Jackson v. Sandy

• Decision Date: 26 November 1907
• Citation: 63 W.Va. 18
• Court: West Virginia Supreme Court
• Parties: Jackson v. Big Sandy &c. R. R. Co.

63 W.Va. 18

Jackson

v.Big Sandy &c. R. R. Co.

Supreme Court of Appeals of West Virginia.

Submitted June 13, 1907.

Decided November 26, 1907.

Railroads Grants of Rigid* of Way EMerit and Use of Rights Acquired Right of Way Annexed to Mining Rights.

Railroad rights of way, annexed and subsidiary to mining rights, cannot be used for other purposes, such as the business of carrying passengers and freight generally, (p. 20.)

2. Injunction Subjects of Protection and Relief Railroad on Mining Right of Way Operation as Common Carriers.

Equity has jurisdiction, independently of the constitutional inhibition of the taking of private property for public use, without payment of compensation or security therefor, to enjoin the operation of a railroad, built on a mining right of way, as a common carrier, no possessory remedy at law being available for ejection from the premises, (p. 22.)

3. Eminent Domain Remedies of Owners of Property Jurisdiction of Equity Restraining Unauthorized Use of Railroad Rights of Way Granted.

The constitutional inhibition of taking private property for public use, without compensation, gives equity jurisdiction to prevent such unauthorized use of a mining right of way or railroad, since the law affords no adequate remedy for the possession and use of the property, deprivation of which amounts in law to a taking thereof. IP-23.)

4. Equity Pleading Answer Abatement for Want of Parties.

An answer to a bill, seeking abatement for want of necessary parties, which fails to aver facts, showing an interest, on the part of the absent party, in the subject matter of the bill, that will be affected by the achievement of the object of the suit, is insufficient for the purpose, (p. 24.)

Appeal from Circuit Court, Wayne County.

Bill by Virginia Jackson against the Big Sandy, East Lynn & Guyan Railroad Company. Decree for plaintiff, and defendant appeals.

Affirmed.

Holt & Duncan, for appellant.

William Fry and Campbell, Heffley & Davis, for appellee.

POFFENBARGER, JUDGE:

The questions presented here are whether a railroad built on a right of way granted only for a railroad for the transportation of minerals of the grantee, to be taken from the land over which the right of way is, can be operated as a common carrier, and, if not, whether equity will enjoin such use thereof.

The plaintiff, owner of a small tract of land, containing about three acres, which came to her out of a tract of 62 7-8 acres, once owned by Samuel Osburn, and another tract, the two having an aggregate area of 62 1-2 acres, obtained from the judge of the circuit court of Wayne county, on the 6th day of May, 1903, an injunction, restraining and inhibiting the Big Sandy, East Lynn and Guyan Railroad Company from proceeding further to enter upon said tracts, on a bill alleging that said company, without having in any way acquired a right of way over the same, and without her consent and over her protest, had entered upon and taken possession of a portion of her land and was then, and had been, for some time, engaged in building and constructing its railroad thereon.

On February 21, 1905, the defendant filed an answer, denying that it had built, was building, or intended to build, any railroad on any portion of any of plaintiff's land, and also that any railroad had been built on the larger of the two tracts; but averring that a railroad had been built by the East Lynn Coal Company over said three acre tract, on a right of way, granted by said Samuel Osburn to C. Fry and B. J. Pritchard, by deed dated the 8th day of May, 1890, by which Osburn had conveyed to said Fry and Pritchard all metals, coals, iron ores, fireclay, stone for building purposes, gas and oil, in, under and upon said 62 7-8 acre tract of land which then included plaintiff's said three acre tract, together " with the right of way for railroads or other roads over and through the surface thereof for the transportation to market of said minerals and mineral substances and products, whether in the raw or manufactured state," which deed was exhibited with the answer. It was further averred that the minerals and rights of way, so granted, had become the property of said East Lynn Coal Company. On the 8th day of May, 1905, a supplemental bill, alleging" the completion of said railroad and its operation as a common carrier, and praying that the defendant be enjoined from operating the same over and through said lands, or in any manner entering thereon, until it should have acquired the right of way by purchase or condemnation, was filed in court and an injunction, in conformity with the prayer thereof, was awarded. To this bill, an answer was filed, admitting the completion of the railroad and its operation by the defendant as alleged, but denying that said company had built it or owned it, and averring that the same had been built by the East Lynn Coal Company and was operated by the defendant, under an agreement or arrangement with the coal company, as a common carrier, as well as a carrier of coals from the mines of the East Lynn Coal Company on said tract of land, and claiming the right to so operate it. This appeal is from an order refusing to dissolve said last mentioned injunction.

Conceding the right of the coal company, after having constructed its railroad, to lease the same to the appellant, which seems to be admitted by counsel for the appellee, it does not follow that the lessee may use or operate it for a purpose other than that for which the way was granted. The coal company could not vest in the railroad company, by lease or otherwise, any' greater right or interest in the land, or subject it to a heavier burden or more extensive easement, than the clause in the deed, granting the easement, passed or authorized. It could vest in another only such right as it had acquired. The easement granted is defined and limited by the terms of the grant. It authorizes the construction, maintenance and operation of railroads on the land for the transportation to market of the mineral and mineral substances and products granted by the deed, and nothing more, in the absence of circumstances, not here disclosed, calling for an interpretation or construction, accordant with the true intent and meaning of the parties, giving a greater right of use. A railroad to be used merely as an instrumentality in the marketing of the coal granted, would impose a burden upon the land, shorter in duration and lighter in character, than a railroad operated as a common carrier. In point of time the operation of the road would be coextensive with the working of the mines, commencing with the opening of the mines, ceasing temporarily while they are closed, and terminating altogether upon the exhaustion of the mines; and, while in operation, the number of cars and trains run over the land would depend upon the extent of the mining operations and the quantity of the output. On the other hand, a common carrier road is in constant operation, doing a regular and a much heavier traffic, carrying, in addition to the output of the mines, a large amount of freight not emanating from them, as well as passengers, all of which necessitates the running of heavier and more numerous trains, and this burden would be indefinite in point of time. It might, and probably would, be permanent. Moreover, such a railroad requires better construction and maintenance, a...