Mcclintock Et Ux v. Richlands Brick Corp.

• Decision Date: 15 November 1928
• Citation: 145 S.E. 425
• Parties: McCLINTOCK et ux. v. RICHLANDS BRICK CORPORATION et al.
• Court: Virginia Supreme Court

145 S.E. 425

McCLINTOCK et ux.

v.RICHLANDS BRICK CORPORATION et al.

Supreme Court of Appeals of Virginia.

Nov. 15, 1928.

Appeal from Circuit Court, Tazewell County.

Suit by John W. McClintock and wife against the Richlands Brick Corporation and others. From a decree of dismissal, complainants appeal. Reversed and rendered.

J. W. Harman, of Tazewell, and Walter M. Elswick, of War, W. Va., for appellants.

Spratt & Spratt, of Richlands, and George C. Peery, of Tazewell, for appellees.

PRENTIS, C. J. The outstanding facts in this case may be thus stated: The appellants, then residing at Jewell Ridge, Tazewell county, own two adjoining vacant lots, the westerly side of one of which abuts upon Virginia street, in the town of Richlands, in that county, upon which street the Richlands Brick Corporation has constructed a tramway or railway, for the purpose of hauling clay and shale in tramcars to its brick kilns for the manufacture of brick. Their claim of the right so to use the street is based upon a special act of the General Assembly and an ordinance of the town passed pursuant thereto. The act reads:

"An Act to authorize the town council of the town of Richlands, Virginia, to grant to any person, firm or chartered company, engaged in mining, manufacturing or merchandising, a right of way for the construction, operation and maintenance of a tramway or railway, across, upon or along any of the avenues or streets of said town, subject to such regulations as the said town council may prescribe.

"Approved February 12, 1926.

"1. Be it enacted by the general assembly of Virginia, That the town council of the town of Richlands, in Tazewell county, Virginia, be and it is hereby, authorized, subject to the provisions of section one hundred and twenty-five of the Constitution of Virginia, and the general laws enacted in pursuance thereof, to grant to any person, firm or chartered company engaged in mining, manufacturing or merchandising, a right of way for the construction, operation and maintenance of a tramway or railway across, upon or along any of the avenues or streets of said town, for a period not to exceed thirty years, subject to such regulations for the protection of the public as the said town council may prescribe.

"2. An emergency existing, this act shall be in force from its passage." Acts 1926, p. 28.

Upon this tramway, or railway, the brick company operates a small steam engine, called a "dinkey, " with dump cars, by which clay, shale, and like materials for the manufacture of brick, are transported.

The town council, by written petition, signed by a very large number of citizens, representing the property and business interest of the town, were urged to accord the privilege. Included among the petitioners were all of the owners of property on Virginia street, except the five original complainants, three of whom have since had the suit dismissed as to them, without prejudice, and with the right reserved hereafter to institute suits or actions at law against the defendant, as they may be advised. So that we need only consider the claims asserted by these two appellants.

The case was heard on the bill and answer, the result of which is:

"To admit the truth of all matters of fact sufficiently pleaded in the answer whether responsive to the bill, or whether in confession and avoidance; and to "submit to the court the decision of the question whether on the facts as they appear from the answer, the decree should not go in favor of the plaintiff.

"In short, going to hearing on the bill and answer is, for some purposes, practically the same as a demurrer at law to the plea.

"Since this course on the part of the plaintiff excludes any opportunity on the part of either party to take testimony, there is good reason for the rule that the plaintiff thereby admits the truth of all facts set up in the answer relevant to the case stated in the bill. * * *

"On such hearing, if the answer is held insufficient in law as a defense to the bill, the plaintiff is entitled to a decree. If, on the other hand, the answer is held sufficient, the bill is dismissed. Hence the result is decisive for one or the other of the parties." Lile on Eq. Pl. & Pr. §§ 249-250.

