Norfolk & P. Traction Co v. City Of Norfolk

• Decision Date: 16 January 1912
• Citation: Norfolk & P. Traction Co v. City Of Norfolk, 115 Va. 169, 78 S.E. 545 (1912)
• Court: Virginia Supreme Court
• Parties: NORFOLK & P. TRACTION CO. v. CITY OF NORFOLK.

(115 Va. 169)

78 S.E. 545

NORFOLK & P. TRACTION CO.

v.CITY OF NORFOLK.

Supreme Court of Appeals of Virginia.

Jan. 16, 1912.

On Petition to Rehear, June 12, 1913.

1. Street Railroads (§ 37^*)—Construction —Repair of Streets.

The charter of a street railway company, incorporated by the state, provided that it should keep that portion of the city streets occupied by its tracks well paved and in good repair without expense to the municipality. Code 1904, § 1294i (3), authorized street railway companies to lay their tracks in the streets with the consent of municipalities, but required them to restore the pavements and to maintain them in good condition. Held that, in view of the strict construction against the charter, the company was required to keep pace with the growth and progress of the city and to conform its pavements to the policy of the municipality in the matter of street improvements.

[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 103, 105; Dec. Dig. § 37.*]

2. Street Railroads (§ 37*)—Construction —Maintenance of Street.

In paving a street where an extra concrete base was necessary under the tracks of a street railway company, required to repair and keep in good condition the pavements between its tracks because of the weight of the company's vehicles, it was liable for the extra expense.

[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 103, 105; Dec. Dig. § 37.*]

3. Street Railroads (§ 37*)—Ordinances-Powers.

Where the charter of a street railway company, incorporated by the state, provided that it should keep that portion of the street occupied by its tracks well paved and in good repair without expense to the municipality, those provisions were mandatory, and the city council could not shift any burden from the company to the municipality; any attempt to do so being ultra vires.

[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 103, 105; Dec. Dig. § 37.*]

4. Street Railroads (§ 37*)—Equitable Estoppel.

Where the charter of a street railway company obligated it to pave and keep in repair, without expense to the city, that portion of the street within its tracks, an ultra vires ordinance shifting the burden from the railroad to the city will not estop the city from requiring a compliance with the charter.

[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 103, 105; Dec. Dig. § 37.*]

On Petition to Rehear.

5. Appeal and Error (§ 173*)—Presentation of Grounds of Review Below—Necessity.

In an action by a city against a street railway company for the recovery of sums expended in paving that part of the street which the company was required to maintain, the contention that the company was not liable because notice to pave was not given before the city laid the pavement, cannot for the first time be raised on appeal, particularly where the agreed statement of facts did not mention it, and the omission might have been supplied below.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.*]

Error to Law and Chancery Court of City of Norfolk.

Assumpsit by the City of Norfolk against the Norfolk & Portsmouth Traction Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

H. W. Anderson, of Richmond, and Walter H. Taylor, of Norfolk, for plaintiff in error.

Geo. C. Cabell, of Norfolk, for defendant in error.

WHITTLE, J. This is an action of assumpsit brought by the defendant in error, the city of Norfolk, against the plaintiff in error, the Norfolk & Portsmouth Traction Company, to recover by way of damages the cost of materials and labor furnished and done by the plaintiff in laying wood block paving, in repaving between and for two feet beyond the outer rails of the defendant's tracks on Granby street, and for similar re-paving with wood block and bitulithic paving on Botetourt street, also for furnishing materials and laying extra concrete base under the defendant's tracks in connection with such repaving. The defendant paid the cost of labor for the work, but denied liability for the cost of materials. There was a verdict and judgment for the plaintiff for $22,060.93, to which judgment this writ of error was awarded.

The question for our determination is whether the defendant is responsible for the cost of materials furnished by the plaintiff.

