Lynch v. Town Of Nobthview

• Decision Date: 03 February 1914
• Citation: 73 W.Va. 609,81 S.E. 833
• Parties: LYNCH et al. v. TOWN OF NOBTHVIEW et al.
• Court: West Virginia Supreme Court

(73 W.Va. 609)

81 S.E. 833

LYNCH et al.

v.TOWN OF NOBTHVIEW et al.

Supreme Court of Appeals of West Virginia.

Feb. 3, 1914.

Rehearing Denied May 21, 1914.

(Syllabus by the Court.)

1. Municipal Corporations (§ 111*)—Ordinances—Requisites—Arbitrary Power.

Municipal ordinances placing restrictions upon lawful conduct or the lawful use of property must specify the rules and conditions to be observed in such conduct or business, and must admit of the exercise of the privilege by all citizens alike who comply with the rules and conditions.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 245-256; Dec. Dig. § 111.*]

2. Municipal Corporations (§ 661*)—Ordinances—Validity—Arbitrary Power.

A municipal ordinance making it unlawful to dig in the streets for the purpose of laying gas pipes, "without the consent of the council of the town entered upon the record of said town, " is void, for the reason that it vests the council with arbitrary power to discriminate between citizens who may wish to obtain the privilege.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§> 1432, 1434-1436; Dec. Dig. § 661.*]

3. Municipal Corporations (§ 665*) — Streets—Owner of Fee—Use of Subsurface.

The owner of the fee has a right to use the subsurface of a public street, subject to the superior right of easement therein in favor of the municipality for water, gas, and sewer mains, etc., provided he does not materially interfere with travel on the surface.

[Ed. Note.—For other cases, see Municipal. Corporations, Cent. Dig. § 1441; Dec. Dig. § 665.*]

4. Municipal Corporations (§ 668*) — Streets—Use of Subsurface—Obstruction.

In the absence of a municipal ordinance prescribing any rules or regulations governing the conduct of citizens in making excavations in the street, it is not unlawful for the owner of the fee to dig a ditch and lay a gas pipe line thereunder, provided he leaves the surface is as good condition as he found it, and does not materially interrupt travel thereon. Such temporary and partial obstruction is not per se a nuisance.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1444; Dec. Dig. § 668.*]

5. Municipal Corporations (§> 668*) — Streets—Use of Subsurface—Injunction.

A municipality which has not present need to occupy the subsurface of a street for its own purposes cannot enjoin the owner of the fee therein from making lawful use of it for his own private purpose.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1444; Dec. Dig. § 068.*]

'Additional Syllabus by Editorial Staff.)

6. Municipal Corporations (§§ 680, 6S1*)— Obstruction of Street—Right to Permit.

While a town incorporated under Code 1906, c. 47, cannot grant a right to occupy its streets permanently for a private purpose, it may, under proper regulations, permit a temporary obstruction thereof, in the interest of a private property owner.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1459-1466; Dec. Dig. §§ 680, 681.*]

Robinson, J., dissenting.

Appeal from Circuit Court, Harrison County.

Action by Van Linden S. Lynch and others against the Town of Northview and others. From the judgment, plaintiffs appeal. Reversed and remanded.

H. C. Batten, of Monongah, and Chas. E. Hogg and Chas. J. Hogg, both of Pt. Pleasant, for appellants.

Davis, Swartz & Temple-man, of Clarksburg, for appellees.

WILLIAMS, J. Plaintiffs have appealed from a vacation order, made by the judge of the circuit court of Harrison county on the 29th of October, 1911, dissolving a temporary injunction previously awarded, restraining the town of Northview from interfering with the laying of a gas pipe line by plaintiffs in one of its public streets. The town is situated in a gas-producing region; and, within its corporate limits, there are about 15 wells, some of which were drilled before, and some after, the town was incorporated, which was done, pursuant to chapter 47 of the Code, by order of the circuit court of Harrison county, made on the 20th of February, 1911. Plaintiffs obtained an oil and gas lease from the owners of lots 5 and 6 in said town, and proceeded to drill wellsthereon, without having obtained permission from the municipal authorities; and, acting under a municipal ordinance passed on the 4th of April, 1911, the mayor and council tore up the pipes which had been laid to conduct the fuel to the engine used to operate the drill. Thereupon plaintiffs applied to the court, and obtained an injunction restraining the town authorities from interfering with the drilling of the well until the further order of the court. That proceeding is still pending. Plaintiffs completed their wells and discovered gas, and made sale thereof to the Philadelphia Company, agreeing to deliver it into said company's receiving line, which ran not far from the wells. But, in order to make delivery, it was necessary to cross one of the public streets with their pipe line; and, when they began digging a ditch in the street, preparatory to laying their pipe line, they were arrested by the town authorities. They thereupon, the circuit court of Harrison county being in vacation, applied to a judge of an adjoining circuit, and procured an injunction restraining any Interference with the laying of their line in the street. On the 29th of October, 1911, in vacation, the judge of the circuit court of Harrison county dissolved the injunction on the motion of defendant, and, from that order, plaintiffs have appealed.

