Salt Company v. Brown.

• Decision Date: 25 February 1874
• Citation: 7 W.Va. 191
• Court: West Virginia Supreme Court
• Parties: Salt Company v. Brown.

7 W.Va. 191

Salt Company

v.Brown.

Supreme Court of Appeals of West Virginia.

February 25, 1874.

An incorporated company, being the owner of coal lands, desires to obtain a subterranean right of way through or under the lands of an-_ other person, for the purpose of mining, and removing its own coal and applies to court for the benefit of the forty-fourth and forty-fifth sections of chapter forty-three of the Code.

The report of the commissioners and the evidence in the case, show that the company is the owner of some thirty acres of coal land, from which the coal could not be mined and transported without going through the land of the defendants; that the company use said coal for the purpose of manufacturing salt at their furnaces, and to sell to the people living in and about the town of Hartford City; that the people living in and about said town could obtain coal, also, from other sources and that the public would not use the subterranean way set out and described in the commissioners' report, through the land of the company, but the company only. Held:

That the report and evidence do not show that the purpose for which the property is to be taken is of such public utility as that said report should be confirmed by the court, under the forty-fifth section of said forty-third chapter of the Code

*The following are the sections referred to in the syllabus and opinion of the Court:

Right of way, etc., to timber and mineral lands.

"44. Any person owning land having timber upon it or containing coal, ore, or other minerals, who desires to obtain a subterranean or surface right of way, by railroad or otherwise, under, through, or over land belonging to another, or over any railroad, canal, state or county road, for the purpose of mining for such minerals, or conveying such timber or minerals to market, or for the purpose of draining any coal or mineral lands under, through, or over lands belonging to another, or who desires to obtain land on or near a railroad, or navigable stream, or public road, for a place of deposit, sale, and shipment of such timber or minerals, may make application therefor, pursuant to the forty-sec- This was an appeal from the judgment of the circuit "court of Mason county, rendered on the 28th day of May, 1872, in a certain suit therein pending, wherein the Valley City Salt Company was plaintiff and Major Brown, Isaac Green and Mahala his wife, Joseph Hereford and Susannah his wife, Lydia Pumphrey, Virginia Pumphrey, Ella Pumphrey, Alice C. Pumphrey,--Ross and Cassandia his wife, Bazelel J. Pumphrey and Ann his wife, George W. Pumphrey in his own right and as, executor of Nimrod Pumphrey and as trustee of Adaline Agnew, and Jane, wife of said George W. Pumphrey, Perry C. Purnell and Mary Ellen his wife, Daniel Polsley as executor of Nimrod Pumphrey and as trustee of Adaline Agnew, and Adaline Agnew, were defendants. The appeal was taken by Major Brown, one of the defendants.

The Hon. James W. Hoge, judge of the circuit court of said county, presided at the trial below.

The facts in the case, together with the constitutional provisions referred to, are sufficiently set forth in the opinion of Paull, Judge.

ond chapter, to the circuit court of the county, and the proceedings thereon had shall conform to the said chapter."

"45. The report of the commissioners appointed pursuant to the said forty-second chapter to ascertain the just compensation to be paid for the property to be taken or injured for the purpose mentioned in the peeceding section shall not be confirmed and ordered to be recorded by the court, unless from such report and the evidence in the case the court is of the opinion that the purpose for which the property is to be taken is of public utility, nor then, if it appear that the mansion house of any person, or the yard, garden or orchard pertaining thereto, or any mill, warehouse, factory, store or shop, railroad, canal, state or county road will be materially injured; and upon payment of the compensation so ascertained, within the time and the manner prescribed by the eighteenth section of the said chapter, a right of way only shall be vested in the applicant, not to exceed fifty feet wide in any case, except as to the land condemned for such place of deposit, sale and shipment (which shall in no case exceed one acre), as to which the title shall be absolutely vested in the applicant upon such payment. Whenthe right is so vested in the applicant to cross any railroad, canal, state, county, or other road, h« Fhall at his own expense, make and arrangethe said crossing so as not to interrupt, or in any wise interfere with, the free use of such railroad, canal, state, conniy, or other road.

Edward B. Knight and William H. Tomlinson, for the appellant.

J. W. English, for the appellee. Paull, Judge:

The Valley City Salt Company, the appellee and plaintiff below in this proceeding, is a corporation, organized under the laws of this State, for the purpose of digging or boring for salt and other minerals, and manufacturing the same; and also for mining coal and marketing the same; and for selling goods, having its principal office or place of business at Hartford City, in Mason county, West Virginia. The said company being the owner of a certain tract of land, containing thirty acres, and desiring to obtain access thereto by a subterranean right of way, by railroad, under a portion of an intervening tract, sought the benefit of the forty-fourth and forty-fifth sections of chapter forty-three of the Code of West Virginia. A petition was addressed to the circuit court of Mason county, setting forth the fact of ownership, and asking that commissioners might be appointed to ascertain what would be a just compensation to the owners of the land for what was sought to be taken in accordance with the provisions of law. The petition recites that the said right of way was "sought to be established by said company in order that it may mine and remove the coal from said tract of land, marked D., for the purpose of marketing the same, and of supplying the salt furnace of said company with coal, and for draining the rooms and entries which may be made in said lot D." To this petition Major Brown demurred; commissioners were appointed, and made their report, to which the defendant Brown filed exceptions; but the same were overruled by the court, and the report directed to be recorded on the chancery side of the court, the judge being satisfied that the purpose for which the property, in the petition mentioned, is to be taken, is of public util- ity; and it not appearing that the mansion house of any rperson, or the yard, garden or orchard pertaining thereto, or any mill, warehouse, factory, store, or shop, railroad, canal, State or county road will be materially injured by the taking of said property for said subterranean right of way.

Two of the exceptions, (the first and fifth) made to the report present the chief question raised by these proceedings for the consideration of the court, to-wit: Whether the applicants, the appellees here, are justified in invoking the right of eminent domain, residing in the State, for the accomplishment of their object. And to this question our attention will now be directed. The former Constitution of this State under which this cause originated, provided, as probably do the Constitutions of all the States of this Union, in article two section six? that "private property shall not be taken for public use without just compensation And that "no person, in time of peace, shall be deprived of life, liberty or property without due process of law." These provisions have been invoked by the defendant for his protection or the...