Wagner v. Bristol Belt Line Ry. Co

• Decision Date: 10 September 1908
• Citation: 62 S.E. 391,108 Va. 594
• Parties: WAGNER. v. BRISTOL BELT LINE RY. CO. et al.
• Court: Virginia Supreme Court

62 S.E. 391

108 Va. 594

WAGNER.

v.BRISTOL BELT LINE RY. CO. et al.

Supreme Court of Appeals of Virginia.

Sept. 10, 1908.

1. Street Railroads—Location—Power of City Council.

The power conferred by Bristol city charter on the city council to permit street car lines to be built, and to designate the route and grade thereof, is not limited by the present Const. 1902, art. 4, § 58 (Code 1904, p. ccxxii), providing that the Legislature shall not enact any law whereby private property shall be taken or damaged for public uses without just compensation, nor by Code 1904, § 1294i, authorizing the construction of street railroads, and providing that the tracks shall not unnecessarily interfere with the use of the street or public travel over the same, or damage property without compensation, so as to deprive the city council of the right to determine the location of such railroad within a street.

2. Municipal Corporations—Discretion of City Council—Street Railway—Location —Review.

The city council of a city having charter authority to permit street railway lines to be built and to designate the route and grade thereof, the exercise of judgment by the council in directing that a street railway line should be laid east of the center of a street could not be interfered with by the courts, in the absence of a showing of a fraudulent or manifest abuse or oppressive exercise of power.

3. Eminent Domain—Street Railroads—Location in Street—Additional Servitude.

The rule that the location of a street railway line does not impose an additional servitude on the land occupied by the street so as to constitute an invasion of the property rights of abutting owners is not changed by Const. 1902, art. 4, § 58 (Code 1904, p. ccxxii), prohibiting the passage of any law whereby private property shall be taken or damaged for public uses without just compensation.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 305-309.]

4. Municipal Corporations — Streets — Abutting Owners.

Where a city acquires title to the fee of a street by conveyance or condemnation, the abutting owner is presumed to have been compensated for all the servitudes to which the street was liable when the city acquired the land.

5. Street Railroads—Location in Street-Rights of Abutting Property Owner.

A city council, pursuant to charter authority, directed that a street railway company should lay its tracks east of the center of a certain street, on the east side of which complainant owned certain property. The track was to be located six feet from the east curb flush "with the surface of the street, and maintained so as not to unreasonably impede travel or the passage of vehicles. Held, that such location did not impair any of complainant's rights in the street; and this, though a vehicle could not stand between the track and the curb while a car was passing.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 87.]

6. Same.

Where by reason of the location of street railway tracks, east of the center of a street, there was not sufficient room for a vehicle to stand opposite the complainant's property between the track and the curb while a car was passing, complainant was entitled to occupy the street in front of his property for a reasonable time to take away or deliver persons or goods, as against the rights of the street railway company to use the street for passage. 7. Eminent Domain—Damage to Abutting Property.

An abutting property owner is not entitled to damages because the proposed location of a street railway track in the street in front of his property as authorized nearer to his property than the center of the street would make such property less desirable and less comfortable as a residence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 259.]

Appeal from Circuit Court, Washington County.

Suit by R. F. Wagner against the Bristol Belt Line Railway Company and others. From a decree for defendants, complainant appeals. Affirmed.

Roberts & Roberts, for appellant.

