Norfolk & W. Ry. Co v. City Of Bristol

• Decision Date: 12 November 1914
• Citation: 116 Va. 955,83 S.E. 421
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. CITY OF BRISTOL.

83 S.E. 421

116 Va. 955

NORFOLK & W. RY. CO.

v.CITY OF BRISTOL.

Supreme Court of Appeals of Virginia.

Nov. 12, 1914.

1. Municipal Corporations (§ 648*)—Public Ways—Prescription.

Where for more than 50 years the public aad used a footpath across a railroad track at its intersection with a street as dedicated by the grantor of the railroad right of way, which path had been kept in repair, sometimes by the city and sometimes by the railroad, which use had been recognized by the railroad as a matter of right and not merely permissive, the city has acquired a way by prescription, regardless whether the original dedication was prior to the grant of the railroad right of way.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1421, 1422: Dec. Dig. § 648.*]

2. Railroads (§ 243*)—Highway Crossing-Flagmen—Statute—' 'Highways."

In Code 1904, § 1294d, cl. 61, authorizing a city to require a railroad company to station a flagman where any highway is crossed by the railroad, the term "highway" is used in its generic sense, and includes passageways used by foot travelers only.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 754, 757; Dec. Dig. § 243.*

For other definitions, see Words and Phrases, First and Second Series, Highways.]

3. Railroads (§ 242*)—Crossings—Regulation of Public Ways—Path Acquired by Prescription.

A public footpath across a railroad track at its intersection with a city street is subject to regulation and control by the city council, regardless whether it was part of the highway as originally dedicated, or had become a public way by prescription.

[Ed. Note.—For other cases, see Railroads. Cent. Dig. §§ 752, 754-757; Dec. Dig. § 242.*]

4. Railroads (§ 98*) — Crossings — Duty to Maintain.

The fact that, because of the increase in a railroad's business, the continued maintenance of a public footpath across the track will seriously interfere with the railroad's operation does not affect the right of the public to have the path kept open.

[Ed. Note.—For other cases, see Railroads. Cent. Dig. §§ 291, 292, 296; Dec. Dig. § 98.*]

5. Railroads (§ 95*)—Crossings—Duty to Maintain.

Where a public footpath crossed a railroad at a point where the tracks were in a cut, and steps had been constructed down both sides of the cut, the railroad company, even if not required to maintain the steps, can be compelled to restore them after it has removed them for its own purpose.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 274-283; Dec. Dig. § 95.*]

6. Mandamus (§ 132*)—Subjects of Relief-Maintenance of Railway Crossing by Railroad.

Mandamus is the proper remedy to compel a railroad company to perform its duty to restore steps on a public footpath crossing its tracks and to maintain a flagman at that point as directed by the city council.

[Ed. Note.—For other cases, see Mandamus,.Cent. Dig. §§ 266, 267; Dec. Dig. § 132.*]

Error to Corporation Court of Bristol.

Mandamus by the City of Bristol against the Norfolk & Western Railway Company. Judgment for the plaintiff, and defendant brings error. Affirmed.

Lucian H. Cocke, of Roanoke, and S. V. Fulkerson, of Bristol, for plaintiff in error.

Floyd H. Roberts, of Bristol, for defendant in error.

CARDWELL, J. This is a writ of error to a judgment rendered in the corporation court

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexesof the city of Bristol, directing the issuance of a peremptory writ of mandamus, requiring plaintiff in error to replace certain steps and to maintain a flagman at a certain point on plaintiff in error's railway where Edmond street and the tracks of plaintiff in error intersect and cross in the city of Bristol, Va.

