Lynchburg Traction & Light Co v. City Of Lynchburg

• Decision Date: 11 June 1925
• Citation: 128 S.E. 606
• Court: Virginia Supreme Court
• Parties: LYNCHBURG TRACTION & LIGHT CO. v. CITY OF LYNCHBURG.

128 S.E. 606

LYNCHBURG TRACTION & LIGHT CO.

v.CITY OF LYNCHBURG.

Supreme Court of Appeals of Virginia.

June 11, 1925.

Error to Corporation Court of Lynchburg.

Action by the City of Lynchburg against the Lynchburg Traction & Light Company. Judgment for plaintiff, and defendant brings error. Reversed and rendered.

John L. Lee and S. V. Kemp, both of Lynchburg, for plaintiff in error.

Aubrey E. Strode and T. G. Hobbs, both of Lynchburg, for defendant in error.

BURKS, J. This was an action by the city of Lynchburg against the Lynchburg Traction & Light Company to recover for certain repairs made by the city to portions of its streets occupied by the tracks of the traction company. An account was filed with the notice of motion for a judgment, the two principal items of which were (1) repairs to that portion of Rivermont avenue which was outside of the corporate limits of the city in 1890; and (2) repairs to the Rivermont aqueduct within such corporate limits. The parties waived a jury, and submitted all questions of law and fact to the court, which rendered judgment in favor of the city for both of said items. The correctness of that judgment is called in question by the traction company by the writ of error awarded in this case.

In 1890, the northwest limit of the city of Lynchburg was at Jones street, about 1, 400 feet west of a deep ravine, through which the Blackwater creek passed. The Rivermont Land Company bought several thousand acres of land beyond this northwest boundary of the city, and also bought land in the city extending across this ravine to the city proper. The Rivermont Land Company intended to construct a bridge across this ravine, so as to connect its property with that of the city proper. It did construct this bridge or viaduct, 913 feet long and 60 feet wide, connecting its property with the city, and laid out a broad avenue known as Rivermont avenue, extending through its property within the city limits and for a distance of 3 miles outside of the city limits. This avenue was 80 feet wide, and laid out with the purpose of devoting 20 feet in the center of it to a double-track street railway, leaving 30 feet on each side for vehicles and passengers, which it proposed to put in first-class order for travel. The bridge was so constructed as to carry street railway tracks in the center thereof. The land company then constructed Rivermont avenue through its newly laid out streets within the corporate limits across the bridge to the intersection of Fourth and Main streets in the city. In laying out this avenue outside the city limits, it became necessary to cross several old county roads or streets, and also to occupy for a short distance a part of the old county road, 30 feet wide, known as the Lexington pike. At this place it was necessary for the land company to obtain permission from the county court to use these portions of the county road system. The land com-pany petitioned the county court to locate its tracks in the old county road, set forth that the company proposed to construct its car line through the center of this main avenue, and to leave open on each side a roadway and walkway 30 feet wide for the use of the public. It also asked for authority to construct the lines over the small portion of streets and roads above designated, and this authority was granted by the county court on December 8, 1890. So far as the county was concerned, it amounted to a slight change in the location of the county road for a short distance, giving a better and improved road. Otherwise than small sections of the county road system, the entire 3 miles of Rivermont avenue was constructed on land belonging to that company. There was no necessity to ask for the privilege to construct a line on its own land, and none was asked. About June 6, 1891, the land company placed its plans A and B on the records of Campbell county. These plans contained a detailed lay-out of the property of the Rivermont Land Company, but were not acknowledged in such manner as to constitute a statutory dedication of the highway. Consequently the dedication, it is admitted, was a common-law dedication. These plans showed the location of the electric railway through Rivermont avenue and across the viaduct, and also had plainly written upon them the following reservations:

"The Rivermont Land Company of Lynchburg, Va., reserves to itself the fee in all streets and alleys marked upon this map, and all others which it may hereafter lay out, subject to the use of the same by the public as a highway, but said use to the public is, however, to be subject to the use of said company for the purpose of constructing therein railroads whether to be run by steam, electricity, horse, or any other motive power, " etc.

