short of reaching the road as shown by the travel thereon. However, when Wilson deeded this acre tract to plaintiff in 1905 he did not confine his deed to the Gabbert lines, nor did he convey by lines and distances, but by boundary, describing it as bounded on the east by the county road, on the west by the railroad, and on the north and south by adjoining properties. It is thus contended by plaintiff that its title is not confined to the Gabbert boundaries but that its right under the Wilson deed extends from the railroad to the county road, or that the side lines of its lot running from the railroad to the location of the county road should be 115 3/ 4 feet on the northern line and 126 6/10 feet on the southern line. Plaintiff contends that having taken possession of the lot at the time of its purchase and immediately thereafter having constructed its foundry and machine shop thereon its title extends beyond the Gabbert boundaries (although the lot was not enclosed by fence), and that its possession and title extended to the county road. Under this contention this question immediately arises: "What is the true location of the county road?" Realizing the importance of the true location of the county road in order to maintain its suit for injunction, the plaintiff has attempted by its surveys and evidence to establish the true location in front of its lot as 126 6/10 feet from the southern corner and 115 3/ 4 feet from the northern corner. We do not think the evidence has clearly established the location of the road in front of plaintiff's property at the points contended for by it; indeed, we think the evidence does not convincingly establish the location of this road through the Taylor land at any particular place near plaintiff's lot except at the northwestern corner of the original Gabbert survey now known as the Gulland-Clarke lots, and possibly a distance of about 16 feet along the eastern portion of the Gabbert survey now known as the Adams Planing Mill lot, which lies a short distance and in a northeasterly direction from plaintiff's lot.

Omitting the calls from the Tygarts Valley river to the Taylor land, the report of the viewers shows the location of the road through the Taylor land as follows: "S. 76 E. 10 poles, N. 87 1/ 2 E. 3 poles, N. 33 E. 24 1/ 2 poles, N. 45 E. 98 poles." The 98-pole line is the one in controversy in this suit. The evidence shows that the original survey for the road began at Tygart's Valley River near where there is now a concrete bridge. The road from the river up to the S. 76 E. 10 poles line was not run by the surveyors, there having been many changes made in that part of the road since it was first surveyed and laid out. This line began at the Scott-Taylor line, where Surveyor Parsons took the center of the traveled roadway and ran the original calls with 1 24' variation, which he says is the proper variation from the date of the original calls. He did not hit the traveled road; the end of the 87 1/ 2 E. 3 poles line was on the eastern side of the traveled way in the field east of some apple trees; the 33 E. line was in a field near the road; he used an oldfashioned link chain; he had formerly run the county road down to about opposite the Humphrey Manufacturing Company shop, and in ascertaining the bearing of N. 45 W. it struck through a window of a house at that time, but the house has since been moved back; he had formerly located the road for the Leadsville Good Roads Advisory Committee, and at that time recommended the adoption of the traveled road, because he thought there was going to be a "rumpus kicked up"; he measured it as carelessly as he thought it might have been measured when it was first laid...