West Va. Transp. Co. v. The Volcanic Ore

• Decision Date: 31 July 1872
• Court: West Virginia Supreme Court
• Parties: West Virginia Transportation Company v. The Volcanic Ore and Coal Company.

5 W.Va. 382

West Virginia Transportation Company

v.The Volcanic

Ore and Coal Company.

Supreme Court of Appeals of West Virginia.

July Term, 1872.

J. A company incorporated by the legislature for the purpose of constructing and maintaining a line or lines of tubing, for the purpose of transporting petroleum or other oils through pipes of iron or other materials, to any railroad, navigable stream, &c and to transport from the termini of such pipest petroleum, &c, in tank cars, boats or other receptacles belonging to such company; and where the maximum rates for such transportation is also fixed in the act of incorporation, is held to be a tube highway and an " internal improvement," within the meaning of the 6th section of the XIth article of the constitution, and consequently was such a company as the legislature might create by special act.

2. Being such an " internal improvement" company, it was competent for the legislature to confer upon it the exercise of eminent domain, in acquiring the right of way over lands, and to condemn the same, according to law.

3. It was a sufficient attempt to " agree," in the language of the statute, upon the damages that would accrue to the Vol. 0. & C. Co., by reason of the W Va. Trans. Co. passing over its lands and acquiring a portion thereof, that the latter made offers through its agents, to the agents of the former, at its principal office in the State, the president and directors thereof residing out of the State, to support the motion for the appointment of commissioners according to law. The company was not bound to go out of the State to make an offer of agreement.

4. The facts in the case show that it was proper to have appointed the commissioners.

This was a notice of a motion, filed and docketed in the circuit court of Wood county, on the 15th of December, 1868.

The notice filed by the Transportation Company to the Oil and Coal Company, was that the former would require the right of way on and sixty feet square of grounds belong* ing to the latter, for a pumping station; and that having been unable to agree with the Oil and Coal Company on terms of purchase of right of way on its lands, and also the fee simple of the sixty feet square, the former company would apply to the circuit court of Wood county for the appointment of five disinterested freeholders, for the purpose of ascertaining a just compensation for the right of way and the sixty feet square in fee simple, according to the sixth section of chapter 56 of the Code of Virginia, 1860, and the charters of the Transportation Company.

On the 24th of December, 1868, the circuit court denied the motion and gave defendant costs.

The facts were certified as duly proven, in a bill of exceptions taken by plaintiff, as follows:

"First. That said plaintiff is a corporation organized and incorporated under and by virtue of two several acts of the legislature of the State of West Virginia, one thereof entitled "An act to incorporate the West Virginia Transportation Company," passed February 26th, 1867 (see chapter 95 of the acts of 1867), and the other thereof, entitled "An act to amend the charter of the West Virginia Transportation Company," passed February 26th, 1868 (see chapter 67 of the acts of 1868)

"Second. That the capital stock of said plaintiff has been subscribed and two-thirds of the same paid in as required by the third section of the act of 26th February, 1868, last mentioned.

" Third. That the defendant is a corporation formed under the act of the legislature of the State of West Virginia, passed October 26th, 1863, entitled "An act providing for the formation of corporations and regulating the same" (see chapter 83 of the acts of 1863); that said defendant is the owner of lands in fee simple in Wood county, State of West Virginia, as described in the map and specifications annexed to the notice upon which this motion is founded, and that the principal office or place of business of said defendant is upon the lands thereof at Volcano, Wood county aforesaid.

(For certificate of incorporation of said defendant, dated November 30th, 1864, offered in evidence on the trial of this motion, see acts of the legislature of the State of West Virginia for the year 1865, page 113.)

" Fourth. That the plaintiff, at a meeting of its president and board of directors held on the 24th day of June, 1868, duly passed and enacted a resolution, authorizing one James McArthur to enter upon lands, examine same, and survey and lay out such as might seem to him fit for the purposes of the plaintiff, pursuant to the fourth section of chapter 56 of the Code of Virginia, edition of I860.; and in pursuance of said resolution said James McArthur did enter upon the lands aforesaid of defendant, examine same, make surveys thereof, and lay out a proposed line for a pipe or tubing thereon and branch pipes, for the purpose of transporting petroleum or other oils and fix the location for a pumping station thereon, as indicated upon, the map annexed to the notice aforesaid.

"Fifth. That the plaintiff, at a meeting of its president and board of directors, held September 18th, 1868, duly passed and enacted a resolution, authorizing; said James Mc Arthur to offer and tender unto said defendant the sum of fifty dollars for the right of way over its lands by said plaintiff for the purpose of laying a pipe or pipes thereon, as provided by the charter of said plaintiff.

"Sixth. That the plaintiff, at a meeting of its president and, board of directors, held on the 23d day of November, 1868, duly passed and enacted a resolution authorizing one Philip L. Wilson to offer and tender to the said defendant the sum of one hundred dollars for the right of way over its lands and the fee simple of sixty feet square thereof, for the purpose of laying a pipe or pipes thereon and building a pumping station thereon, as provided by the charter of said plaintiff.

"Seventh. That on the 26th day of September, 1868, one William C. Stiles, Jr., was the president of said defendant, and that both he and the parties composing the board of directors of said defendant, resided in the city of Philadelphia, State of Pennsylvania, and that at the time aforesaid, one William R. Sterling was the general agent and superintendent of said defendant and a stockholder therein, residing in Wood county, West Virginia; and that said Stiles and Sterling continued to be such president and agent, respectively, until October 1st, 1868, and that said Sterling, as such agent, had no authority to make a deed or conveyance to said plaintiff of the right of way required pursuant to the resolution of said plaintiff aforesaid, passed September 18th, 1868.

" Eighth, That on the 1st day of October, 1868, said William C. Stiles, Jr., ceased to be the president of said defendant, and one R. H. Gratz became the president thereof and ever since has been said president; that both said Gratz and the board of directors of said defendant elected with him, then resided and ever since have resided in the city of Philadelphia aforesaid, and that on said 1st day of October, 1868, said William R. Sterling ceased to be the general agent and superintendent of said defendant, and said William C. Stiles, Jr., was appointed in his place and stead, and removed to this State for that purpose, and ever since has continued to be said general agent and superintendent of defendant, and that said Stiles, as such agent, had no authority to make such a deed to the plaintiff of the right of way and fee simple required pursuant to the resolutions of the plaintiff aforesaid, passed September 18th, 1868, and November 23d, 1868, respectively, and that at no time since the passage of the resolutions, aforesaid has the defendant had any agent in the State of West Virginia, authorized to make or execute such deed or transfer, and that all official and solemn acts of said defendant emanate from the board of directors thereof, who hold their meetings in the city of Philadelphia aforesaid.

"Ninth. That the right of way through and over and fee simple in sixty feet square...