Yates v. Town of West Grafton.
| Decision Date | 07 March 1891 |
| Citation | 34 W.Va. 783 |
| Court | West Virginia Supreme Court |
| Parties | Yates v. Town of West Grafton. |
Where a county-road has been included within the limits of an incorporated town, and the municipal authorities of said town have assumed control of such road, they may, under their general powers conferred by statute with reference to streets, alleys etc., authorize a railroad company to use a portion of said road for the purpose of constructing its railway along the same, in accordance with the statute which provides for such construction.
Alleys Constitutional Law.
Such transfer of the use of a portion of such road tp a railroad company for the purpose of constructing its railroad thereon in the manner prescribed by statute is not a taking of the property without the consent of the owuier of the fee, as is contemplated by Article III, § 9, of the constitution.
The owner of lots and lands adjoining said road, along which such railroad is constructed, whether they own the fee in the ground occupied by the road or not, can not enjoin the railroad company from constructing its railroad along the road in the manner required by the statute, unless the injury therefrom witl entirely destroy the value of his property, and thereby be equivalent to a taking of it by said railroad company.
When an injunction is wholly dissolved, the bill will be dismissed, unless a sufficient cause be shown against such dismission.
II. M. Dent for appellant, cited 33 W. Va 1; 23 W. Va 406; 32 W. Va. 9.
II. Holt and J. A. Hutchinson for appellees, cited Code, c. 47, s. 28; 102 la. 397; 32 W. Va. 6; 59 Am. Rep. 795; Bridge v. Summers, 13 W. Va.; 44 Am. Dec. 597, 598; 23 W. Va. 407; 33 W. Va. 1.
On the 6th day of July, 1889, Thornburg B. Yates filed a bill in the Circuit Court of Taylor county against the town of West Grafton and others, in which he alleged that in 1870 the County Court of Taylor county established a county road over and through lands belonging to him and the defendant Jed. W. Yates, for public use and convenience, within the now corporate limits of said town, from a point near the north-western corner of the fair ground to the Webster road, at or near the National Cemetery, which road was alleged to be shown on a plat exhibited therewith. designating the portion of said road from the point, A, to the point, B, as the part expressly made the subject of reference and controversy in the bill; that said County Court immediately took possession of said road and occupied the same until the year 1874, when the town of West Grafton was incorporated, and said road, then falling within the corporate limits of said town, came under the jurisdiction of the common council of said town, who continued to bold, work, occupy and use the same as a public road until the matters therein complained of occurred; that in the year 1886 the lands through which said road passed were partitioned between the plaintiff and the defendant Jed. W. Yates, and plaintiff was assigned the land on one side of the road, and defendant Jed. W. Yates the land on the other side of the road; but said road was not taken into consideration in said partition, but was left undisturbed for the use of the public. A copy of the decree of partition and the plat showing said road was exhibited with said bill.
He also alleged that he was still the owner in fee, subject to public uses, of the undivided half of said road, and that in case of the abandonment thereof by the public the same would revert to him; that said road is an absolute and indispensable necessity for him to use in going to and from the residue of his lands, as showui on said plat as tracts jSTos. TT and C, and that the closing of said road will cut off his communication with said lands, and greatly impair, if not entirely destroy, their market value; that wdien said road was established, which was during plaintiff's minority, he claimed no damages for the land taken for said road because of its peculiar benefit to his other lands, but that, notwithstanding the premises, the plaintiff charged, the common council of the said town of West Grafton against the public interests, of wdiich it is the guardian, and to the destruction and damage of plaintiff's private rights and property conceived the unlawful purpose of abandoning said road, and allowing the same to be wholly obstructed and closed up by the defendant railroad company for its own private purposes, and actually entered into a contract with said company to abandon said road to said company's private uses in consideration of the payment by said company to said town of the sum of two hundred and fifty dollars. A copy of this order of the common council was exhibited with said bill.
The plaintiff further alleged that, if said town authorities were permitted to carry out their said contract with said company, and said company was permitted to obstruct and close up said road by virtue of said contract, the plaintiff would be irreparably injured and damaged thereby, and his reversionary interest in said road would be taken for private purposes without just compensation. He therefore prayed that said town authorities might be enjoined and restrained from carrying out said contract with said company, and that said company might be enjoined and restrained from obstructing said road, and that upon a final hearing said town might be compelled to open and keep open said road for public use; and for general relief.
The defendant the town of West Grafton and several members of its council demurred separately to the plaintiff's bill, in which demurrer the plaintiff joined; and on the 18th day of November, 1889, the court sustained said demurrers, dissolved the injunction which had been awarded therein in accordance with the prayer of the bill, and dismissed the plaintiff's bill, with costs, and from this decree the plaintiff applied for and obtained this appeal.
Did the court below commit an error in sustaining the defendant's demurrer? Our statute (Code, c. 47, s. 28) provides that "the council of such city, town or village shall have power therein to lay off, vacate, close, open, alter, curb, pave and keep in good repair roads, streets" etc., "for the use of the public or any of the citizens thereof." Under this statute the towns in this State, so far as streets, roads, alleys etc. lie within their limits, have full power to open, close, vacate or alter the same. It is alleged in the bill, that after the incorporation of the town of West Grafton, in 1874, said road fell within the corporate limits of said town, and was worked and used by the common council thereof; and the plaintiff bases his claim for relief on the fact, that on the 16th day of April, 1889, the council of said town made the following order, to wit: "That part of what is known as the "Fair Ground Road," (describing the part referred to) "be abandoned to the use of the Baltimore & Ohio Railroad Company for and in consideration of two hundred and fifty dollars to be paid by said Baltimore & Ohio Railroad Company to the corporation of West Grafton."
The plaintiff claims that this order shows, that the council of said town has conceived the unlawful purpose of abandoning said road, allowing the same to be wholly obstructed and closed up by the defendant railroad company for its own private purposes. This allegation, however, is inconsistent with the...
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