It appears that Samuel E. Goodson, on the 9th day of December, 1851, conveyed to the Virginia & Tennessee Railroad Company, the predecessor in title to plaintiff in error, a right of way for a railroad 80 feet in width, which deed embraces that portion of the right of way that is the subject of this controversy and across which a footway is claimed by defendant in error in this proceeding. Some time prior to the year 1856 said Goodson caused to be made by one E. Winston a plan and map of Goodsonville, which map is a part of the present map of the defendant in error, the city of Bristol, and in the year 1856 the land covered by "Winston's map, " as well as adjoining lands, was incorporated under the name of the town of Goodson. Acts 1855-56, p. 190. By an act of the Legislature in 1890 (Acts 1889-90, c. 202) the name of the town of Goodson was changed to that of the city of Bristol, and the controversy here is as to the right of the city to an easement in the public of a footway for pedestrians over and across the tracks of plaintiff in error where they intersect and cross Edmond street, and to compel plaintiff in error to repair certain steps for the use of pedestrians, and to maintain a flagman at that point.

The cause was heard before the lower court upon the pleadings and the evidence taken on behalf of the respective parties, without a jury, and at the October, 1913, term of the court the order and judgment of which plaintiff in error complains was entered.

In a written opinion made a part of the record the learned judge below has so fully and clearly discussed the law and the facts of the case, and so satisfactorily presented the views entertained by this court with respect to the questions involved, that we adopt the same as an entirely sufficient and satisfactory disposition of the controversy:

"This is an application by the city of Bristol for a writ of mandamus to compel the Norfolk & Western Railway Company to comply with the following city ordinance, which was passed on the 13th day of May, 1913, to wit: "

" 'Whereas, in the opinion of this council the place where Edmond street and the tracks of the Norfolk & Western Railway Company intersect and cross in the city of Bristol, Virginia, is considered as dangerous; and

" 'Whereas, said crossing has been rendered more dangerous since said company removed the steps on the northern side of said crossing; and " 'Whereas, in the opinion of this council, the public interest requires that a flagman be stationed and kept at said crossing:

" 'Therefore, be it resolved that said Norfolk & Western Railway Company be required, and said company is hereby ordered, to restore and repair said steps and to put said crossing in proper condition for safe and speedy travel, and to station and keep at said crossing a flag man between the hours of 7 o'clock a. m. and 10 o'clock p. m. of each day.

" 'Resolved further that this resolution shall take effect on and after June 15, 1913.

" 'Resolved further that a certified copy hereof be given to the general manager of said company as written notice of said regulations and requirements.'

"The railway company was duly notified of the foregoing ordinance, but declined to meet its requirements, and thereupon this proceeding was instituted.

"It is well to have in mind at the outset, that while the pleadings and the evidence have appeared to take a somewhat wider range, the real issue is whether the city is entitled to have the steps restored and the flagman stationed, as demanded in the ordinance.

"The case was heard without a jury, and upon a careful consideration of the evidence I find that the weight of it warrants the following statement:

"Edmond street, as the same appears on the maps filed with the record, is a duly established street, extending up to the defendant company's right of way on each side thereof, and the intersection of the street and right of way is very nearly in the heart of the populated section of the city. This street and the main line of what is now the Norfolk & Western Railway leading into Bristol were located about the same time. Which of these locations was prior to the other in point of time cannot be certainly determined from the evidence, but for 50 years or more the public has used Edmond street as a public thoroughfare for vehicles and pedestrians up to the right of way on each side thereof, and has used the right of way as a public crossing for pedestrians at that point for a similar length of time. For 25 years or more the city has maintained a board walk on Edmond street, extending up to the right of way on both sides. The crossing in question has not been used for vehicles because there is a railroad cut at the point of intersection of the street and right of way, and the approaches to the crossing have not been graded so as to make it possible for vehicles to pass over the tracks. As appears from testimony referring to one of the maps filed in evidence, which is of record and is the oldest map in existence covering that part of the city, Edmond street and Mary street, which are parallel streets, were laid out at the same time and by the same landowner, and in the outset there was no way for vehicles to cross the railroad on either of these streets, but subsequently an overhead bridge was constructed on Mary street. The Edmond street crossing, being centrally located, and being the only one between Mary street and State street (a distance af about 2, 000 feet) is one of much public importance and usefulness. For...