Miller v. Navigation Co.
| Decision Date | 05 February 1889 |
| Court | West Virginia Supreme Court |
| Parties | Miller v. Navigation Co. |
Jurisdiction Supreme Court of Appeals.
In an action of assumpsit by a private corporation, authorized by its charter to levy tolls upon persons using a river, which had been improved by it, against the defendant for tolls, the defendant pleaded non assumpsit, and there is a judgment for the plaintiff for less than $100.00. Upon a writ of error by the defendant, held, this court has no jurisdiction to review the judgment of the Circuit Court, although the record shows that the real defence to the action was, that the condition of the river was such, that the plaintiff had no right to levy the toll, for which the judgment was recovered.
Loomis $ > Tavenner and 0. Johnson for plaintiff in error.
J. A. Hutchinson and J. B. Jackson for defendant in error.
Snyder, President:
Writ of error to a judgment of the Circuit Court of Wood county rendered on December 24, 1887, in an action theretofore commenced by the Little Kanawha Navigation Company against D. M. Miller before a justice of said county. The claim of the plaintiff was for tolls on tweuty two log-rafts, $66.00 and for penalty (double tolls,) $66.00 making together, $132.00. The justice gave the plaintiff judgment for $122.00; and the defendant, Miller, appealed to the Circuit Court, where the case was tried upon the issue of non assumpsit before a jury, which found a verdict in favor of the plaintiff for $66.00, for which sum the court after overruling the motion of the defendant to set aside the verdict entered judgment; and it is to this judgment that the defendant, Miller, obtained this writ of error.
The first question presented is: Has this court jurisdiction of the case? The defendant in error, the Little Kanawha Navigation Company, is a domestic corporation. It was first incorporated by statute in 1863 and was authorized to improve the navigation of the Little Kanawha and Hughes rivers by locks and dams, sluices, canals or other usual modes of improvement, commencing at or near the mouth of the Little Kanawha river, and extending up the same and Hughes river so far, as may be deemed practicable, with power to condemn lands and to "charge and receive such tolls for the use of their [its] improvement as may be fixed by the Board of Public Works or by law." By an act passed March 4, 1868, the legislature amended the charter of the company and therein prescribed specific tolls to be charged by the company, and among others fixed the rate of "toll on timber and logs at two cents per hundred cubic feet per mile."
The facts certified in this case show, xhat said company accepted the said charter and improved both of the aforesaid rivers; that it had constructed several locks and dams on the Little Kanawha below the mouth of Hughes river, one at Leach town, thirteen miles from the mouth of the Little Kanawha river, and another at Shacktown, four miles from the mouth of said river; that these locks and dams were during the whole month of February, 1887, in good order and condition; that about the 17th day of February, 1887, the defendant, Miller, passed twenty two rafts of logs from a point about one mile above the mouth of Hughes river over said two dams; that the toll on said rafts at the rate the company is authorized to charge was $66.00 and that this sum was demanded of the defendant, and he refused to pay the same or to pay any toll whatever on said rafts; that at the time said rafts were passed over said dams, the back-water from the Ohio river was over the dam at Leach town, and the lock at that place as well as the one at Shacktown was entirely under water; and that not only rafts but steam-boats passed over the dams on that day without touching either locks or dams.
The counsel for Miller, in their brief, say: "The question involved is not whether these tolls or lockages were excessive, but whether, at the time they were demanded and quoad this transaction, the plaintiff had the right to levy any tolls whatever." This is a correct statement of the only plea or ground of defence made by the defendant in this case. He concedes, that, if he is not legally entitled to use the river without the payment of tolls, when by reason of the high water in the river he can pass over the dams without using the locks, then he is liable for the tolls, which the plaintiff has charged him, and that the judgment of the Circuit Court must be affirmed.
But on the other hand the counsel for the plaintiff contend, that the question presented is not, whether the plaintiff had the legal right to levy tolls, but whether the defendant owed the amount recovered by the plaintiff in this case, and that, the amount recovered being less than $100.00, this Court has no jurisdiction to review the judgment of the Circuit Court.
The third section of article VIII of our constitution declares, that the Supreme Court of Appeals "shall have appellate jurisdiction in civil cases, (1) where the matter in controversy exclusive of costs is of greater value or amount than $100.00; (2) in controversies concerning the title or boundaries of land, the probate of wills, the appointment or qualification of a personal representative, guardian, committee or curator; (3) or concerning a mill, road, way, ferry or landing; (4) or the right of a corporation or county to levy tolls or taxes; and (5) also in cases of quo warranto, habeas corpus" etc. Our statute carrying into effect these provisions is substantially the same as the constitution. Code, c. 135, s. 1.
As the amount in controversy in this case is less than $100.00, it is plain, that the jurisdiction of this court, if it exists at all, is conferred by that one of the above provisions, which declares, that it shall have jurisdiction "in controversies concerning the right of a corporation or county to levy tolls or taxes." In order to show that this provision does not confer jursidiction, the counsel for the defendant in error rely on the follwing cases: Hutchinson v. Kellam, 3 Munf. 202; Skipivith v. Young, 5 Munf. 276; Hancock v. Railroad Co., 3 Gratt. 328; Clark v. Brown, 8 Gratt. 549; Umbarger v. Watts, 25 Gratt. 167.
The act of 1792 defining the jurisdiction of the Supreme Court of Appeals of Virginia, under which the first two of the above-cited cases were decided, provided, that said Court should have jurisdiction, where " the matter in controversy should be equal in value exclusive of costs to $100.00 or be a freehold or franchise." Under this statute it was decided in Hutchinson v. Kellam, 3 Munf. 202, that," to give the court of appeals jurisdiction, on the ground that the matter in controversy is a freehold or franchise, the right to the freehold or franchise must be directly the subject of the action not incidentally or collaterally." This was an action of trespass quare clausum, fregit, and the record showed, that the title or bounds of land was drawn in question, but, as the damages recovered were less than $100,00, the jurisdiction was denied. Cabell, J., in his opinion says: This view of the case was concurred in by Judges Roane and Fleming.
The case of Skipwith v. Young, supra, was an action on the case for injury to the plaintiff's family and to his adjoining land occasioned by the erection of a mill and dam by the defendant. It plainly appeared from the pleading in the case, that the right of the defendant to erect the mill was drawn in question, but, the damages recovered being less than $100.00, it was held, that the court of appeals had no jurisdiction, although the statute in express terms gave such jurisdiction in cases, where the matter in controversy was a freehold or franchise, regardless of the amount or value in controversy. Brooke, J., in his opinion after reviewing and affirming the principles and decision of the court in Hutchinson v. Kellam says: ...
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