Keystone Bridge Co. v. Summers

• Court: West Virginia Supreme Court
• Writing for the Court: GREEN PRESIDENT
• Citation: Keystone Bridge Co. v. Summers, 13 W.Va. 476 (W. Va. 1878)
• Decision Date: 06 July 1878
• Parties: Keystone Bridge Co. v. Summers, et al

13 W.Va. 476

Keystone Bridge Co.

v.Summers, et al

Supreme Court of Appeals of West Virginia.

Decided July 6, 1878.

1. The obstruction to a public highway, to justify the interposition of

a court of equity by injunction, must be more than a mere public nuisance threatened, it must ivork a special injury to the plaintiff; and the injury threatened must not be trivial, nor such as might be fully compensated in an action at law.

2. If the right of the public to the use of the highway is clear, and

a specific injury is threatened, of a serious nature and permanent character reaching to the very substance and value of the plaintiff's estate, by an obstruction of the highway, a court of equity ought to prevent such obstruction by injunction.

3. Under the road law chapter 194 of acts of 1872-3, in the establish-

ing of county roads by a county court: 1. It is unnecessary to cause notice thereof to be given to any person having liens on the land to be taken, or to any claimants of such land, other than the tenant in possession of the land as visible owner.

2. If the damages, or just compensation, in such cases are assessed under a writ of ad quod damnum, the county is chargable with such compensation; but it is not to be paid, till after the road has been established, and the land actually appropriated,

3. The party entitled to such compensation, so ascertained, though he be not the tenant in possession as visible owner, who alone was notified of the proceedings, may compel the payment of such compensation in the same manner as any other charge against a county is enforced. 4. If the road has been established by the consent of the tenant in possession as visible owner, without a writ of ad quod damnum, the party entitled to the compensation, if he be some other than this tenant, may affirm the agreement between this tenant and the court, and enforce the payment of the compensation, agreed on, to himself; or he may, if the agreement was made without his authority, require a writ of ad quod-damnum to assess the compensation, to which he is entitled;* but his so doing in no manner affects the right of the public to the use of the road already established, when such tenant alone was before the court. 5. The provisions of tie road law do not violate the 9th section of our bill of rights declaring, that private property shall not be taken or damaged for public use without just compensation; nor the 10th section of our bill of rights declaring, that no person shall be deprived of life, liberty or property without due process of law.

4. Under the 21st section of the road law, ch. 194 of acts of 1872-3, a surveyor may change a road, with the consent of the owner of the land, in which such change is made, in tie manner therein provided; but he has no authority to discontinue any portion of a road, without opening another in lieu of the portion discontinued, even though there be another public road already existing, which might be used instead of the portion of the road discontinued.

Appeal from, and supersedeas to, a decree of the circuit court of Kanawha county, rendered on the 1st day of June, 1877, in a cause in said court then pending, wherein the Keystone Bridge Company was plaintiff, and Lewis Summers and William McCraig were defendants, allowed on the petition of the said Summers.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the decree appealed from.

Green, President, furnishes the following statement of the case:

w In February, 1877, the Keystone Bridge Company filed a bill in the circuit court of Kanawha county against Lewis Summers and William McCraig, alleging that it, as a corporation, owned a toll bridge across Elk river near its mouth, the western approach to which "was a legally established county road, connecting the jbridge with the Charleston and Point Pleasant turnpike, and that this county road is under the charge of William McCraig, a regular appointed road surveyor; Jbut that Lewis Summers, without authority, had caused obstruc- tions to be placed in this county road, and threatened to further obstruct the same. That the said William McCraig, the surveyor, refused to remove or prevent such obstructions, whereby the plaintiff and others sustained serious and irreparable loss.

The bill prayed, that Summers and all others be enjoined till the further order of the court from obstructing this county road, and for general relief.

