Ohio River R. Co v. Ward

• Decision Date: 12 December 1891
• Citation: 14 S.E. 142,35 W.Va. 481
• Court: West Virginia Supreme Court
• Parties: Ohio River R. Co. v. Ward.

14 S.E. 142

35 W.Va. 481)

Ohio River R. Co.

v.Ward.

Supreme Court of Appeals of West Virginia.

Dec. 12, 1891.

Eminent Domain—Injunction—Damages-Decree.

1. The distinction between mere damage to property by an internal improvement company in the construction of its work, and the actual appropriation or taking of the same, is to be observed and insisted upon where an injunction is prayed by the owner, as it has been heretofore defined by this court in Mason v. Bridge Co., 17 W. Va. 396; Spencer v. Railroad Co., 23 W. Va. 407; Arbenz v. Railroad Co., 33 W. Va. 1, 10 S. E. Rep. 14; and Railroad Co. v. Gibbens, 12 S. E. Rep. 1093.

2. Where, in order to sustain a bill of injunction, a jurisdictional fact is necessary to be es tablished, such fact must be not only alleged in the bill, but it should be sustained by sufficient evidence to at least make a prima facie case before the court proceeds to refer the cause to a commissioner, or to order an issue out of chancery.

3. When an order is made by the chancellor directing an issue of quantum damniftcatus in a suit between the owner of property and an internal improvement company, the order should state that the issue is to be tried by a jury of 12 freeholders, If either party desires it.

4. In such case, the issue is in the nature of an inquisition on behalf of the court to determine the amount which should be awarded to the owner in consideration of the involuntary appropriation of his private property to the public usethrough the agency of an internal improvement company, to which has been delegated by gen eral law, or otherwise, the right of eminent domain. The question of title is ordinarily not involved, and the jury should assess the value of the fee where the property is taken, or the amount of damage thereto when the property is only damaged.

5. Upon the finding of the jury in such case, it is error to decree the amount so found against the company in such forms that execution can be issued upon the foot of the decree. The order should be that, when the company pays to the owner, or deposits in court, as the case may be, the sum found by the jury, the injunction shall be wholly dissolved, but until that time it is continued in full force and effect. Mason v. Bridge Co., 20 W. Va. 243.

{Syllabus by the Court.)

Appeal from circuit court, Wood county.

Suit for injunction by Patrick Ward against the Ohio River Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

V. B. Archer ami J. B. Jackson, for appellant.

J. O. McCluer and Geo. Loomis, for appellee.

LUCAS, P. The facts of this case are as follows: In the year 1883, the Ohio River Railroad Company, a corporation duly chartered under the laws of the state of West Virginia for the purpose, was constructing a line of railroad down the Ohio river, from the city of Wheeling to and through the city of Parkersburg. On the 26th day of June, 1883, the mayor and council of the city of Parkersburg, the legally constituted corporate authority of said city, by an ordinance, granted to the said railroad company the right to lay its tracks, construct and operate its railroad through said city, and along an up-on certain streets and alleys therein, and, among others, along Second street in said city. In pursuance to said authority, said railroad company began the work of constructing a line of railroad from Ann street, along Second street, for the purpose of connecting its line of railroad with the line of the Parkersburg Branch Railroad Company, which railroad was being constructed along and upon the surface of said Second street. The authority so given to the Ohio River Railroad Company to construct its line of railroad along Second street, from Ohio street to Green street, authorized it to cross Ann street, Juliana street, Market street, and Avery street, and all alleys from Ohio street to Green street. At this time the plaintiff, Patrick Ward, claimed title to a lot situated at the corner of said Second and Market streets, upon which was situated a building in which said Ward was carrying on a livery business. The property fronted on Market street, with the side on Second street; and, on the 3d day of September, 1883, said railroad company was engaged in constructing its line of railroad along Second street, past the lot so occupied and claimed by said Patrick Ward. On said day said Ward presented his bill in chancery to the judge of the circuit court of Wood county, in chambers, praying for an injunction to enjoin, restrain, and inhibit the said Ohio River Railroad Company from laying its tracks along Second street, in front of said plain tiff's property, and from running its locomotives and cars upon any tracks which might be so placed upon said street, and from doing any act which would deprive said Ward from the use of said street, and from interfering with or causing damage, in any manner, to his said property, and for general relief; and thereupon the judge of said court awarded an injunction to enjoin, restrain, and inhibit the Ohio River Railroad Company, and all its servants and agents, from constructing any track or tracks, and from operating any railroad, on Second street, in the city of Parkersburg, Wood county, and from in any manner interfering with or causing damage to said plaintiff's property, as complained of in said bill, until a just compensation for said damages arising to said plaintiff from the acts and things thereby enjoined should be first paid, or secured to be paid, to him; and said judge also ordered that the effect of said injunction might be suspended upon the Ohio River Railroad Company giving bond in a penalty of $3,000, with condition to pay to said Ward a just compensation for all damages that he might, in any proceeding taken, show himself entitled to by reason of the construction and operation of the defendant's railroad on said Second street.

