The B. & O. Railroad Co. v. The P. W. & Ky.Railroad Co.

Decision Date07 May 1881
Citation17 W.Va. 812
CourtWest Virginia Supreme Court
PartiesThe B. & O. Railroad Co. v. The P. W. & Ky.Railroad Co.

1. The court in condemnation cases has under the statute jurisdiction of the subject-matter and parties; and its judgments, unless reversed in some appellate proceeding, would therefore be conclusive upon the parties.

2. Independent of statutory proceedings a judgment of a court of competent jurisdiction in condemnation proceedings is as conclusive upon the parties thereto, as any other judgment.

8. Before the court can enter judgment upon an application made to appropriate land to public use, the owner of the land must have notice of such application; but at whatever stage of the proceedings the owner of the land is notified to appear, after such notice he has the right to contest the appropriation of his land to the petitioner's use.

4. Where a statute authorizes a legal proceeding against any one and does not expressly provide for notice to be given, it is implied, that an opportunity shall be oftered him to appear in defence of his rights, unless the contrary clearly appears.

5. In legal proceedings, where actual service cannot be had on the defendant, constructive service, if authorized by statute, will be regarded as "due process of law."

6. When the use for which private property is appropriated is public, and the Legislature has acted upon the question, the expediency or necessity of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an act of the Legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested.

7. But when the sovereign power attaches conditions to the exercise of the right of eminent domain, the enquiry, whether the conditions have been observed, is a matter for judicial cognizance.

8. Where the statute in condemnation proceedings does not declare, that the judgment shall be final, the judgment of the inferior court must stand as all other judgments, and the aggrieved party is entitled to the benefit of the general law regulating writs of error and supersedeas.

9. While objections to the taking or condemnation of the land may be raised by exceptions to the commissioner's report, yet it is a practice, that should be discouraged.

10. In a condemnation proceeding the first question to be decided is: Shall the land be condemned for the use of the petitioner? And it is the better practice to determine this question, before the commissioners to assess value are appointed.

11. In settling this question, while it may be done without formal pleading, yet there can be no irregularity in raising the objections to the condemnation by proper pleas, as it thus states the defence with legal precision.

12. While a jury on the question of the appropriation of the land is not required by the statute, yet under section 5of ch. 131 of the Code the court was authorized to direct, that the issues be tried by a jury.

13. As the party seeking the appropriation of the land has the affirmative of the issues upon the right to take it, such party is entitled to open and conclude the argument to the"jury on that question.

14. In a condemnation proceeding a juror is not incompetent, because he is a citizen of the county, in which the land is, and liable to the county-levies, though the county may be interested in the suit.

15. It is no obstacle in the way of the appropriation of land owned by one railroad company to the use of another, that merely to prevent its condemnation, the former has put the land to a use not necessary for the proper exercise of its franchise.

10. In a condemnation proceeding the jury or court may find, that a portion of the land sought to be condemned may be taken, and the residue may not.

17. Property belonging to a railroad company and not in actual use necessary to the proper exercise of the franchise thereof may b« taken for the purposes of another railroad under the general railroad law of the State.

18. An express legislative enactment is generally required, in order tc take such property in use by a railroad company, except where the proposed appropriation would not destroy, or greatly injure, the franohise of the company, or render it difficult to prosecute the object thereof.

19. Private property can only be taken for a public use, and no more of such property can be taken than is necessary for such use, which must be determined, when proper, from the statute on the subject and the facts appearing in the case.

20. Upon a motion for a new trial in a condemnation case, as in any other case, evidence, that is not relevant to any issue before the jury, will not be considered by the court.

21. In a condemnation proceeding, unless the owner of the land, who is before the court, in some form denies, that the land sought to be condemned is necessary for the use of the petitioner, he will bo deemed in the appellate court to have waived any such objection to the condemnation.

22. A small portion of the buttress of a bridge, belonging to one railroad company and not necessary to the support of the bridge and to the exercise of the franchise of the company, may be taken for the use of another railroad company.

23. Where a State Constitution provides, that private property shall not be taken for public use without just compensation, the damage to the residue of the tract, where a part is taken, is an element of damage to be considered by the commissioners or jury, as the case may be.

24. The facts, upon which a petitioner bases his right to the removal of a case from a state to a federal court, must be made to appear to the satisfaction of the Court, before the order of removal can be made.

25. The petition becomes a part of the record and should state facts, which taken in connection with such as already appear, entitle the petitioner to a removal of the case.

26. With the question of the appropriation of the land sought to be taken the United States government, a separate sovereignty, unless it is the party seeking the condemnation, has nothing to do.

27-A foreign corporation cannot in the courts of the United States condemn the land of the citizen of a State for the use of such corporation, and if the Federal courts have not original jurisdiction for such purposes, a proceeding of that kind instituted in a State court can not be removed to the Federal courts, be cause the Federal courts can under no circumstances have jurisdiction of such a case.

28. A railroad corporation may have an existence in more than one State, if chartered or licensed to build its road and do business in more than one.

29. The Baltimore and Ohio Railroad Company is a domestic corporation in the state of West Virginia, and as such liable to be sued here.

30. When sued in the courts of this State by a citizen thereof, such suit cannot be removed into the circuit court of theUnited States, as that court has no jurisdiction of such a case.

31. Whether a repealing act shall have the effect to arrest proceedings in pending cases depends upon the intent of the Legislature.

32. That intent must be gathered from the action of the Legislature itself, but not necessarily from the repealing act alone, but if it can be gathered from any act upon the same subject passed by the Legislature at the same session, that it was the legislative intent, that pending actions or proceedings should be saved, it is sufficient to effect that purpose.

Writ of error and supersedeas to a judgment of the circuit court of the county of Ohio, rendered on the 24th day of April, 1880, in an action in said court then pending, upon writ of error to the judgment of the county court, wherein The Pittsburg, Wheeling & Kentucky Railroad Company was plaintiff, and The Baltimore & Ohio Railroad Company was defendant, allowed on the petition of said defendant.

Hon. Thayer Melvin, judge of the first judicial circuit, rendered the judgment complained of.

Johnson, Judge, furnishes the following statement of the case:

On the first day of September, 1879, the Pittsburg, Wheeling & Kentucky Railroad Co. served a notice on the Baltimore & Ohio Railroad Co., that it would on the 11th day of September, 1879, make application to the county court of Ohio county for the appointment of commissioners to ascertain a just compensation to it, for taking by petitioner for the construction of the extension of petitioner's road certain parcels of land, &c.

The petitioner on the said 11th day of September, 1879, filed its petition in the said county court alleging, that it was the owner "of a line of railroad, from a point near the eastern end of the railroad bridge opposite Steubenville in the State of Ohio along the eastern bank of the Ohio river through the counties of Brooke and Ohio to and into the city of Wheeling; which line of railroad is now completed and is in operation * * *; that by the terms of its charter granted it by the State of West Virginia petitioner was granted the right of extending its line of railroad from the city of Wheeling in the direction of the Kentucky State line, as will more fully appear by reference to an act of the Legislature of West Virginia passed on the 1st day of March, 1869 that petitioner is now constructing and desires to proceed with the construction of its said road as far as the town of Benwood in Marshall county, following along the bank of the Ohio river; that in following its general course it is necessary to build said line of road over lands belonging to the Baltimore & Ohio Railroad Co., which lands lie within the city of Wheeling."

A plat referred to in the petition and made a part thereof describes the lands sought to be taken. The first parcel of land sought to be taken is in the petition described as follows:" A certain piece or parcel of ground lying on the south side of Wheeling creek and in the city of Wheeling,...

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