Newport News & O. P. Ry. & Electric Co v. Hampton Rd.S Ry. & Electric Co.

• Decision Date: 16 June 1904
• Citation: 102 Va. 795,47 S.E. 839
• Court: Virginia Supreme Court
• Parties: NEWPORT NEWS & O. P. RY. & ELECTRIC CO. v. HAMPTON ROADS RY. & ELECTRIC CO. (two cases).

47 S.E. 839

102 Va. 795

NEWPORT NEWS & O. P. RY. & ELECTRIC CO.

v.HAMPTON ROADS RY. & ELECTRIC CO. (two cases).

Supreme Court of Appeals of Virginia.

June 16, 1904.

MUNICIPAL CORPORATIONS — STREET RAILWAYS —CONTROL OP STREETS — VESTED RIGHTS — COMPETING LINES—ORDINANCE—LIMITATION OF TIME FOR COMPLETING LINE—RIGHT TO TAKE ADVANTAGE OF BREACH.

1. Where a street railway company has lines of railway constructed in territory under authority of the board of county supervisors, and the territory is subsequently incorporated as a city, the control of the streets, including those on which railway lines have been built, passes from the board of supervisors to the municipal authorities.

2. Where a street railway company merely has permission for the laying of a double track on a street which is subsequently included within the limits of a city, but the company took no advantage of the right to lay a doubt track, and used a single track, in disobedience of the orders of the city authorities, it has no vested rights which will prevent the city from granting to another street railway company the right to put down a double-track car line on the street.

3. Where a street railway company had the right to put down a track for the operation of its lines within a limited time, but failed to put the track down in the time limited, the waiver of the forfeiture of the company's franchise by the state or municipality is not the granting of a new right.

4. Where the failure to complete a street railway within the time limited for its construction is due to an injunction being granted against the company by a competitor, the right to put down the line is not lost by the expiration of the period limited.

5. The failure to complete a street railway line within the time limited for its construction cannot be taken advantage of in a private action by a competitor to enjoin construction of the line, but any forfeiture can be enforced only on behalf of the public at the election of the state.

¶ 5. See Street Railroads, vol. 44, Cent. Dig. § 53.

Appeal from Circuit Court, Elizabeth City County.

Suits by the Newport News & Old Point Railway & Electric Company against the Hampton Roads Railway & Electric Company, and by the Hampton Roads Railway & Electric Company against the Newport News & Old Point Railway & Electric Company, heard together. From a decree for defendant in the first suit, and complainant in the second, the Newport News Company appeals. Affirmed.

S. Gordon Cumming, for appellant.

R. G. Bickford, Thos. W. Shelton, and W. J. Nelms, for appellee.

CARDWELL, J. In October, 1898, the Newport News, Hampton & Old Point Railway Company was the owner of an electric street railway between the city of Newport News and the federal reservation at Old Point, which passes through the said city, portions of the counties of Warwick and Elizabeth City, and of the town of Hampton. Its system consisted of a single track, with occasional turn-outs and switches, and a branch line extending from the main line, a distance of about 2 1/2 miles, to Buckroe Beach, a summer resort. In the month of October, 1898, the Newport News & Old Point Railway & Electric Company, for a valuable consideration, purchased all and singular, the rights, privileges, franchises, and properties of the said Newport News, Hampton & Old Point Railway Company, and immediately after its purchase began to improve its property, preparing plans for the eventual double-tracking of the entire system.

This new company obtained a franchise to double-track and parallel itself in the city of Newport News. In May, 1899, it obtained from the council of the town of Hampton the right to construct and operate an additional street railway track on, over, and along Armistead avenue and Queen street— being the streets theretofore occupied by a single track—and during the same month (May, 1899) obtained from the board of supervisors of Elizabeth City county the right to double-track where there had been theretofore a single track, "from Gatewood's corner to Libby's corner, on Mellen street; on, over and along the county road now occupied by said company." A portion of this latter grant from the board of supervisors was over certain county roads and streets, which on April 1, 1900, became part of the town of Phoebus, which town was incorporated by an act of the General Assembly of "Virginia, approved January 22, 1900, and in force on and after April 1, 1900. Acts 1899-1900, p. 98.

