Spencer v. Point

• Decision Date: 04 February 1884
• Citation: 23 W.Va. 406
• Court: West Virginia Supreme Court
• Parties: Spencer r. Point Pleasant & Ohio R. R. Co. et als.

23 W.Va. 406

Spencer

v. Point Pleasant & Ohio R. R. Co. et als.

Supreme Court of Appeals of West Virginia.

Submitted January 18, 1884

Decided February 4, 1884.

If a railroad company take the laud of any person without having first paid a just compensation to the owner or having secured it to be paid in the manner prescribed by law, the owner as a matter of right in any such case may enjoin said company from using said land for its purposes till the company have so paid or secured to be paid such just compensation, as by section 9 article III. of our Constitution companies are required to pay or secure to be paid before taking such land; and the observance of this provision of our Constitution can be enforced in no other manner than by the granting of such injunction by a court of chancery.

2. If a railroad company without taking the land damages it by

the construction of its road the owner of s ich land cannot as a matter of right enjoin said company so proceeding with the construction of its road till such damages are ascertained and paid; for section 9 of article III. of our Constitution, while it gives a right in such case to recover of a railroad company such damages in an action at law, does not give a right to such injunction; as it does not require such damages to be paid or secured to be paid before such damages actually arise by the construction of the road.

3. But under peculiar circumstances, as for instance where the prop-

erty is entirely destroyed in value as effectually as if it had actually been taken by the railroad company in constructing its road, such person may obtain an injunction; and upon this principle such an injunction was awarded in Mason v. Harper's Ferry Bridge Company, 17 W. Va. p. 396.

4. If a railroad company with the consent of a town-council builds

its road through a street of a town, the fee of the ground, on which the street is located being in the adjoining owners of lots, the railroad company does not take the property of such lotowners, but only an easement from such town-council, a simple right of way so long as the council has an easement in such ground to use it as a street.

5. Such adjoining lot-owners have therefore r o right as of course,

whether they own the fee in the ground covered by such street or not, to obtain an injunction enjoining such railroad from occupying and using such road, till the damages done to such lot-owners is ascertained and paid or secured to be paid. Such injunction can be obtained only under peculiar circumstances.

6. Hut such lot-owners, whether they own such fee in the street or not, may by an action at law recover of such railroad company such damages as they might have recovered in a common-law suit, had the railroad company built its road in said street without proper authority; for while such railroad company has built its road by proper authority conferred directly by the Legislature or by a town-council authorized so to do by the Legislature, it cannot be regarded as committing a nuisance in so build- ing its road and using it in a careful and proper manner. Yet under section 9 of article III. of our Constitution said railroad company is liable for the permanent damages it inflicts on such adjoining lots in the same manner as if it had built its road without such proper authority; but after it has been once sued for such damages it is not liable to be sued for the nuisances, which necessarily.result from the running of its cars through such street, for in so doing it is only exercising its rights and is not committing a nuisance.

The opinion of the Court contains a sufficient statement of the facts of the case.

George F. Couch, and C. H. Lamison for appellants,

Simpson Sc Hubbard, C, E. Hogy and Tomlinson, & Polsleg for appellee.

Green, Judge:

The proper determination of the questions involved in this cause will depend largely upon the true construction of section 9 of article 3 of our Constitution. See Acts of 1872-73, p. 6. It is as follows: "Private property shall not he taken-or damaged for public use, without just compensation; nor shall the same be taken by any company, incorporated for the purpose of internal improvement, until just compensation shall have been paid or secured to be paid to the owner; and when private property shall be taken or damaged, for public use for the use of such corporations the compensation to the owner shall be ascertained in such manner as may be prescribed by general law: Provided that when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders." This was a substitute for the provision in our previous Constitution of 1861, which was: "Private property shall not be taken for public uses without just compensation." Sec Constitution of 1863, article 2 section 6; ("ode of West Virginia p. 21.

