Mason v. The Harper's Ferry Bridge Co..
| Decision Date | 18 December 1880 |
| Citation | 17 W.Va. 396 |
| Court | West Virginia Supreme Court |
| Parties | Mason v. The Harper's Ferry Bridge Co. et al. |
1. The power to grant injunctions in vacation and to require bond to be then given carries with it as a necessary incident the right to hear and determine in vacation a motion to require a new bond to be executed with an enlarged penalty.
2. Upon a motion before a judge in vacation to require of the plaintiff a new injunction-bond with an enlarged penalty, the proper order to make, if the old bond is insufficient, is, that if the new bond is not given within such reasonable time as the court under the circumstances shall fix, after such time the injunction shall be dissolved until such bond be given.
3. Equity has jurisdiction to restrain the taking or damaging of private property for public use without just compensation, even though an action at law will lie for the recovery of damages in such cases, after the property has been so taken or damaged.
4. Under the general law, as it existed at the time the plaintiff's ferry was established in 1879, he, as proprietor of such ferry, had the exclusive privilege of transporting persons and things across the Shenandoah river within a half mile of his ferry.
5. The unauthorized erection of a bridge for transportation across the. stream within a half mile of a ferry already established was as much prohibited by the statute as the establishment of another ferry within the same distance.
6. The right to establish ferries and toll-bridges is in the Legislature, and it could at any time by a repeal of the general law or by special act, but for our Constitution, take away all the exclusive privileges of proprietors of ferries theretofore existing.
7. Under our general corporation-laws a corporation maybe created for the construction of a toll-bridge to accommodate travel across a stream, and the construction of such bridge is a, {work of internal improvement."
8. Franchises and corporate rights granted Indirectly by the State through instrumentalities provided by general laws for such purposes are the same in effect, as if the power conferring such franchises and rights had been exercised directly by the State itself.
9. The Legislature has not either expressly or by implication repealed the general law, in force when the plaintiff's ferry was established, giving exclusive privileges to proprietors of ferries within a half mile of their ferries.
10. The statute authorizing incorporations is general in its terms, and a statute general in its terms and without negative words will not be construed to repeal by implication the particular provisions of a former statute, which are special in their application to a particular case or class of cases, unless the repugnancy be so glaring and irreconcilable as to indicate the legislative intent to repeal.
11. A ferry-franchise is private property within the meaning of the Constitution which declares that private property shall not be taken or damaged for public use without just compensation.
12. The Legislature by the general law, under which the defendant was incorporated, and the other laws applicable to corporations did not invest the Harper's Ferry Bridge company with power to take or damage any private property, unless compensation was paid or secured to be paid to the owner.
13. It is true, that the charter of the defendant and the general law, under which it issued, authorized the bridge company to build its toll-bridge at Harper's Ferry, but on the same condition that any other improvement company might construe; its works, by acquiring the right to take or damage such private property, as was necessary for such improvement, by paying or securing to be paid to the owner thereof a just compensation therefore.
14. If the proprietor of the ferry had not under the general law of the State had an exclusive privilege of transporting persons and things across the river within a half mile of the bri dge of the defendant, then the bridge company would not have been under the necessity of paying any attention to the rights of the proprietor of the ferry, because under the law, under which it was in corporated, it would have had the same right as such proprietor of transportation across the Shenandoah river.
15. The erection of a bridge within a half mile of a ferry, although it would confessedly very materially diminish the profits of the ferry-franchise, would not be a taking thereof within the meaning of the constitutional prohibition, but is a damaging thereof within the said prohibition.