That portion of the route authorized to be double-tracked by the board of supervisors, described as "from Gatewood's corner to Libby's corner, on Mellen street, " is a distance of 7, 176 feet. The distance from Gate-wood's corner to the corporation line of the town of Phcebus is 2, 994 feet—approximately one-third the entire double route granted by the board of supervisors of Elizabeth City county—and from the corporate line to the intersection of Mallory and County streets is 2, 401 feet, and from the intersection of Mallory and Mellen streets to Libby's corner, in Mellen street, is 1, 681 feet. The Newport News & Old Point Railway & Electric Company has maintained a switch or turnout on Mallory street, between Mellen and County streets, thus affording a double track of this block; and prior to January 1, 1900, it, acting under the authority of the order of the board of supervisors, had double-tracked, and was operating its cars on such double track, from Gatewood's corner to the intersection of County and Mallory streets, but it did not at that time, nor up to the beginning of this litigation, double-track the bed of Mellen street, as it had leased a piece of track running on County street, one block distant from Mellen street, from the Citizens' Railway, Light & Power Company, and was using that for the return route for its ears from Old Point to Hampton, and now owns the track on County street. So that at the beginning of this litigation the Newport News & Old Point Railway & Electric Company had not exercised the right conferred upon it by the order of the board of supervisors to lay a double track in Mellen street, but for more than a year had only operated thereon a single track, upon which its cars ran in going to Old Point from Newport News, and in returning passed over and along County street, one block from Mellen street, and in the meantime had taken up its old track, and replaced it with new rails as a single track, and thereby indicated its purpose to continue to run its cars in only one direction along Mellen street. At the session of the General Assembly of Virginia of 1899-1900 (Acts 1899-1900, p. 495) the Hampton Roads Railway & Electric Company was granted a charter, and authorized to construct and operate, or otherwise acquire, a line of street railway in the city of Newport News, the town of Hampton, in the town of Phcebus, and in the counties of Elizabeth City and Warwick; and it has constructed the larger portion of its line, through the agency of the Vandegrift Construction Company. In December, 1900, this last-named company was granted by the council of the town of Phcebus the right to construct and operate a double-track street railway system within the limits of the said town, over certain streets therein, designated as "beginning on Mallory street, opposite Scgar street, a double track on, over and along Mallory street from the said Scgar street to the farthest side of Mellen street from said starting point; a double track on, over and along Mellen street from Mallory street to and across Water street, and into Mill Creek as far as the boundary line of the town of Phcebus extends. * * * For the purposes herein named, said company is hereby authorized and empowered to parallel or straddle any existing track upon said streets, or that may be placed upon the same hereafter. * * * The said company shall, unless prevented by the mandate of the highest court having cognizance of the litigation (should there be any) operate at least one track along the streets above mentioned, and all of its cars bound in a westerly direction shall go over said line. * * * And if it shall be finally determined that the said company has the legal right to operate a double-track street railway on Mellen and Mallory streets, then that part hereof which permits the said company to operate a railway on Segar street and Willard avenue shall become null and void six months from the date of such final determination * * * unless the said railway company shall operate a fifteen minutes'schedule on said Mallory, Mellen and Segar streets, and Willard avenue, " etc.

Under the provisions of section 8 of the above-mentioned ordinance, it was provided that the Hampton Roads Railway & Electric Company commence its work in Phoebus within one year, and that its road be completed within two years from January 1, 1901; and in December, 1901, shortly before the expiration of the first year, and before it had begun any work within a mile and a half of Mellen street, the Hampton Roads Railway & Electric Company began to lay its track on Mellen street on both sides of the existing single track of the Newport News & Old Point Railway & Electric Company, whereupon the Newport News & Old Point Railway & Electric Company enjoined the Hampton Roads Railway & Electric Company and the Vandegrift Construction Company from proceeding with this work, upon the ground that it would constitute a deprivatipn of the vested rights of the complainant. Upon the granting of this injunction the general manager of the Newport News & Old Point Railway & Electric Company on the next day put a force of men to work tearing up the work done by the Hampton Roads Railway & Electric Company, and to install a double track on Mellen street, whereupon it was enjoined by the Hampton Roads Railway & Electric Company. By the terms of the...