Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, 1884-02-21
February 2f. 1854.
From the KqRawha Gazettc.
Railroads Ia Streets Of 1Oras.


The Supreme Court of Appeals of West
Virginia sitting here on Monday the 4th
inst, rendered n very importan: decision,
settling the question As to the occupancy of
streets in towns or cities in this State, under
permission of the town authorities. About
0 months ago, four citizens of the town of
Point Pleasant in Mason County in this
State severally sued out injunctions in the
Circuit Court of that County, restraining
the Point Pleasant & Ohio River Bridge
Company from constructing the treStle ap-
proaches to their bridge across the Ohio
River, along 7th street in the town, although
the town council had granted permission to
the Bridge Co. to do so, the plaintiffs alleg-
ing great damage 10 their private lots which
abutted on that street, claiming title in fee
to the street, and that the Bridge Co., was
taking their private property lin the street
for public use, without condcmning the
same and compensating the owners in ad-
vance of occupancy. The Bridge Co. an
swcrcd the bills, and moved to modify the
injunction, so that the work nigh: proceed
offering to give security to pay all damages
that might be awarded to plaintiffs when
they were legally ascertaincd. The Circuit
Court oycrruled the motion. After evil
dencc taken on both sides, the defendants
two months afterwards, moved to dissolve
the injunclions but the Court refuses to
dissolve them. The defendants then took
an appeal in each case to the Supreme
Court of Appeals of the State, and they
were heard together about two weeks ago,
and on Monday last the Supreme Court
rendered its decision through Judge Green.
The opinion is too long for our present is
sue. The following is the gist OF the decis-
ion, in a statement from it, leaving out au
thorities and enlarged discussion
"Our present Constitution, however,
solves this whole difficulty, and enables our
Courts to do full justice to adjoining lot
owners, whether they own the fee lnthe street
0r not, whenever they are damaged by the
construction of steam railroad IN street
by the leave of the town council. Our pre-
sent Constitution provides that, Private
property shall not be taken or damaged for
public use without Just compensation nor
shall the same be taken by any company in
corporated tor the purposes OF internal i'm
provemcnt, until just compensation shall
have been paid or secured to be paid to the
owner; and when private property shall be
taken or damaged for public use, for the use
of said corporations the compensation to the
owner shall be asceriained in such manner
as may be prescribed by general Jaw e; Pro-
yided that when required by either OF the
parties such compensation shall be ascer-
taned by an impartial jury OF twelve free
holders" The obvious construction of this
clause of our Constitution, gives to every
owner of lot adjoining street III town
through which 4 railroad company Is per-
mtted 10 construct n steam railroad COM
pensation for the damage he may sustain by
reason of the building an operating OF
railroad in said street which has been con
structed in it by leave of Il town council
and that he has this right to be compensa-
ted for such damage when ne does not own
the fee in the street as well as when he docs
own such fee The entire damages which
such lot owner suStans by the permanent
injury of his adjoining lot may be recovered
in an action at law, and if the declaration
is framed as it should be, this entire damage
NAV be recovered in one suit, and having
brought such suit he cannot bring another
suit against such railroad for any damages
he NAV sustain unless it results not necessa-
rilv from the running Of the railroad trains,
but from their carclcssHess or other wrong.
For the railroad company having such per-
nit of town council, has Il right to run It's
cars through such u street in a prudent anil
careful manner, and any damage sustained
BY adjoining lot owners when the trains are
run in this manner, has been already paid
to the adjoining land owners when the COM
pany paid them the first judgment.
But while adjoining lot owners have a
right 10 institute such an action al common
law and recover in one suit the entire amount
which their lots have been deprecated in
value by reason of the construction and
operation of such railroad through street
of 4 town rs a general rule unless under p =
culiar circumstances, they have no right TO
have il paid or secured To be paid in advance
ofthe building of the railroad. This it seems
TO me is perfectly obvious from the wording
/ of our constitution Ii expressly provides
/ that when private property is taken the owl =
er must be paid or secured to be paid in ad-
vance. But when private property Is dam
aged but not taken, the owner while de-
clared to be entitled to the damages he STIR
tains. is left BY the Constitution to recover
such damages as all other damages for inju-
ry to property are recovered, that is by a
common law suit And in such cases a
court of equity has no jurisdiction except
under peculiar circumstances. We DO not
pretend to specify those circumstances which
.1L-l-.l -l.ll