Wellsburg & S. L. R. Co v. Panhandle Traction Co

Decision Date12 September 1904
Citation56 W.Va. 18,48 S.E. 746
CourtWest Virginia Supreme Court
PartiesWELLSBURG & S. L. R. CO. v. PANHANDLE TRACTION CO. et al.

48 S.E. 746
56 W.Va. 18

WELLSBURG & S. L. R. CO.
v.
PANHANDLE TRACTION CO. et al.

Supreme Court of Appeals of West Virginia.

Sept 12, 1904.


EMINENT DOMAIN—RAILROADS—CROSSING other ROAD — JURISDICTION — CHARACTER of CROSSING—STATUTES—CONSTRUCTION — BILL —MULTIFARIOUSNESS —PLEADING—COSTS.

1. The acquisition of a crossing by one railroad over another involves a taking of private property for public use.

2. Section 11 of chapter 52 of the Code of 1899 does not confer upon courts of equity ju risdiction to condemn the property of one railroad, turnpike, or canal company for the purpose of a crossing by another railroad, turnpike, or canal company.

3. By said section such courts are empowered to determine the exact places at which, and the manner in which, such crossings may be made, when the parties are unable to agree; but the right to cross must be obtained by proper proceedings under chapter 42 of said Code, when it cannot be secured by consent and agreement of parties.

4. The place and character of the crossing to be decreed, when the parties fail to agree, are determined by the situation of the parties, the public interests, the topography of the place, the connections to be made, the expense of making the crossing, and all the material facts and circumstances affecting the public and the rights of the parties immediately concerned, and not upon the choice and will of the parties desiring it. Hence the court may decree a crossing other than the one described in the bill.

5. Railroad crossings at grade are neither prohibited nor discriminated against by the statute. On the contrary, they are expressly authorized, and, when the parties fail to agree, the court may order such crossing to be made, as, under all the circumstances, is fair, just, and reasonable, viewed from the standpoint of the parties interested, and promotive of the public welfare.

6. The clause in section 11 of chapter 52 of the Code reading as follows. "Provided its work be so constructed as not to impede the passage or transportation of persons or property along the same, " neither contemplates nor prohibits such impediments as are merely incidental to a properly constructed crossing at grade.

7. Wherever a crossing is necessary in the construction of a railroad, the law allows it, and confers the right to obtain it; but this power is to be exercised, in the absence of an agreement by the parties, under such conditions and limitations as to the place and mode of crossing as a court of equity may justly impose, in view of the interests of the parties and the public.

8. In the construction of a statute, its spirit, rather than its letter, is the guiding star, but contradiction and repugnance must be avoided when it is possible to do so. The statute must be construed as a whole, and every word in it made effective, if possible.

9. A clearly expressed intention in one part of a statute does not yield to a doubtful construction of another portion of it; and when the general intention of the Legislature is clear, and the spirit and purpose of the statute are manifest, a mere implication or inference of a contrary particular or special intent, arising out of language of doubtful meaning, must yield to the general intent.

10. Where the language of a statute is ambiguous or the meaning doubtful, the surrounding circumstances, the history of the times, and the defect or mischief which the statute was intended to remedy, may be resorted to in seeking its true meaning and purpose.

11. An undeviating course of legislation in a certain direction through a long period of time, in an effort to systematize and perfect the law relating to a given subject, strongly emphasizes the express language embodying the final declaration of legislative will.

12. All former statutes on the same subject, whether repealed or unrepealed, may be considered in construing provisions that remain in force.

13. Uniting a purely legal demand with an equitable demand, in a bill seeking the enforcement of the latter, does not render the bill multifarious.

¶13. See Equity, vol. 19, Cent Dig. § 346,

14. In such case the allegations respecting the legal demand may be treated as surplusage and ignored.

[48 S.E. 747]

15. The extent to which facts must be set out in a bill depends upon the nature of the principal facts to be established.. When a general term used has a double meaning, and, standing alone, may import either a mere fact or a conclusion of law, it must be accompanied by a statement of such additional facts as constitute ground for the legal conclusion which the plaintiff undertakes to establish; else the rule that pleadings must be certain to a common intent is violated.

