Pittsburg v. Iron-works

• Citation: 8 S.E. 453,31 W.Va. 710
• Court: Supreme Court of West Virginia
• Decision Date: 15 December 1888
• Parties: Pittsburg, W. & K. R. Co. v. Benwood Iron-Works et al.

8 S.E. 453

(31 W.Va. 710)

Pittsburg, W. & K. R. Co.

v.Benwood Iron-Works et al.

Supreme Court of Appeals of West Virginia

December 15, 1888

1. Eminent Domain—Public Use—Judicial Question—Appeal.

Whether the use to which property sought to be taken under the exercise of eminent domain is public or private is a judicial question, subject to review by the appellate court. ¹

2. Same—Evidence of Use.

Evidence that all who wish to avail themselves of the proposed switch, branch-road, or lateral work can do so is not sufficient to show the use of the work will be for the benefit of the public.

3. Same— Property of Railroad Companies.

The property of railroad corporations, so far as concerns the ownership thereof, and the profit or gain to be made from their use, is to all intents and purposes private property, although applied to a use in which the public have an interest.

4. Same—Property Needed for Private Advantage.

As far as the public is concerned, when what railroad corporations need is for "public use, " they have the right to invoke the exercise of eminent domain; but, in so far as that which concerns them as to their private interests, their profits and gains are concerned, they stand as individuals, or merely as private corporations, in which the public has no concern, and for such private purposes cannot call into exercise the power of eminent domain.

5. Same—Switch to Manufactory.

Where a railroad corporation sought to condemn land, over which to build a switch, branch-road, or lateral work, to reach a private manufactory, a steel-mill, for the purpose of transporting freight to and from said steel-mill over petitioner's road, held, the use to which the land was to be subjected was a private, not a "public, use. "¹

(Syllabus by the Court.)

Error to circuit court, Marshall county.

Petition by the Pittsburg, Wheeling & Kentucky Railroad Company, to condemn certain lands belonging to the Benwood Iron-Works and others. Judgment for plaintiff, and defendants bring error.

Caldwell & Caldwell, for Iron-Works. Ewing, Melvin & Riley, for Ben-wood. W. P. Hubbard, for plaintiff.

Johnson, P. This is a condemnation proceeding. The plaintiff is a domestic corporation, incorporated by chapter 54 of the Acts of the Extra Session of the Legislature of 1868, and its name then was the " Pan Handle Railroad Company, " and was incorporated "for the purpose of constructing a railroad from Hollidays Cove Railroad, in Brooke county, to the town of Wellsburg, and thence to the city of Wheeling. " By the second section it was declared that said company should "be subject to all the provisions, and entitled to all the benefits, now conferred by law upon internal improvement companies, * * * and especially to the provisions of chapters fifty-six, fifty-seven, and sixty-one of the Code of Virginia. " By chapter 77 of the Acts of 1869 it was authorized "to extend its road from the city of Wheeling in the direction of the Kentucky state line, through such sections of the state contiguous to the Ohio river as said company may deem most desirable. " By chapter 52 of the Acts of 1871, the corporation name was changed to the "Pittsburg, Wheeling & Kentucky Railroad Company. " By section 5 of chapter 61 of the Code of 1860 it is provided that "the president and directors of any company incorporated to construct a railroad or other work of internal improvement may cause to be made, in connection therewith, branch railroads, or lateral works, not exceeding two miles in length; and, under a resolution adopted in general meeting by two-thirds of all the votes of all the stockholders, may cause to be made branch railroads or lateral works, not exceeding ten miles in length. " Section 69 of chapter 54 of the Code of West Virginia 1887 provides that "any railroad company organized under this chapter may build and construct lateral and branch roads or tramways, and of any gauge whatever not exceeding fifty miles in length. " By section 67 of the same chapter it is provided "that all existing railroad corporations within this state shall respectively have and possess all the powers and privileges, and be subject to all the duties and liabilities and provisions, contained in this chapter. "

