Zircle v. Southern Ry. Co

• Citation: 102 Va. 17,45 S.E. 802
• Parties: ZIRCLE. v. SOUTHERN RY. CO.
• Decision Date: 19 November 1903
• Court: Supreme Court of Virginia

45 S.E. 802

102 Va. 17

ZIRCLE.

v.SOUTHERN RY. CO.

Supreme Court of Appeals of Virginia.

Nov. 19, 1903.

EMINENT DOMAIN—BRANCH RAILWAY LINES-PUBLIC PURPOSE—POWER TO CONDEMN—NECESSITY.

1. Under Acts 1897-98, p. 172, c. 168, providing that the directors of a railway company may construct branch roads not exceeding fivemiles each way in length, and under a resolution adopted in general meeting may construct or purchase branch roads not exceeding twenty miles in length, the requirement to construct by resolution has no application where the branch road does.not exceed five miles in length.

2. A railway company may exercise the power of eminent domain in acquiring property necessary for the construction of a branch track to reach a private industrial enterprise, if the track is to be used by the railway company in furtherance of its public business.

v 2.See Eminent Domain, vol. 18, Cent. Dig. 5。66.

3. Railway companies, in the exercise of the power of eminent domain, may decide within certain limitations what and how much land they will condemn for their purposes, and the courts will not undertake to control their discretion in taking property for their use unless there has been a clear abuse of power.

4. The question of the necessity, propriety, or expediency of resorting to the exercise of the power of eminent domain, in the absence of constitutional or statutory provisions to the contrary, is legislative, and not judicial.

Error to Shenandoah County Court.

Condemnation proceeding by the Southern Railway Company against Abram Zircle. From an order of condemnation defendant brings error. Affirmed.

D. O. Dechert, Burwick & Williamson, and J. M. Brenaman, for plaintiff in error.

Downing & Richards and M. L. Walton, for defendant in error.

WHITTLE, J. This is a writ of error to an order of the county court of Shenandoah county condemning 2.3 acres of land, the property of the plaintiff in error, Abram Zircle, for the purposes of the defendant In error, the Southern Railway Company, in constructing a branch road or spur track springing from a point on the Manassas Branch of the Southern Railway, near Forrestville, and extending a distance of two-thirds of a mile, to Manor Mills.

The act under which these proceedings were had provides that: "The president and directors of any company incorporated to construct a railroad or other work of internal improvement may cause to be made in connection therewith, or may purchase branch railroads or lateral works not exceeding five miles each way in length, and under a resolution adopted in general meeting by two-thirds of all the votes of all the stock holders may cause to be made, or may purchase branch railroads or lateral works not exceeding twenty miles in length." Acts 1897-98, p. 172, c. 168.

It is insisted by plaintiff in error that the county court was without jurisdiction in the premises, for the following reasons:

(1) Because it does not appear that the resolution provided for in the foregoing statute was ever adopted by the stockholders, and

(2) Because the Southern Railway Company, after it had determined to construct the branch road or spur track in question, made no attempt to purchase the land in controversy before instituting condemnation pro ceedings, as required by section 1074 of the Code. In respect to these contentions it is sufficient to remark of the first, that the requirement referred to has no application where, as in this case, the branch road or lateral work does not exceed five miles in length; and, of the second, that it is not sustained by the evidence. The controlling question in the case involves the power of the Southern Railway Company to condemn the land in controversy for the purpose indicated. The contention of plaintiff in error in that regard is that the object of the proceeding was to build a spur track to a private enterprise, Manor Mills, whose output the railway company already handled, for the sole benefit and convenience of the owners of that property. In other words, that it was an attempt on the part of the railway company to condemn private property for private use, and was therefore without sanction of law.

While the agreement between the railway company and the mill company justifies the conclusion that the primary object in constructing the spur track was to reach that industry, it also appears that it was for the use of the railway company and third parties (the public, who might choose to patronize the railway company) as well. The circumstance that the mill company agreed, in the first instance, to contribute a certain amount to the cost of constructing the track, does not affect the legal aspect of the case. The contract stipulated that the sum so advanced was to be returned by the railway company, which was to become the absolute owner of the property. So that the transaction in legal effect amounted merely to a loan by the mill company to the railway company.

The authorities practically...