16. Bills filed under section 11 of chapter 52 of the Code of 1899 are governed by the ordinary rules of equity pleading applicable to bills in general, and a bill so filed is sufficient if it so states the plaintiff's case as to inform the defendant of what he is called upon to meet.

17. When, in a suit under section 11 of chapter 52 of the Code of 1899, the court decrees a crossing substantially different from the one demanded of the defendant before the institution of the suit, a decree for costs against the plaintiff is proper.

(Syllabus by the Court.)

Appeal from Circuit Court, Brooke County; H. C. Hervey, Judge.

Bill by the Wellsburg & State Line Railroad Company against the Panhandle Traction Company and others. Decree for plaintiff, and defendants appeal. Affirmed.

Henry M. Russell, for appellants.

J. J. Coniff and John P. Arbenz, for appellee.

POFFENBARGER, P. The Panhandle Traction Company, chartered under the laws of this state as a railroad corporation, and operating an electric railway about 16 miles long between the city of Wheeling, in Ohio county, and the city of Wellsburg, in Brooke county, seeks relief from a decree pronounced against it by the circuit court of the latter county in a suit brought under section 11 of chapter 52 of the Code of 1899 by the Wellsburg & State Line Railroad Company, another railroad corporation of this state, organized for the purpose of constructing and operating a steam railroad, to commence, according to the terms of its certificate of incorporation, "at or near the county of Brooke in said state of West Virginia, and run thence by the most practicable route to a point at or near the Pennsylvania state line, at Duns-ford in the county of Washington, in the state of Pennsylvania, " authorizing a crossing at grade of the said electric railway line by the said steam railroad line on payment of such damages as shall be ascertained by a condemnation proceeding under the provisions of chapter 42 of said Code. If the status of the Wellsburg & State Line Company is such as confers upon it the right to cross the track of another railroad—an inquiry which will be deferred for the present —the relation of the two roads to each other is such as to render a crossing at or near the point designated in the decree proper and highly necessary to effectuate the declared purposes of said corporation. If built as proposed, its line will run—reversing the description in the certificate—from Dunsford, in a westerly course, to the Pittsburg, Wheeling & Kentucky Railroad at the Ohio river, crossing the line of the Panhandle Traction Company in order to make the connection with the Pittsburg, Wheeling & Kentucky Railroad. Without a crossing at some point, the connection cannot be effected, as the Pittsburg, Wheeling & Kentucky Road lies between the Panhandle Traction Company Road and the Ohio river from Wheeling to Wellsburg. Upon a railroad company so situated, the statute confers the right to a crossing, and provides for its enforcement. It says: "If any railroad, turnpike or canal company shall deem it necessary in the construction of their work, or any branch or siding thereof, to cross any other railroad, turnpike, or canal, or any state or county road, at grade or otherwise, it may do so, " etc.; and, further, that, "in case the parties interested fail to agree upon such crossing, * * * the company desiring it may bring its suit in equity, " etc. The defense, based upon grounds not in conflict with these views, is raised in part by a demurrer in writing, specifying four principal causes, three of which deny the sufficiency of the bill, viewed as one, invoking the power of eminent domain to take from the defendant company part of its property, and the remaining one its sufficiency as a bill seeking merely a crossing of one railroad by another. Dealing with the bill from the first point of view, the demurrer says the property asked for cannot be taken, because it is already devoted to a public use from which it cannot be diverted for another similar use of no higher nature than that for which it was originally acquired, because the bill does not aver that the property demanded is unnecessary for the enjoyment and exercise by the defendant of its franchise, and because there is no specific averment that the plaintiff will devote that property to a public use. Viewing the bill as one filed under the statute to obtain a crossing, the lack of such particularity in the description of the proposed crossing as will show how it will affect the defendant company's railway, and failure to show impracticability of crossing otherwise than at grade, are assigned by counsel for the defendant as grounds of demurrer.

A clear understanding of the nature of the right desired by the plaintiff will facilitate the disposition of the questions raised by the demurrer, including the supposed distinction between a bill for the taking of private property for public use and one seeking a mere crossing. That a crossing of the right of way and track of one railroad company by the track of another amounts, at least, to the acquisition of an easement by the latter over property owned by the former, is so manifest as to render discussion or citation of authority to that effect useless. However, it has...

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