10. There being as yet no legislation prescribing the manner in which an internal improvement company can acquire the legal right to damage private property for the use of such corporation, and the plaintiff having the right, as was done in this cause, to restrain the defendant from constructing and operating its bridge, and thus damaging his private property, until just compensation should be paid or secured to be paid to him, equity will in this cause award an issue quantum damnificalus, to assess the damage to the plaintiff's ferry-franchise by the erection and use for public travel of the toll-bridge of the defendant across the Shenandoah river at Harper's Ferry; in which issue said Mason shall be plaintiff, and The Harper's Ferry Bridgecompany defendant: and after said damage is so ascertained, the injunction shall continue in force until compensation for the same is paid 5 but when paid the injunction shall be wholly dissolve d
17. As the Constitution declares, that in ascertaining such damage " when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders," when said issue is awarded, if either of the parties to the cause require it, the order awarding said issue shall provide, that it shall be tried by an impartial jury of twelve freeholders.
Appeal from and supersedeas to an order of the judge of the circuit court of the county of Jefferson, made in vacation, on the 2d day of September, 1879, in a cause in said court then pending, and alss to a decree of the said court rendered on the 21st day of November, 1879, in the same cause, wherein James M. Mason was plaintiff, and The Harper's Ferry Bridge Company and others were defendants, allowed upon the petition of said Mason.
Hon. John Blair Hoge, late judge of the fourth judicial circuit, rendered the order appealed from.
Johnson, Judge, furnishes the following statement of the case:
The plaintiff filed his bill in equity on the 21st day of July, 1879, in the county court of Jefferson county, in which he alleges, that he is the owner in fee of one ninth interest in a tract of sixty-eight and one half acres of land lying on the eastern bank of the Shenandoah river at Harper's Ferry; that by the county court of Jefferson county an order was made on the 22d day of March, 1878, granting leave to the plaintiff to establish a ferry, which has been done; that after that time certain parties had become incorporated under the general law, receiving their certificate of incorporation from the Secretary of State; that they were so incorporated, as the " Harper's Ferry Bridge Company," * * " for the purpose of constructing and operating a toll-bridge from the town of Harper's Ferry, in the county of Jefferson, State of West Virginia, across the Shenandoah river;" that about the 28th of June, 1879, the defendants without permission or authority and without acquiring the legal right to do so entered upon and took forcible possession of a part of said land for the purpose of erecting a toll-bridge thereon, and are now proceeding to erect such bridge, and unless restrained will erect and operate said bridge; that plaintiff's ferry is equipped and conducted as required by law, furnishes ample, convenient and cheap means of crossing the river, and fully accommodates all the travel over the river within a half mile thereof; that in order to put his ferry into its present successful operation, plaintiff incurred an expense of upwards of $1,500.00, and up to the present time has not realized therefrom $500.00; that the laws of this State give to him as the proprietor of such ferry an exclusive right of charging toll for transporting persons and things across said river within a half mile of its location; that his franchise yields to him a revenue of $800.00 per year; that its value consists in the said exclusive privilege granted to him under the law; that said franchise is valued for taxation at $8,000.00; that nine tenths of the custom is the travel up the Hillsboro grade, which runs along the river-bank upon the said sixty-eight and one half acres, terminates at the eastern landing of the ferry; that the defendant declares its intention to erect forthwith and open for travel to the public its said pro- posed toll-bridge, which will be within less than two hundred yards of the plaintiff's ferry; that defendant is about to erect said toll-bridge with the purpose of diverting from the ferry and appropriating to itself all the tolls paid by all those, who travel within a half mile of plaintiff's ferry; thereby taking all the toll, which it was the design of the law to secure to plaintiff; that such will be the inevitable effect of the erection and operation of said bridge, and the said erection and operation of said bridge by defendant will necessarily damage irreparably plaintiff's said property, and be in derogation of his vested exclusive right as aforesaid: that defendant has refused to make to the plaintiff any compensation whatever.
The bill also alleges, that the defendant has taken a large quantity of stone from the said sixty-eight and one half acres of land, and that he, the plaintiff, is entitled to the one ninth of the value thereof.
He prays, that an account be taken and the value of the stone taken as aforesaid be ascertained and the defendant be decreed to pay plaintiff one ninth thereof; and that an account be...
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