Richmond v. Johnston

• Decision Date: 12 January 1905
• Citation: 49 S.E. 496,103 Va. 456
• Court: Virginia Supreme Court
• Parties: RICHMOND, F. & P. R. CO. v. JOHNSTON et al.

49 S.E. 496

103 Va. 456

RICHMOND, F. & P. R. CO.

v.JOHNSTON et al.

Supreme Court of Appeals of Virginia.

Jan. 12, 1905.

HIGHWAYS—POWER TO CONDEMN RAILROAD PROPERTY.

1. The general power to condemn land, conferred by Code 1887, §§ 1095, 1096, which authorizes the crossing of railroad tracks by a highway, is insufficient to authorize the condemnation for highway purposes of property purchased and used by a railroad company for station grounds and yards.

Error from Circuit Court, Henrico County.

Condemnation proceedings by one Johnston and others against the Richmond. Fredericksburg & Potomac Railroad Company. From a judgment for petitioners, defendant brings error. Reversed.

Leake & Carter, for plaintiff in error.

Sands & Sands, for defendants in error.

KEITH, P. The Richmond, Fredericks burg & Potomac Railroad Company and the Chesapeake & Ohio Railway Company operate lines of railroad from the city of Rich-mond, in a northerly direction, into and beyond the county of Henrico. A short distance beyond the city limits a public thoroughfare was constructed between the two roads, and it became desirable, with a view to its extension, to cross the tracks of the Richmond, Fredericksburg & Potomac Railroad. This company had purchased a parcel of ground from Lewis Ginter, containing about nine acres, for which it paid the sum of $6,714.75, and received a deed dated November, 1891, which was admitted to record on the 1st day of February, 1892. This plat of ground is 120 feet in width and 3, 250 feet in length, and is adjacent to the original right of way upon which the principal tracks of the railroad company are laid, and the purpose was to lay down upon it switches and other conveniences for the storing of cars and making up and shifting of trains.

Johnston, Beattie, and others filed their petition in the county court of Henrico county in September, 1900, asking the appointment of a commission to open a road "from the termination of Laburnum avenue, in Brookland township, at its intersection with the R. F. & P. Railroad, just west of Acca, also located in said magisterial district." It is stated in the petition that the road has become a necessity to the petitioners and to the public generally, in view of the fact that the Richmond, Fredericksburg & Potomac Railroad has blocked up a private road which had been used by the public generally for a long period of years as a convenient outlet between the travel of Broad street road and the Hermitage and Brook roads and the section of the county lying between the same.

As a result of the litigation following upon the riling of this petition, such proceedings were had that on the 21st day of September, 1901, the county court of Henrico entered an order opening the road, and fixing $125 as the compensation to be paid the railroad company. This order was affirmed by the circuit court, and is now before us for review upon a writ of error to that court.

It satisfactorily appears that the railroad company purchased this land for the object stated, in good faith, and without notice of any rights attaching to it upon the part of the defendants in error.

Two questions are presented for decision, the first, as to the propriety of the condemnation of the railroad property under the circumstances disclosed in this record, and, secondly, as to the adequacy of the compensation awarded.

Section 1095 of the Code of 1887 provides that: "Every railroad hereafter constructed across a county road, street or other highway; and every county road, street, or other highway hereafter constructed across a railroad shall, as far as practicable, pass at surface grade, or pass beneath or above any existing structure at a sufficient depression or elevation, as the case may be, with easy grades, so as to admit of safe and speedy travel over each."

Section 1096: "At every existing crossing such as is mentioned in the preceding section, the grade of the work last constructed, to the full width of the railroad land, shall be made sufficiently smooth and level to admit of safe and speedy travel over such crossing. Where such improvement is to be made in a railroad, it shall be made by the corporation, company, or person operating the same. Where it is to be made in a county road, street, or other highway, it shall be made by the authorities having the control of such county road, street, or other highway and charged with the duty of keeping the same in order."

Acting under the authority conferred by these sections, the county authorities of Henrico seek to construct a public thoroughfare across the land of the railroad company, purchased for and devoted to the uses of a railroad yard, through which numerous trains engaged in freight and passenger traffic are passing, and in which engines are to be constantly employed in shifting cars and in making up trains. Under such conditions it would be well-nigh impossible to construct a crossing at surface grade so as to admit of safe and speedy travel, and it was therefore urged with much force that this consideration alone should defeat the petition for opening the road, as being inconsistent with proper regard for the safety of the traveling public, whether upon the proposed highway or along the railroad tracks.

We shall not, however, rest the decision of the case upon that point. We do not question the power of the state, in the exercise of its right of eminent domain, to condemn land already condemned and appropriated to a public use. The general statute which we have quoted is ample authority for crossing a railway with a public highway, or a public highway with a railway, the safety of the public being carefully protected. But the better opinion seems to be that a general power of condemnation, such as is found in sections 1095 and 1096 of the Code of 1887, which authorizes the crossing of the tracks of a railway company by a highway, or of a highway by the tracks of a railway company, is insufficient to authorize the condemnation of property purchased and used by a railroad company for depots, stations, and railroad yards. The power to condemn any and all such property is recognized, but the authorities seem uniformly to hold that it must be exercised in obedience to a statute which specifically authorizes its condemnation, and that general language, such as is used in the sections we have quoted, is insufficient to...