The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1883-11-02
the TWO euEt1loEs INVOLVED.

THE TWO ouEtIIoss INVOLVED.
The two important questions were: First
Whittier, In this State, the abutting LOT
owner holds the fec to tbs ceatre OF the street.
Sec )nd-Whether the laying OF u railroad
track along 1t, although done under lesislk,
tive aad municipal authority, is q taking oil
private property in the s,rse and meaning Of
Tue constitutional provision which pre-
hibits the tAkisg OF property for public use
without making compensation therefor.
The Codrt first considered a1d reviewed
numerous decisions OF other States, and oil
the Supreme Court OF the Unito1 States Oh
the second question, showing that there was
crest conflict OF authority on this point, and
without expressing any opinion OF 1t, passed
10 the cor Sderation OF the first point.
In regard 10 the tlratquestion II slems that
as general rule. In lncst OF the States such
lot owner does own the fee TO the centre oil
the s.reet, The Court proceeded to inquire
what The law on this subject Is in Virginia
and Wtsj Virgins, and reviewed tie Viz
ginia csses bearing on the point. The tirs'
case considered was that Of Mutchie w.
Mayo, 8 Muniord $685. In which the cour,
G Inpslled the parry ho.dlng the legal title
To public landing and street In tbs Town Of
Manchester TO release It 10 the trustees Of
that town. The effect Of this decision was
that the title to the street was in tina trustees
OF the town, and is wholly irreconciiable with
the theory that 1t Is In the adj icent loi
owner. The next case was that of the Jamel
River & KauawhR Co. VS.. Anderson, i
Leigh 3O7, In which tho court, after stating
the inquiry whether the title 10 q street v a.
in the original proprietor or in the NUM-
cipal corporation, expressed the opinion that
It WIS in the corporation. And to tue same
effect was the opinion OF the court In sktm
vs. Lynch, 1st Robinson h 10l, in which case
the court quoted with approval tins Language
OF the Supreme Court Of the United States In
Cincinnati ys. White, Peters The language e.
OF the court in Norfolk w Chamberlain, ~
Grafton 5Ss, though slmswhat equlyocal,
suggested the same doctrine.
THE TITLE TO TIE STREET.
Ca the other hand. in Balling vs.. PeterL.
burg, 8 Randolph, t03. which was on writ
OF right by the dcyises Of the original
proprietor, for land which had been Original.
" condemned as public road, and was then
q pablo street and wharf Ia Petersburg, the
Court sustained the action, holding, OF eourse,
that the title remained In tbs original nropri.
etor. And tails case was expressly aitl rmed
in Warnick ys. The Mayor, 10 Gtattau. 63i-6.
Again Talbot VS.. r. R, 81, G.attan 6S5, was
al action for damsgss against the Railroad
Company for laying lis track, under proper
authority, on what 1t claimed to be public
street. Toe court went into an elaborate con,
sidaratlon OF the q7eation whether the street
had been dedicated to the public, in order TO
determine whether or not the actien could
lie, an inquiry that would have been u1necac.
gary II It had been supposed that the title was
In the AUDITING lot owner It therefore ap-
peared that no YirRiniG cass had ever recog-
nized the doctrine that the abutting lot owner
holds title TO the center o! the sire t, but that
the decisions wers inconsistent With the idea,
The court then inquired as TO the leg: sa'
tive policy on the question, and showed:
Firs'i that ever since towns were authorised
to open streets By condemnation, they took
the fee in the strest, aud not q mere casa
msnt or servitude. Next tho action Of the
Legislature OF 1896, Csapt. %, which consol'
idaled Aoundsyllle and EI'z!bethtown into
one corporation, the 18Th Section authorizing
The Council In case u street was vacated 10
sell II In fee, the court held that, although
this act could not yett the fee In the GouncIl,
or CORPORATION, yet II manifested the views
OF the Legislature upon The subject. And,
In the third place, Tbs CONT referred TO the
sct Of the Legislature OF 1851, Chap. II, Bee
so, Cause Q, which authorizes Tatl7cGd 10
ley Its track along the streets OF a town, and
witch empowers Il 10 condemn road, high
way, turnpise, &c. but failed to give the
same power to condemn street.
The Gaze OF Railroad vs.. Richmond, 90
Grat.an, D. Of, was then referred to, showing
the yIsy OF the court az 10 the difference be-
tween The onccupation OF the street In q
town, BY railroad, AID road 10 the cour--
try. IN view OF the foregoing decisions, and
the legislative policy OF the s!a's, the court
did not feel authorised 10 say the rule
iipr lot holds the foe 10 the centre OF the
street. wss The Law In this State, and as the
Injunction In this saEs aould only be g'a1ted
on the theory that such waI the law, 1t was
refused,