Watson v. Fairmont
| Decision Date | 18 June 1901 |
| Citation | 49 W.Va. 528 |
| Court | West Virginia Supreme Court |
| Parties | J. Fay Watson v. Fairmont and Suburban Railway Co. et al |
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When the legislative act, incorporating a city, provides that "The council of said city shall have power to grant and regu-late all franchises in, over and under the streets, alleys and public ways of the said city, under such restrictions as shall be provided by ordinance, but no exclusive franchise shall be granted to any individual or corporation," the legislature thereby delegates to the council of such city authority to pass an ordiance, granting to an individual or a corporation the right to construct and operate a street railway in the streets of such city. (p. 535).
Although such franchise is usually conferred upon a private corporation, it may be granted to an individual, and, with the consent of the council having such delegated power over the subject, he may make a valid assignment of the same to a private corporation, organized for the purpose of constructing and operating such street railway, (p. 538).
The holder of such franchise, although privately interested in the enterprise thereby provided for, is nevertheless an agency or instrumentality in the hands of the' public authorities for the accomplishmnet of public purposes and benefits and subject to their control, and private property may lawfully be taken and damaged in the execution of the ordinance, but the constitution and statutes provide that just compensation shall be paid to the owner of the property so taken and damaged, (p. 538).
When the certificate of incorporation of a railway company states that the purpose of the corporation is to construct and operate a railroad, designating certain points as termini of the proposed road, and that it is to run through the city of F., and said company lawfully acquires a franchise to construct and operate a street railway in said city, and, in pursuance of the ordinance, granting the franchise, is proceeding to build its track in one of the streets of said city, the owner of real estate adjoining said street cannot enjoin the company from so doing, whether the charter of the company authorizes it to construct and operate a street railway or not, unless, upon the ordinary principles of equity jurisprudence, he has grounds for equitable relief against the company. If it be true that the corporation is exceeding its corporate powers, that fact is not alone sufficient ground for equitable interference at the suit of a person who is not a member of the company, (p. 540).
Such adjoining lot owner cannot restrain the construction of the railway in the street upon which his property abuts until the damage to his property, resulting from such use of the street, is ascertained and paid or secured, unless the injury to his property is so great as to destroy its value and therefore amounts to a virtual taking of the property for the use of the railway company. Section 9 of Article III of the Constitution provides that compensation shall be paid to the owner of the property for such damages and gives him an action at law therefor, but does not, as in cases where the property is actually taken, require the compensation to be paid or secured before the injury is inflicted; and, having an adequate reemdy at law for the injury, the owner of such lot can have no reief in a court of equity on account thereof, if the legislature has authorized the construction and operation of the railway in such street, (p. 541).
When a person or corporation is authorized by the legislature by an express statute to do an act, or by the council of a city or town to which the power to authorize it has been delegated by a legislative act, such person or corporation cannot be be regarded as committing a nuisance in the execution of such act nor proceeded against merely upon the theory that it is a nuisance, either at law or in equity, (p. 541).
Appeal from Circuit Court, Marion County.
Bill by J. Fay Watson against the Fairmont & Suburban Railway Company and others. Decree for plaintiff, and defendants appeal.
Reversed.
C. Powell, W. S. Meredith and John A. Howard, for appellants.
W. H. Conaway, U. N. Arnett, Jr., and W. W. Arnett, for appellee.
poeeenbarger, Jedge:
J. Fay Watson, the plaintiff below and appellee herein, filed his bill in equity in the circuit court of Marion County, November 30, 1900, to enjoin the appellants, B. K. McMechen and Fairmont and Suburban Railway Company, from constructing and operating a street railway on Locust avenue in the city of Fairmont, under an ordinance passed by the council of said city on the 20th day of June, 1900, granting to said McMcchen, his successors and assigns, the right to construct, equip, maintain and operate such railway on and over all or any of the streets of said city which arc twenty feet or more in width from curb to curb, the tracks to be laid in the middle of the streets as far as practicable. The ordinance recites that it was understood that said McMechen intended to assign all his rights thereunder to a corporation which should construct and operate the railway thereby authorized, and provided that when McMechen should execute a written assignment of such rights to any person or corporation and file a copy thereof with the recorder of the city of Fairmont for record, the person or corporation to whom such assignment should be so made should have such rights and privileges. The agreement to form the corporation, Fairmont and Suburban Railway Company, is dated June 18, 1900, and the certificate of incorporation June 21, 1900. The certificate and power of attorney were presented for record in the clerk's office of the county court of Ohio County, September 3, 1900, the principal office of the company being in said county. McMechen accepted the ordinance June 20, 1900, and executed the assignment to the railway company, September 25, 1900, but it was not filed with the recorder for record until December 4, 1900, after this suit was instituted.
The principal allegations of the bill are that Locust avenue is a narrow street running the entire length of the Fifth ward of said city and is the main or principal street in said ward for traveling and hauling and the only street by which large numbers of residents and property holders in said ward can reach their property; that a considerable portion of it is paved and on each side thereof is a large number of handsome and costly residences and business houses, now occupied; that the plaintiff is the owner in fee of a large acreage of real estate fronting and abutting on the northern side thereof for about one thousand four hundred feet, which real estate has been laid off into town lots, with streets and alleys laid off and graded; that the plaintiff has expended about forty thousand dollars within the past eighteen months in the construction of residences and business houses on said lots; that he and not the city of Fairmont is the owner in fee of the street upon which said property abuts to the center thereof, subject to the public right of way over the same; that, in several places, said street is not more than twelve or fifteen feet wide and if the defendants are permitted to go on and build said railway track it will result in great and irreparable injury and loss to the plaintiff, will greatly lessen the width of the street, will not leave sufficient room for wagons, carriages and vehicles to pass on either side of the track, will unneces-sarily, injuriously and unlawfully obstruct and hinder travel on said street, will materially and wrongfully injure, obstruct and destroy plaintiffs free right of access, ingress, egress and regress to and from his said property, and will deprive him of the free and uninterrupted use and enjoyment of said street as appurtenant to his said property, without having first paid to him any just compensation for the injury or damages; that the defendants, in building said track, will greatly injure, damage and depreciate the value of plaintiff's said real estate, fronting and abutting on said street, without having first ascertained and paid to him the just compensation to which he is entitled under the provisions of the constitution of the State; that the defendants, in pursuance of said ordinance, have unlawfully entered upon said street with a large force of men and have actually commenced to take up and remove the pavement thereon and dig and excavate and grade said street along where the property of the plaintiff fronts thereon, preparatory to the construction, building and laying of said railway track thereon; that the defendants are constructing said road contrary to the terms of the ordinance; that the charter of the city does not confer upon the council power to grant to an individual such franchise as it has attempted so to grant; that McMechen acquired no rights or privileges under said ordinance because the same is void, its passage being an act in excess of the powers of said council; that the ordinance does not prescribe with legal certainty the location of said proposed railway and is for that reason void; and that the railway company acquired no rights in said street by virtue of the assignment executed to it by McMechen.
The prayer is that the defendants be enjoined and restrained from digging up, excavating and grading said street and from building and constructing said street railway track thereon, until the damage to plaintiff's said real estate and property be ascertained and a just compensation paid to plaintiff for the injury and damage resulting to, or that may hereafter result to, said property in consequence of the building, constructing and maintaining said street railway track in said...
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