Norfolk & W. Ry. Co v. Va.N Ry. Co

• Citation: 66 S.E. 863,110 Va. 631
• Court: Supreme Court of Virginia
• Decision Date: 03 November 1910
• Parties: NORFOLK & W. RY. CO. v. VIRGINIAN RY. CO.

110 Va. 631

66 S.E. 863

NORFOLK & W. RY. CO.

v.VIRGINIAN RY. CO.

Supreme Court of Appeals of Virginia.

Jan.13, 1910.

1. Eminent Domain (§ 47^*)—Crossing of One Railway by Another — Application of Statutes.

The right of one railway company by eminent domain to obtain a crossing over the tracks of another is not controlled by Code 1904, § 1105e, par. 52, providing that no corporation shall take property belonging to another corporation possessing the power of eminent domain, unless, after hearing all parties interested, the State Corporation Commission shall certify that public necessity shall so require and shall give its permission thereto, that paragraph applying to condemnation of a fee-simple interest in property belonging to another corporation, but by section 1294b, par. 3, providing that, if any railroad company deems it necessary to cross another railroad, it may do so.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 115; Dec. Dig. § 47.*]

2. Eminent Domain (§ 47*) — Crossing of One Railroad by Another — Repeal of Statute.

Code 1904, § 1294b, par. 3, being a specific provision and having been passed subsequent to section 1105e, par. 52, a general provision, and being clear and unambiguous, would govern it if there were any repugnancy between them.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 115; Dec. Dig. § 47.*]

3. Constitutional Law (§ 281*)—Due Process of Law—Condemnation Proceedings.

Code 1904, § 1294b, par. 3, provides that, when one railroad crosses another railroad, proper compensation for damages shall be allowed to be ascertained according to the laws regulating the exercise of eminent domain. Section 1105f, par. 6, provides that, when certain provisions have been complied with, the court of the county or corporation in which the land sought to be condemned lies shall appoint five commissioners to ascertain the just compensation and award damages. Held, that where commissioners are appointed by the court and directed to ascertain the proper compensation for damages, including the easement of crossing, to be paidby the petitioner as set forth in the order of a State Corporation Commission, when it found a necessity for the crossing, and, in obedience to that order, the commissioners report and the court allows certain damages, the court's order being sufficiently broad to embrace all just subjects of compensation, the tribunal provided and the proceedings before it, authorized by law, constitute due process of law.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 880; Dec. Dig. § 281.*]

4. Constitutional Law (§ 228^2-*) — Equal Protection of Laws—Condemnation Proceedings.,

Such a proceeding does not deny the equal protection of the laws.

[Ed. Note.—For other cases, see Constitutional Law, Dec. Dig. § 228.*]

5. Constitutional Law (§ 118*) — Obligation op Contracts—Exercise of Power op Eminent Domain.

Nor does such proceeding impair any contractual obligation between the state and the railway company whose track is crossed as evidenced by its charter and the charters of its predecessors.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 287; Dec. Dig. § 118.*]

6. Eminent Domain (§ 234*)—Ascertainment of Damages—Report of Commissioners— Necessity for Unanimity.

Code 1904, § 1105f, par. 6, provides that in eminent domain proceedings the court shall appoint five commissioners, any three or more of whom may act and award the damages. Section 1105f, par. 10, provides that, if the commissioners report their disagreement, the court may appoint other commissioners. Section 5, par. 3, provides that words giving authority to three or more persons shall be construed as giving such authority to a majority of them unless otherwise expressly declared. Held, that the disagreement referred to in paragraph 10 has reference to a failure to agree on that part of the number of commissioners authorized to make a report, and, section 1105f, par. 6. not expressly requiring unanimity, the majority could make a valid report.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 592-603; Dec. Dig. § 234.*]

7. Common Law (§ 11*) — Change by Statute.

The common law will not be deemed changed by statute, unless the legislative intent be plain.

[Ed. Note.—For other cases, see Common Law, Cent. Dig. §§ 9, 12; Dec. Dig. § 11.*]

8. Words and Phrases—"Expressly."

Webster defines "expressly" to mean "in direct terms."

[Ed. Note.—For other definitions, see Words and Phrases, vol. 3, pp. 2604, 2605.]