A. A. Phlegar, Bullitt & Kelly, J. C. Byars, aud Paul Dulaney, for appellees.

CARDWELL, J. The council of the city of Bristol, Va., pursuant to authority conferred by its charter (Acts 1899-1900, p. 635, c. 611, § 49), granted on June 19, 1907, to the Bristol Belt Line Railway Company a franchise to build, equip, and operate a street railway, using electricity, over and along the streets of the city, including Moore street, this franchise providing that the streets occupied by the railway shall be put in as good condition after construction of the tracks as before; that the railway company shall keep in good repair the streets occupied by its track for 3 1/2 feet on each side of the center line thereof, and shall keep the same flush with the street; and that, if the city should thereafter pave or macadamize any of the streets so occupied, the railway company shall in like manner pave and macadamize that portion occupied by its tracks, measuring 3 1/2 feet from the center line thereof on either side. The line of railway was to be constructed under the supervision of the street committee chosen by the council, and the street committee directed the railway company to locate its track in Moore street, on the east side thereof, flush with the surface of the street, and that it be "maintained so as not to unreasonably impede travel or the passage of vehicles." The railway company was proceeding to so construct its track in Moore street as authorized, when R. F. Wagner, who owns three lots abutting on the east line of Moore street, gave a notice to the railway company and the city, requesting and notifying them to place the track of the car line in the middle of Moore street, and stating that the building of the track on the east side of the street would impede his, Wagner's, right of ingress and egress, and would damage his property considerably, further stating that, if Lis request was not granted, he would apply for an injunction to protect his rights.

On the 9th of August, 1907, at a meeting of the council of the city, after a number of the members of the council had viewed that portion of Moore street upon which the railway track was proposed to be laid, a resolution was adopted reciting that it appeared to the satisfaction of the council that the construction of the railway track on the east side of Moore street would be less inconvenient and dangerous to public travel than the construction thereof in the center of the street, approving and ratifying the action of the street committee, and directing the railway company to locate its track accordingly, the east rail thereof to be placed 6 feet from the curb of the sidewalk, and the street between the rails and 1 1/2 feet on each side thereof to be continuously kept in good repair by the railway company so as to permit easy passage thereover. Whereupon Wagner filed his bill in the circuit court of Washington county, and obtained a temporary injunction restraining the railway company from placing its track line on the east side of Moore street, which injunction after a hearing was by decree entered August 16, 1907, dissolved, and from that decree Wagner obtained this appeal.

The section of the charter of the city of Bristol, supra, gives to the council of the city the power "to permit street car lines to be built, and to determine and designate the route and grade thereof."

In the petition for this appeal it is conceded that the city, before the enactment of section 1294i, c. 3, Code 1904, had the power to regulate and control its streets, and that this power was subject to only one limitation —that the city must act in good faith, and that the regulation must be reasonable and not imposed arbitrarily or capriciously. But the contention is made that as the city itself is not building the electric car line in Moore street, but the railway company proposes to do so, the latter derives its power to build and operate the proposed line from the statute just mentioned, and, as that statute provides that "such * * * tracks, etc., * * * shall not, in any wise, unnecessarily obstruct or interfere with the use of the same (street) or public travel over the same, or damage property, without compensation, " therefore the prior rule of law has been modified, and, although the railway company had obtained the required franchise from the city and proposed to build its track line under the supervision of the city authorities, and the city authorities had located the track at the point complained of, under a proper interpretation of the statute, if this car line unnecessarily obstructs or interferes with appellant's use of the street, he has the right to have the same located so as not to do so, since the words in the statute, "shall hot in any wise unnecessarily obstruct or interfere with the use of the same, " refer to the use of the street by the abutting owners and the words, "or public travel over the same, " refer to the use of the street by the public. No allegation of bad faith or arbitrary or capricious conduct appears in the bill of appellant; the allegation he relies on being that the location of the railway is unreasonable and will unnecessarily and unreasonably interfere with his right of ingress and egress. In other words, as said by the learned judge below in his written opinion, made a part of the record, the contention of appellant is that the judgment of the city council was bad in locating the railway line on the side of Moore street.

The power conferred by the charter of the city to permit street car lines to be built and and to determine and designate the route and grade thereof is not dissimilar to that conferred by the general law, and we are unable to appreciate the force of the contention that this power in the city to control and manage its streets is limited by the new Constitution; nor do we assent to the view that the law conferring the power, in so far as street car lines...