Jeffers v. City of Charleston

• Decision Date: 25 January 1927
• Docket Number: 5860.
• Citation: 136 S.E. 863,103 W.Va. 51
• Parties: JEFFERS et al. v. CITY OF CHARLESTON et al.
• Court: West Virginia Supreme Court

136 S.E. 863

103 W.Va. 51

JEFFERS et al. v. CITY OF CHARLESTON et al.

No. 5860.

Supreme Court of Appeals of West Virginia.

January 25, 1927

Submitted January 12, 1927.

Rehearing Denied Feb. 25, 1927.

Syllabus by the Court.

A municipality possesses inherent authority under its general police power to exercise reasonable regulations in the manner of improving its streets, for the purpose of protecting and preserving the lives and property of its citizens.

Appeal from Circuit Court, Kanawha County.

Suit by G. P. Jeffers and others against the City of Charleston and others for injunction. From a decree overruling defendants' motion to dissolve a temporary injunction certain defendants appeal. Reversed, and temporary injunction dissolved.

A. G Stone, of Charleston, for appellants.

W. E R. Byrne, of Charleston, for appellees.

LITZ J.

The defendant city of Charleston appeals from a decree of the circuit court overruling its motion to dissolve a temporary injunction awarded by a member of this court, enjoining the city and the Andrews Asphalt Paving Company, contractor, from improving Pennsylvania avenue, between Lilly street and the corporation line, in accordance with plans and specifications providing for the paving of a 16-foot roadway on either side of a 12-foot strip in the center of the street, to be occupied by the track of the Kanawha & West Virginia Railway Company. Pennsylvania avenue is not only an arterial street, but forms part of an important state highway.

The Kanawha & West Virginia Railway Company has maintained and operated for about 20 years a steam railway over and along Pennsylvania avenue at an elevation of 3 feet above the surface of the street. The proposed plan of the work, on file at the passage of the resolution by the city council November 2, 1925, declaring the expediency and necessity of said improvement, provides for the relocation of the railway track in the middle of the street, level with curbs on either side, to be constructed 6 inches above the surface of the street and 6 feet from the center of the track, with a strip of pavement 16 feet wide along the outside of each curb; the railway company to pay for the curbs and the improvement of the 12-foot strip occupied by its track.

Complying with the protest of plaintiffs, February 22, 1926, the city council adopted the report of the street committee, recommending "that Pennsylvania avenue, from Lilly street to the corporation line, be paved flush with the railroad tracks on both sides of said tracks, so that the street would be paved and open to traffic over its entire surface, including the railroad track." Bids were then advertised for, and the contract was let to the defendant Andrews Asphalt Paving Company in accordance with the modified plan.

Before the work was started, however, the mayor and city council were more fully advised of the dangers incident to the plan of paving sought by the plaintiffs, and on June 7, 1926, directed the contractor to proceed with the work according to the original plans, which conform to the desires and recommendation of the state road commission. This suit followed.

The plaintiffs first contend that the city is compelled by section 61 of its charter to pave the whole street flush with the railway track, in order that the...