On the 29th day of October, 1886, the plaintiff tendered its petition to the circuit court of Marshall county, alleging that it had constructed its railroadto Benwood, in Marshall county. That "recently, and since the construction of said railroad, a corporation known and called the ' Wheeling Steel-Works Company ' has erected a steel plant or works in the said city of Benwood, in said county, which plant lies next east of the Benwood Iron-Works. Said steel company produces large quantities of steel, and consumes large amounts of material, and your petitioner's said road is now unable to transport any of said steel or material, by reason of its having no track reaching to or into said steel-works. In order to reach said steel-works, by a track or switch leading from its said main track, your petitioner avers it is necessary to take certain lands hereinafter fully described. Said switch or track is to be constructed for the purpose of transporting freights to and from said steel-works over your petitioner's said railroad. " The description of the first lot sought to be taken is as follows: "Beginning at a point in the southern line of a street parallel to, and 276 1/2 feet distant northerly from, the Benwood Nail Factory, — said point being 125 feet westwardly from the west line of Second street, in said city of Benwood; running thence in a southerly direction, on a curved line to the left, having a radius of 350 1-10 feet, parallel to, and eight feet distant eastwardly from, the center line of the side track leading from the main track of the Pittsburg, Wheeling & Kentucky Railroad into the Wheeling Steel-Works, a distance of three feet; hence, on a reversed curved line to the right, having a radius of 366 1-10 feet, still parallel and eight feet distant eastwardly from said side track, a distance of 233 1/2 feet, to the said west line of Second street; thence by said line of said street south, 20 degrees and 42 minutes west, 28 feet, to a line parallel to, and 60 feet distant north-westerly from, said Benwood Nail Factory; thence by said line north, 69 degrees and 18 minutes west, 34 feet; thence, on a curved line to the left, having a radius of 326 1-10 feet, parallel to, and 32 feet distant westwardly from, the said side track, a distance of 224 3-10 feet; thence on a reversed curved line to the right, having a radius of 390 1-10 feet, a distance of 52 2-10 feet to the southern line of the first-mentioned street; thence by said line of said street south, 69 degrees and 18 minutes east, 62 1/2 feet, to the place of beginning, —containing an area of twenty-four one-hundredths of an acre, more or less. " The second parcel is also described in like manner, and contains an area of nineteen one-hundredths of an acre. A plat is exhibited with the petition, which shows the exact location of the land sought to be taken, and is made a part of the petition.

The petition shows that the whole of the first parcel of land is owned by the Benwood Iron-Works, a corporation under the laws of West Virginia, and engaged in the manufacture of iron and nails; that there are no liens on said parcels of real estate, and no buildings or other improvements thereon, and lying open and unused; that it is unable to agree with said Benwood Iron-Works in relation to the price of said parcel of land, the said company refusing to sell it for any price; and that said parcel of land is necessary for the construction of petitioner's said track. The petitioner avers that the second parcel of land is partially claimed by different persons. The north 60 feet is claimed by Mrs. Hannah McMechen, H. B. McMechen, and Eliza McMechen Mayes, as the devisees in fee of the late Hiram McMechen, while at the same time the Benwood Iron-Works claims to be the owner thereof in fee, and the city of Benwood claims that it constitutes a part of one of the public streets of the city; that the remainder of said parcel of land is claimed in fee by the Benwood Iron-Works. Notice was served on the parties, and the petitioner prayed the court to appoint commissioners to ascertain what will be a just compensation to the parties owning said parcels of land sought to be taken, etc.

The plat shows that to go to said steel-works two streets of the city of Benwood would have to be crossed, and that it would diagonally cut the vacant lot, and passing along Second street, and partly on the land of the Benwood Iron-Works, and between the iron-works, terminate at the steelworks. When the petition was presented the city of Benwood appeared and objected to the filing of the petition, but the court overruled the objection, and permitted the same to be filed. On the 7th of April, 1887, on demurrer to said petition, the court held "that the use set forth in the petition to which the track of the railroad is to be put, for which the lands are sought to be condemned, are not public uses, and the prayer of the petitioner should be denied. " Whereupon the petitioner asked leave to amend its petition, to which the Benwood Iron-Works and the city of Benwood objected, but the objections were overruled, and the leave was granted. On the 29th day of Juno, 1887, the petitioner tendered its amended petition in pursuance of the leave granted by the court. The city of Benwood and the Benwood Iron-Works filed their objections in writing to the filing of said amended petition, and the city of Benwood filed its demurrer in writing to said petition, and said objections and demurrer were argued, and taken under consideration by the court, and the court overruled the objections and the demurrer, and permitted the petition to be filed, and notice was ordered to be given the defendants who had not appeared. The description of the property in the amended...