Wheeling Belmont Bridge Co v. Wheeling Bridge Co

• Decision Date: 02 February 1891
• Citation: 138 U.S. 287,34 L.Ed. 967,11 S.Ct. 301
• Parties: WHEELING & BELMONT BRIDGE CO. v. WHEELING BRIDGE CO
• Court: U.S. Supreme Court

138 U.S. 287

11 S.Ct. 301

34 L.Ed. 967

WHEELING & BELMONT BRIDGE CO. v. WHEELING BRIDGE CO.

February 2, 1891.

[Statement of Case from pages 287-289 intentionally omitted] A. J. Clarke, Henry M. Russell, and Daniel Lamb, for plaintiff in error.

W. P. Hubbard, for defendant in error.

Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.

The defendant in error, the plaintiff below, moves in the alternative to dismiss the appeal on the ground that the judgment recovered is not final, or to affirm the judgment on the ground of the manifest insufficiency of the errors assigned. The essential points of contention in the case related to the necessity of the property for the purpose of the petitioner, and to its necessity to the defendant for the proper exercise of its franchise. The judgment for the condemnation was conclusive upon both particulars. A right to condemn, as held by the supreme court of the state, is to be determined before the appointment of commissioners to estimate the amount of compensation to be made. Baltimore & O. R. Co. v. Pittsburg W. & Ky. R. Co., 17 W. Va. 812. If the judgment had been different, all further proceedings would have been ended. Being for the condemnation, the estimate of the compensation, which was to follow, was to be made by commissioners, to be appointed, and might therefore be treated as being a distinct proceeding. The judgment appears to have been considered by that court as so far final as to justify an appeal from it; and if the supreme court of a state holds a judgment of an inferior court of the state to be final, we can hardly consider it in any other light, in exercising our appellate jurisdiction. The motion to dismiss must, therefore, be denied. But upon the motion to affirm, other considerations arise upon the fifth, sixth, and seventh special pleas, which were held insufficient, and rejected. The fifth special plea sets forth, in substance, that the defendant was organized under a charter from the state of Virginia to erect a bridge across the Ohio river at or near the town of Wheeling; that in pursuance of the charter it erected, and has for many years maintained for public use in consideration of tolls lawfully exacted, a wire suspension bridge extending from the eastern shore of the river at Tenth street in the city f W heeling to the eastern shore of Zane's or Wheeling island; that it was empowered by the legislature to purchase acquire, and hold all ferry rights and privileges between Zane's island and the main Virginia shore at the city of Wheeling; that in the year 1847 there was, and for many years had been, between those points, a ferry maintained and owned by certain parties named, together with the rights and privileges by law incident thereto; that in September, 1847, it acquired by purchase from them the said ferry and the rights and privileges thereof, and has since owned and enjoyed the same; that its present toll-bridge was erected and has been maintained substantially in the location of the ferry, and by the use of the bridge for the public it has kept in full force and vigor the rights and privileges appertaining to the ferry. The plea also sets forth that at the time when the...