The land company constructed a double-track street railway line in 1890 and 1891 along the center of Rivermont avenue, as indicated upon said plans. By deed bearing date February 1, 1892, the land company conveyed its railway lines, and all of its rights of way therefor to the Rivermont Street Railway Company, the predecessor in right and title of the plaintiff in error. Rivermont Street Railway Company was incorporated by an act of the Legislature approved December 17, 1891 (Acts 1891-1892, c. 12), and contained the most comprehensive powers. The charter authorized the land company to make sale to the street railway company, and to take stock of the latter company in payment. It provided that when consent to construct the railway had been already granted by the council of the city of Lynchburg, or the courts of Campbell and Bedford, to any individual or company in which the street railway company may derive any railway or any part of a plant con nected therewith, no further grant of such power should be required. It also provided that:

"When the company shall receive in payment of subscriptions to its capital stock from the Rivermont company, or from any other person or corporation, any roadway, poles, and other part of an electric or other plant located on the lands of said subscribing company, or other persons, the company shall take the same and operate them as a street car line without any such permit from said council or county courts, even though the land over which said railway runs and upon which said poles, wires, and other plant is placed has been dedicated to the use of the public as a highway, provided said dedication was made subject to said user for the purpose of a street railway."

It is perfectly manifest that the powers conferred by this charter were intended to carry into effect the very transactions which afterwards took place between the land company and the street railway company. The deed used the most comprehensive language, and conveyed to the street railway company practically every right which the land company had with reference to the street railway. It certainly conveyed the right of way upon which the track was located, and the rights reserved in the dedication of the land company to the public.' It plainly appears that the public were to have the avenue for street purposes, but that it was to be subject to the reservations hereinbefore stated. It recognized the fact that the land company had made the dedication subject to the reservations.

In 1893, some 18 months after the street railway company had acquired its deed and the rights thereunder, the Rivermont company conveyed its assets to Wm. V. Wilson, trustee, and it is claimed that, under conveyances through him, the city thereafter acquired the right to the fee in Rivermont avenue. It is doubtful if the city ever acquired such rights, but it is wholly immaterial, as the transaction was long after the railway company had acquired its rights.

In 1912, the city determined to improve Rivermont avenue by regrading and macadamizing it throughout its length and breadth. Prior to that time the street railway line was, at many places, a foot or two above the driveway on either side of its tracks, with crossovers at intervals. The city contracted for doing the regrading and macadamizing the avenue, including the space between the tracks and up to the tracks. The street railway was not a party to the contract, and had nothing to do with the regrading and paving; but it regraded its track so as to conform to the city's grading of the street, and had its work done with the very best material and workmanship. In making the contract for this repaving, the city required the paving company to lay wood block liners along the street car tracks, and at grade with the residue of the improved street. The other parts of the street, including the street railway area, were to be macadamized with a material called asphaltic concrete. The street railway company adapted its construction to that of the city.

It turned out that this use of wood block liners was only a partial success. Even before the work was entirely completed, the blocks began to buckle and get out of place, and left the street in a bad condition next to the rails.

The work was completed in the fall of 1913. From that time until June, 1919, either the city or the paving company made the repairs caused by the disordered and displaced wood block liners, by either replacing them or filling in the holes left by displacement with other materials.

In June, 1919, demand was made upon the street railway company to make the repairs of this character, but the company refused to do so, whereupon the work was done by the city, and the bill for it constitutes one of the large items for which judgment was rendered. It is nowhere claimed by the city that the street railway company had located or used in an improper manner its street railway, or had thereby broken the street or produced the disorder which necessitated the repairs.

As already pointed out, the judgment complained of embraced two items—one for street repairs to that portion of the street outside of the corporate limits of the city as they were in 1890, and...