The injunction asked was awarded February 27, 1877. Summers filed an answer to the bill; and to this the plaintiff replied generally. The defendant moved to dissolve the injunction, which the court, by an order made June 1, 1877, refused to do; and from this order Summers has appealed to this Court. The facts of the case as shown by the record are as follows:

There is a suspension bridge across Elk river a short distance above the Keystone bridge; and the Charleston and Point-Pleasant turnpike leads to this suspension bridge. Connecting these two bridges is a road, dedicated to the public, along the western side of Elk river. This road runs through land formerly belonging to Major Carr, which had been purchased by J. B. Walker. Other streets were also opened on the Carr land. Behind the Carr land lay a farm, which formerly belonged to the defendant, Summers.

On February 10, 1871, Summers sold this farm to Walker, who conveyed it at the same time to William S. Laidley, trustee, to secure the unpaid purchase money, amounting to $36,414.00. A plat was made by Walker extending the streets on the Carr land through this land, bought of Summers. Among the streets, so drawn as extended, was one known as Kanawha street, which is the same as the county road named in the bill.

On September 1, 1873, Walker and wife sold and conveyed all this land, he had bought of Carr and Summers, as also certain land, he had bought of Holly Hunt, to the West Charleston Extension Company, excepting numerous lots, which had been previously sold by Walker, He did not execute a deed lor these lands, though he did execute and have recorded an agreement, whereby he admitted this sale to have been made, and that the legal title was to be retained by Walker, as trustee, for the convenience of making deeds to purchasers of lots, the purchase money to be paid over to the West Charleston Extension Company after the retention by Walker of the amount sufficient to pay off his vendor's lien, which was retained.

The following orders show, what proceedings were taken by the county court of Kanawha with reference to the county road, named in the bill.

The following order was made on the 2d day of November, 1875:

" Upon the petition of E. S. Arnold and N. Fitzhugh, and forty-two others, in writing, and upon the report in writing of Henry Fry Aultz, W. W. Wheeler, and John W. M. Appleton, who were appointed by a former order of this court viewers of the proposed way from Elk river at the Keystone bridge along Kanawha street of West End, to its intersection with the Charleston and Point Pleasant turnpike near Holly Hunt's residence, and upon the written evidence, filed with said report, of the important facts, that the said road has been well made and turn piked by private parties, at their own expense, and tendered to the county of Kanawha free of costs, and it is the shortest road to the court house, is perfectly straight and level, and sixty feet wide, and that the West End Extension Company, through whose land the same passes throughout, having consented in writing to the same, and to the establishment thereof as a public road, and upon the map and survey thereof, as filed with said report, showing accurately the said Kanawha street throughout, and the adjacent localities; and upon consideration whereof, and of all the evidence touching the same, it is ordered by the court, that the said proposed road be established as a public road, and the bounds of the said road precinct shall be, as set out and described in the said petition and report and map; and that Elisha I Williams be, and is hereby, appointed overseer of said road; and that all the hands, residing within the bounds of said road, do aid him in keeping the said road in repair."

And on the 15th day of January, 1876, the following order was made by said county court:

"The petition of W. T. Lucadoe and others, asking that the road established at the October term, 1875, known as the Keystone Bridge road, be vacated, annulled and set aside, and the said matters and things arising on said petition are continued until February term next. And it is ordered that a rule be issued directing the petitioners, at whose instance the said road was established, to appear at February term next, and show cause, if any they can, why the said order establishing the said Keystone Bridge road shall not be set aside, and that service of the same be had upon J. H. Brown, counsel for petitioners, which shall be deemed sufficient."

And on February 24, 1876, the following order was made:

"The petition of W. T. Lucadoe and others, asking that the order establishing the said road be set aside, coming up, and J. H. Brown appeared for the parties, who resisted the action asked for in said petition; and the matters arising thereon being argued and considered, the court, upon consideration, doth refuse to set aside the order establishing the said Keystone Bridge road. It is further ordered, that so much of the order referred to, appointing E. Williams as surveyor of the said Keystone Bridge road, is set aside; and that the hands in said precinct be required to work under the direction of the surveyor of Precinct No. 2; and that so much of the order aforesaid, as establishes a precinct out of Precinct No. 2, is also set aside, and held for naught."

The record does not show, who were the forty-two others, who united with Arnold and Fitzhugh in petitioning to open this county road; nor does it show, who the others were, who united with Luc ado c in asking to have the order...