The facts set up in the answer show that the grant to the brick corporation was the permission to construct and operate a tramway not exceeding 12 feet in width, the street being 60 feet wide, except that immediately after it passes the southwest corner of one of the lots of complainants the width narrows to 30 feet, and the tramway is on the part of the street farthest away from the side of one of the two vacant lots of the appellants. All of the owners of lots on the far side of the street apparently assent to the construction and operation of the tramway. It was at the instance of the citizens of the town that the special act in question was adopted. If valid, it authorizes the municipality, "to grant to any person, firm or chartered company engaged in mining, manufacturing or merchandising, a right of way for the construction, operation and maintenance of a tramway or railway across, upon or along any of the avenues or streets of said town, for a period not to exceed thirty years, subject to such regulations for the protection of the public as the said town council may prescribe, " and subject to the provisions of section 125 of the Constitution.

Section 125 of the Constitution forbids the granting of such franchises, leases, or right to use any public property or easement of any description in a manner not permitted to the general public, without first advertising for bids publicly, or for a period longer than 30 years. Among its provisions is this:

"Every such grant shall specify the mode of determining any valuation therein provided for, and shall make adequate provision by way of forfeiture of the grant, or otherwise, to secure efficiency of public service at reasonable rates, and the maintenance of the property in good order throughout the term of the grant."

The franchise granted was accordingly advertised and so offered.

The brick corporation was the only bidder, and received the grant for the nominal con-sideration of $1, upon the condition that it should grade the street under the supervision and in accordance with the specifications of the council and pursuant thereto. According to the allegations of the answer, the grantee proceeded to grade the street, converting it from an ungraded and little used street into a usable, serviceable street, capable of handling many times the traffic that would want to use It; that it is thereby made more accessible and easier to travel than before, all of which confers distinct advantages to the property along the street, tends to enhancement of values, and results in convenience and benefits to the owners thereof, which is recognized by all of them except the appellants. The track is narrow gauge, laid on light rails let down into the surface of the street.

It is said in the brief that the town contains some 800 or 1, 000 inhabitants, that the brick plant is the only local enterprise of consequence; and it is averred in the answer that it employs about 75 men, who with their families constitute 300 persons (or perhaps one-third of the population of the town). Its pay roll is about $6,000 per month for labor, and its average expenditures about $10,000 per month; that its operation is beneficial to the town and adds materially to the value of all residential property therein. The brick corporation, before the granting of this franchise, had exhausted the material for the manufacture of the brick which it owned in that locality, and was contemplating the necessity of moving from the town. The people of the town, as a matter of public concern, prevailed upon the corporation to continue its operations there. As a consequence, the brick corporation then purchased a small tract of land, lying at the east end of Virginia street, which contained material suitable for Its purposes. The plant being located in the town but west of this tract of land, the only feasible way of utilizing the clay thereon is by transporting it by some means over the part of Virginia street in which this tramway is being operated. Prior to this time the street had neither been graded nor improved, and there was no prospect that it would at any time in the near future be so improved or used to any considerable extent.

In view of the conceded facts of the case, the grievances of appellants are alleged in the bill and restated in their briefs in somewhat fanciful and exaggerated language— that is, the averments are as though the Richlands Brick Corporation were operating a transcontinental line of railway, and as though the resulting damages were such as would be imposed upon owners of property abutting the streets of a residential section of a populous city. In their brief, however, the appellants' counsel are somewhat more restrained, and state the true issue thus: "The gist of this suit does not turn upon the amount of damages, but is for an invasion of a legal right."

The trial court denied the injunction prayed for, and dismissed the bill, and the complainants appeal.

The case has been elaborately argued, and involves questions which have exercised the courts for many years. We shall not undertake to state, follow, or discuss, all of these questions, upon most of which we believe everything has been said which can be profitably said by the courts of this country. Decisions and judicial expressions to sustain almost any specific contention which can arise as to the varied uses of streets may be found in the books.

As is truly said in the brief for the appellees, however, there are two main propositions asserted for the appellants: First, the contention that the act is invalid because it authorizes the taking or damaging of private property for private purposes; and, secondly, that it is special or class legislation, prohibited by section 63, cl. 18,...