There had been some diversity of opinion as to the construction of this provision in our old Constitution. A provision similar to it and expressed in very similar language had been incorporated in nearly all the Constitutions of the different States. They were generally taken from a provision in the Constitution of the United States, which was in the same language as this provision in our Constitution of 1863. See concluding clause of article 5 of the amendments to the Constitution of the United States; Code of West Virginia p. 15. This provision contained in our Constitution of 1863, in the Constitution of the United States, and in the Constitutions of nearly all the States has been frequently construed by the courts, but the construction of it has not been entirely uniform.

Kent in his Commentaries, volume 2 p. 399, says: "The Constitution of the United States, and of most of the States of the Union, have imposed a great and valuable check upon the exercise of legislative power by declaring, that private property should not be taken for public use without just compensation. A provision for compensation is a necessary attendant on the due and constitutional exercise of the power of the Legislature to deprive an individual of his property without his consent; and this principle in American constitutional jurisprudence is founded on natural equity, and is laid down by jurists as an acknowledged principle of universal law." In a note to this passage he says:" The better opinion is, that the compensation or offer of it, must precede or be concurrent with the seizure or entry upon private property under the authority of the State. The government is bound in such cases, to provide some tribunal for the assessment of the compensation or indemnity, before1 which each party may meet and discuss their claims on equal terms; and if the government proceed without taking these steps, their officers and agents may and ought to be restrained by injunction. An injunction was granted by the court of chancery in Gardner v. Village of Newbury, and it was also sustained by the supreme court of Louisiana in a like case, 2.Johns. Chy. Rep. 162; Henderson v. Mayor, See., of New Orleans, 5 La. 416. The civil Code of Louisiana article 489 had declared, that there must he the previous indemnity, and so did the civil Code of Napoleon article 445, and the constitutional charter of Louis A' VIII. The provisions of our American Constitutions are essentially the same, though not in the same words precisely, and it would seem to require the same construction. Several of them declare, that private property shall not he taken for public use without full, compensation being made. The settled and fundamental doctrine is, that governments have no right to take private property for public purposes without giving a just compensation', and it seems to be necessarily implied, that indemnity should, in cases which will admit of if, be previously and equitably ascertained, and be ready for reception concurrently in point of time with the actual exercise of the right of eminent domain. See Thompson v. Grand Gulf R. R., 3 How. 240; Lyon v..Jerome, 26 Wend. 407; 12 Serg. k R. 366, 372; 20 Johns. Rep. 745.;" also 2 Kent's Com. side page 339, 340, top page 399, 400 of 8th edition.

These views have been very generally approved by the judicial decisions in the United States, and especially by the decisions binding on this Court as authority. Thus in Tuckahoe Canal Co. v. Tuckahoe Red/road, Co., 11 Leigh 77, 78, Tucker, P., says: "Is it necessary to the validity of the act that compensation shall be provided before the property can betaken? The Constitution provides, that the Legislature shall pass no law whereby private property shall be taken for public uses without just compensation, and although there1 is no express requisition that the act which invades the right shall provide the indemnity, yet after much reflection I incline to the opinion that it should do so. The instances which may occur flagrante bello of impressment and destruction of property, though at first view they may indicate a different construction, yet are rather to be referred to the necessities which war imposes, where the safety of the State is the supreme law, and justice is silenced by the din of arms."

The Court of Appeals of this State has frequently approved of injunctions awarded by circuit courts enjoining the taking of land for public use before the payment of just compensation. See Freshwater v. Pittsburgh, Wheeling and, Kentucky R. R. Co., 6 W. Va. 504; Pierpoint v. Town of Harrisville, 9 W. Va. 218: Boughner v. The Town of Clarksburg, 15 W. Va. 399. But while a corporation will be enjoined from taking private property for public use without having first instituted under the statute-law the proper proceedings for condemning it, yet if this lias been done and a report made by the commissioners, the corporation on paying the amount reported to be such just compensation for the land proposed to be taken, though this report be excepted to by the landowner as not ascertaining fairly what is a just compensation,...