9. Eminent Domain (§ 235*)—Proceedings-Evidence of Damages to be Awarded.

Matters having evidentiary value on the question of award of damages in eminent domain proceedings should be brought to the attention of the commissioners appointed to ascertain the damages, and not to the circuit, court upon the hearing of exceptions to the commissioners' report.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 601; Dec. Dig. § 235.*]

Error to Circuit Court, Norfolk County.

Condemnation proceedings by the Tidewater Railway Company against the Norfolk & Western Railway Company. Pending the proceedings the corporate name of the Tide water Railway Company was changed to the Virginian Railway Company. The report of the commissioners was confirmed and defendant brings error. Affirmed.

The petition was as follows:

"To the Hon. Wm. N. Portlock, Judge of the Circuit Court of Norfolk County:

"The Tidewater Railway Company, a corporation duly existing under the laws of the state of Virginia, respectfully shows unto your honor the following case:

"First. That it has duly located the main line of its railroad from the West Virginia line through Virginia, to a point in Norfolk county on the Eastern Branch of the Elizabeth river, and that said line as so located crosses the line of the Norfolk & Western Railway Company in the county of Norfolk between the Eastern and Southern Branches of the Elizabeth river near what is known as 'South Norfolk' and as more definitely hereinafter described, and that it is constructing its whole line from West Virginia to said Eastern Branch, and has graded and is ready to lay its rails on each side of the proposed crossing.

"Second. That on May 23, 1905, Raymond Du Puy, general manager of the Tidewater Railway Company, submitted plans, specifications, appliances, and methods of operation for the Tidewater Railway Company's crossing of the Norfolk & Western Railway near South Norfolk, to N. D. Maher, general manager of the Norfolk & Western Railway Company. A duly certified copy of the notice submitting said plans, etc., and a duly certified copy of the plans, specifications, appliances, and methods of operation, are hereto annexed, marked 'Exhibit A, ' and prayed to be taken as a part hereof.

"Third. The Norfolk & Western Railway Company applied to the State Corporation Commission on the 20th day of June, 1905, to inquire into the necessity for such crossing and the propriety of the proposed location, in accordance with the statute in such case made and provided.

"Fourth. The State Corporation Commission on the 2d day of August, 1905, entered an order allowing the Tidewater Railway Company to cross the Norfolk & Western Railway at the point indicated in the said notice, dated the 23d day of May, 1905, above referred to, said place of crossing being described in said order as follows:

" 'Near South Norfolk in Norfolk county, Va., at station 623 plus 86 of the Tidewater Railway, as located and about 800 feet south of the tower at the beginning of the double track of the Norfolk & Western Railway Company running towards Norfolk, the said crossing to be on the grade of the Norfolk & Western Railway at the point of crossing.' A duly certified copy of which order of the State Corporation Commission, together witha duly certified copy of the memorandum of conclusions reached by the commission, are hereto annexed, marked 'Exhibit B, ' and prayed to be taken as a part hereof.

"Fifth. The Norfolk & Western Railway Company appealed to the Supreme Court of Appeals of Virginia from the order of the State Corporation Commission, and the said Court of Appeals affirmed the order of the State Corporation Commission by its order entered on the 1st day of March, 1906, and certified the same to the State Corporation Commission, a certified copy of which order of the Court of Appeals is hereto annexed, marked 'Exhibit C, ' and prayed to be taken as a part hereof.

"Sixth. Your petitioner avers that by the proceedings aforesaid it has acquired a right or easement of crossing with its track the track and right of way of the Norfolk & Western Railway Company at the point aforesaid, the said crossing to be constructed, maintained, and operated by your petitioner in accordance with the said order of the Corporation Commission, subject only to the payment to the Norfolk & Western Railway Company of proper compensation for damages for said crossing, as provided by the statute in such case made and provided.

"Seventh. The said crossing is wanted by your petitioner for its uses and purposes as a railroad corporation, and it proposes to construct, maintain, and operate the said crossing under the plans and specifications, with the appliances and according to the methods required by the said order of the Corporation Commission. Your petitioner cannot agree with the Norfolk & Western Railway Company on the amount of compensation the last-mentioned company is entitled to «n account of said crossing. Your petitioner has offered to pay said Norfolk & Western Railway Company the sum of $——. which it has refused to accept. Your petitioner therefore, in accordance with the statute in such case made and provided, has instituted these proceedings in order that the proper compensation for damages to which the said Norfolk & Western Railway Company is entitled may be determined as provided by law. A plat of the survey, with profile and description of the crossing, and memorandum showing...