It appears that the municipal authorities have allowed other owners of gas wells within the town to use its streets to lay pipe lines, but upon what conditions and subject to what regulations, if any, or whether any license fee was charged for the privilege, it does not appear. The town authorities seek to justify their conduct on the ground that plaintiffs ignored their authority and refused to treat with a committee of their members, which had been appointed to negotiate terms and conditions concerning the privilege. Plaintiffs aver that defendants sought to charge them $500 for the privilege. This averment, however, Is denied in the answer; but the answer admits that the town council did, at one time, demand a fee of $500 each for drilling wells within the town. Defendants deny that they sought to charge plaintiffs any sum whatever for the privilege of laying their pipe line, and aver that they signified their willingness to V. S. Lynch, one of the plaintiffs, "to permit the laying of pipe lines in the public streets under such conditions and regulations as the council of the said town shall deem proper." They further aver that a committee was appointed to deal with said Lynch concerning the granting of such permission, and that he refused and openly stated in the presence of the council that he would pay no sum of money for the privilege, and that he would lay his pipe in the street without their permission.

The charter powers of the town are contained in chapter 47 of the Code; and section 28 of that chapter contains the following provision with regard to its control over and its right to regulate the use of the streets, viz.: "The council of such city, town or village, shall have plenary power and authority therein to lay off, vacate, enclose, open, alter, curb, pave and keep in good repair, roads, streets, alleys, sidewalks, crosswalks, drains and gutters, for the use of the public, or any of the citizens thereof, and to improve and light the same, and have them kept free from obstruction on or over them." Pursuant to the foregoing charter provision, there can be no doubt of the right of the municipal council to pass ordinances establishing reasonable rules and regulations governing the citizens and the public generally in the use of the streets. On the 4th of April, 1911, the council passed the following ordinance, viz.: "It shall be unlawful for any person to dig out or excavate in any street, alley or road of the town of North-view, or to remove any soil or other thing from said street, alley or road for setting of telegraph, telephone or other poles and posts, or laying gas mains, or for doing any other thing, without the consent of the council of the town entered upon the record of said town. And in case such consent or permit is granted by the council aforesaid, it shall be unlawful for any person obtaining such permit to neglect or fail to repair such street, alley or road aforesaid in such manner as to leave it in as good and permanent condition as the same was before such digging, or cutting, excavating or removing soli or other thing. It shall be unlawful for any person to take and carry away or destroy, injure or deface any property in said town, real or personal, not his own."

Counsel for plaintiffs insist that the ordinance is void, for the reason that it prescribes no uniform rule for the regulation of the conduct of all citizens alike, but leaves it within the arbitrary discretion of the council to grant permission to one and to withhold it from another, at its pleasure. The point is well taken. The rule, as stated in Smith on the Mod. Law of Munic. Corp. vol. 1, § 530, is as follows: "Ordinances which invest a city council, or a board of trustees, or officers, with a discretion which is purely arbitrary, and which may be exercised in the interest of a favored few, are unreasonable and invalid." This court held, in Town of Fulton v. Norteman, 60 W. Va. 562, 55 S. E. 658, 9 L. R. A. (N. S.) 1196, an ordinance Invalid which made it unlawful to bring into the town the carcasses of animals, or any portions thereof, intended for burial, cremation or the manufacture into fertilizer of any kind, but which did not make it unlawful to bring in such carcasses for other purposes, and which did not make it unlawful to manufacture fertilizer within the town from the offals of animals slaughtered therein. The ordinance was held to be an unwarranted discrimination in restraint of trade. "An...