The defendant railroad company demurred to the plaintiff's bill, which demurrer was by the circuit court of said county overruled on the 10th day of December, 1887, and the defendant then tendered its answer to the plaintiff's bill, to which the plaintiff replied generally; and, on the said 10th day of December, 1887, the court, without any testimony whatever having been taken in the cause, on motion of the plaintiff, directed an issue in said cause to be tried by a jury to ascertain what damages, if any, the defendant railroad company had caused the plaintiff's property by the construction and operation of its railroad along Second street, in front of plaintiff's property; and, on the 16th day of December, 1889, a jury was impaneled to try said issue on the law side of said court, and, on the 24th day of December, 1889, said jury rendered a verdict upon said issue in favor of the plaintiff, and assessed the damages at $1,400. The defendant moved to set aside this verdict, which motion the court overruled, and to which ruling the defendant excepted; and the court certified the verdict of the jury, and also certified the exceptions taken, to the chancery side of the court, to be filed in said chancery suit; and, on the 8th day of March, 1889, the defendant again made amotion on the chancery side of the court, in said chancery suit, to set aside said verdict, which motion the chancellor overruled, and thereupon the defendant moved the chancellor to set aside said issue upon the grounds that the same was improperly directed, which motion the court overruled; and the court then proceeded to render a decree in said cause against the defendant, the Ohio River Railroad Company, for the sum of $1,400, the amount of damages ascertained by the jury, with interest and costs; and from this decree this appeal and supersedeas were obtained. Inits answer the defendant denies all the material allegations of the bill. It exhibited an ordinance of the city of Parkersburg, authorizing it to construct its tracks along Second street, and averred it was proceeding in strict accordance with said ordinance. It denied that the construction and operation of its road would injure the plaintiff; that no part of his property would he taken; that the property of the plaintiff fronted on Market street, and the railroad was being constructed along the side of the plaintiff's property on Second street.

The first question to be considered is whether the demurrer to the bill was properly overruled. The doctrine upon this subject is well settled by this court in Spencer v. Railroad Co., 23 W. Va. 407; Mason v. Bridge Co., 17 W. Va. 396; Ar-benz v. Railroad Co., 33 W. Va. 1, 10 S. E. Rep. 14; and Railroad Co. v. Gibbens, 12 S. E. Rep. 1093. In Spencer v. Railroad Co., Judge Green points out thatthe constitution of this state most carefully guards the property of its private citizens against the exercise of the right of eminent domain, when delegated by the state to an internal improvement company, except under the conditions prescribed by the constitution of the state, and that of the United States. He points out the distinction, however, which the phraseology of the constitution establishes between the actual taking of private property for public use, and the merely inflicting of damage upon it. In the one case—that is, where the property is actually taken—it cannot be appropriated, nor used by the company, until just compensation shall have been paid, or secured to be paid, to the owner. This restriction against appropriating private property for public use until compensation has been paid or secured does not apply to damaging private property, as to which just compensation is guarantied, and the right of an...