On January 4, 1866, the General Assembly incorporated the Norfolk City Railroad Company, the predecessor of the plaintiff in error, granting the company the privilege of laying its tracks in the streets of the city of Norfolk, but upon condition that the consent of the council of the city should be first obtained. Clause 3 of the charter provides: "That said company shall keep that portion of the street occupied by its track or tracks, embracing the space between said tracks and a distance of at least two feet beyond the outer rails thereof, well paved and in good repair, without expense to the corporation of the city of Norfolk; and the rails used for said tracks shall be of the most approved pattern for such purposes, and shall be laid at the distance of five feet five inches between the outer ridges or flanges thereof, so as to form as little obstruction as practicable to the passage of carriages or other vehicles along or over said tracks."

This controversy arises not so much over the interpretation of the foregoing clause (the language of which is free from ambiguity) as it does with respect to the attempted modification of the obligations thereby imposed upon the company by section 9 of an ordinance passed by the city council December 14, 1887.

Section 9 is as follows: "The said railway shall be so made and laid down as to conform to the established, or proposed, grades of the several streets to be occupied by it, as given by the city engineer; and in case theseveral streets occupied by it shall, in the future, be paved, or repaved, the city of Norfolk shall furnish and deliver the material therefor upon said streets and have the work done; but the proprietors, or lessees, of said railway shall pay the said city for the cost of labor for paving the same between the tracks and two feet on each side thereof, such amount, in case of nonpayment by the company for a period of thirty days after the work is done, to be recoverable by legal proceedings in the name of the city. And in case the grade of said streets, or any of them, or any part thereof, shall be changed hereafter, the proprietors or lessees of the said railway, at their own expense, shall make corresponding alterations of the said tracks; and the owners, proprietors or lessees of the said railway, shall keep the streets covered by said tracks, and extending two feet on the outer limits of each side of said tracks, in thorough repair at their own expense."

We have no difficulty in reaching the conclusion that, as an original proposition, the predecessor of the defendant was under charter obligation to keep its portion of the streets, as therein defined, well paved and in good repair and at its own expense. The charter so declares in language too plain to call for construction or to admit of controversy. See, also, Va. Code 1904, § 1294i (3), which authorizes a street railway company, with the consent of the municipal authorities, to lay its tracks in the streets, but likewise imposes upon such company the duty to restore the pavements of the streets and to maintain them in gopd condition.

The apparent conflict among the authorities on the subject of the extent of the liability of these companies is due to differences in the language of their charters.

For example, in the case of Chicago v. Sheldon, 9 Wall. 54, 19 L. Ed. 594, so much relied on by the plaintiff in error, the charter there construed was quite different from this charter. It required the company to keep its portion of the street "in good repair, " while the language here employéd is to keep it "well paved and in good repair."

In construing language similar to that found in the present charter, in cases arising in some of the most progressive and important cities of the country, the trend of the more recent and best considered decisions is to hold street railway companies to a high degree of responsibility and strict compliance with their charter duties in relation to their occupancy of streets. The courts proceed upon the theory that franchises granted to such companies are in derogation of common right, and are considered an encroachment upon the primary use of the streets by the public, and the principle is fundamental that such grants are to be construed most strongly against the grantee. Hence it is said: "A charter, having the elements of a contract, granted to a street railway company, is to be strictly construed against the company, and it has no doubtful rights under such charter, for, when there are doubts, they are construed against the grantee and in favor of the city." Western Paving & Supply Co. v. Citizens' St. R. Co., 128 Ind. 525, 26 N. E. 188, 28 N. E. 88, 10 L. R. A. 770, 25 Am. St. Rep. 462. The decisions of the Supreme Court of the United States are especially pronounced in maintaining this construction. St. Clair, etc., v. Illinois, 96 U. S. 63, 24 L. Ed. 651; Oregon R. & N. Co. v. Oregonian R. Co., 130 U. S. 1, 26, 9 Sup. Ct. 409, 32 L. Ed. 837; Knoxville Water Co. v. Knoxville, 200 U. S. 22, 26 Sup. Ct. 224, 50 L. Ed. 353.

As corollary to this canon of construction, it is the accepted doctrine that the obligation resting upon a street railway company to keep its portion of the streets "well paved and in good repair" (or language of like import) necessarily involves the duty to keep pace with the growth and progress of the city, and to conform its work to the policy of the municipality in the matter of street improvement. Hence for a company to pave with cobblestones could not be regarded as a compliance with its duty to keep its part of the street "well paved and in...