Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1891-03-27
THE CITIZEN'SRIGHT
RAILROADS CANNOT PUT TRACKS
WITHIN sIxTYFEET OF HIS HOUSE.
II Less Than That Distance Permission
Must BE Had Of Property Holders
Other Cases Decided.


feet Of mans house without his permis-
sion, and if it has already done so the CON-
pany can be made to pay damages.
| This Is the law OF the State OF Virginia
as laid down yesterday by the Supreme
Court of Appeals.
The case in point was that OF Hodges
against the Seaboard and Roanoke railroad;
Mr. Hodges has n house on Crawford
| street, Portsmouth. in front OF which the
railroad company started to lay track.
An application was made to the Circuit
Court of Portsmouth for an injunction to
restrain the laying of the. rails. which was
refused. A similar petition was made 10
one of the judges OF the Supreme Court
and was granted. The opinion in the case
was prepared by Judge Lacy and was
dissented from by Judges Lewis aud Hich-
ardson.
| DO NOT OWN THE SOIL.
The point decided is that only the right
| OF easement of the streets or privilege or
| using them az thoroughfares belongs 20
| city OF town, and that the title remains
| with the abutting owner. unless regularly
| conveyed. Judge Lacy took the position
| that when the ground was originally dedi-
! Gated for highway the donor had not the
slightest idea that in the course OF time 1t
| would be used by a railway company to the
detriment and annoyance of the adjoining
| property-holder. IL was shown that the
Code in express terms forbids the running
OF track within sixty feet of mans
| house If he objects.
The temporary injunction granted oy
the Supreme Court was perpetuated.
AN OLD LAW.
In dissenting Judge Lewis said the law
upon which the opinion was founded was
| an old one. Since its enactment new one
| had been passed allowing cities and towns
| to grant permission for the running of rail
roads in their streets. To apply the former
law in constituting the latter would be to
| put the Legislature in ridiculous atti-
tude, as there was not street in the State
| of sufficient width to admit of railroad
track being run it so as TO be sixty feet
from the houses on either side.
WHAT THE COURT sAYs.
The following extracts from the opinion
embraces the most important portion oft:
He (Hodges) cites for his protection against
their invasion OF his home section 1912 OF the
Code OF virginia, which provides among other
| things as follows:
" Nor shall a company under any provision OF
this chapter (the 44th, as 10 corporations gene
| rally,) Invade the dwclling-h0use OF any person
or any space within sixty feet thereof without
| the consent OF the owner thereof
IL is admitted that no compensation has been
made 70 the appellant for the Impairment OF his
property incident 20 this proceeding that his
house Is within sixty feet Of tho tracks so LAID
down near him, for they have been laid down be-
tween the 2Sth OF July, when the Circuit Court
refused the Injunction asked for the plaintin,
and the 3lst OF the same month, when IL was
granted by Of tho judges OF this COURT ana mat
this WAS done without his consent and against
his protest as the record shows that when the
injunction was refused on the 2Sth Of July he
gave notice In writing TO tho appellee company
that he would apply to one OF the judges OF this
court for the injunction which the Circuit Court
had refused, as Is provided by law In such case.
But IL Is Insisted that under tho leave granted
by section 1893 OF the Code of Virginia, supra,
| the appellee company was authorized 10 come
upon the said street, and therefore necessarily
within sixty feet, the street IL not wide enough
TO go there without infringing the provision as
to the sixty feet, and that the compensation can
be now paid when properly assessed. mat the
two sections In such case cannot stand together
and the provision as 70 the sixty feet cannot
therefore apply. But this Is very Illogical. 10
might with equal force at least be argued that
the section 1912 did not apply, as 1t could not
consist with section 1893.
But the section 1898 provides for this and by
its terms dominates all of the sections OF
chapter Al OF the Code.
The law is as enacted in section 1912: "Nor
shnll company under any pror'sion Of thfs chap
ter invade the dwelling-house Of any person or
any space within sixty feet thereof"
The learned counsel for the appellant argues
that every section Of chapter Al must bo read
with this proyiso added:
Nor shall n company under any fr0oiston OF
this chapter invade"
What does this mean II 1t docs not mean this
I do not posceive and think this argument is
correct. Whatever is granted In any section OF
this chapter is granted with this Limitation upon
its provisons-tO wit: "but under this section
company shall not invade tho dwelllr g-house OF
any person or n space within sixty foet thereof"
do not see how Il can mean anything else. This
Ia n Ia enn
ter, but gives force and effect TO every provision
In II as IL written.
we have little 10 do with tho wiscom Of the
law in throwing this limo around every domictle
I'm the land That ia a question for tbe Legisla-
ture. But when the power OF the sovereign
State A. placed In the hands OF corporations 10 go
and take private property OF others everywhere
without their consent, IL appears 10 me 10 be a
hlst and salutary check upon the large powers
granted, and a modest reservation made by
the governing power OF the place called the
home.
A Case in which Check Causes Trouble.
Tho County Court OF Gloucester was not sus-
tanned In the case OF Perrin against the Com
monweaith.
The facts in the case are these: One Saturday
evening early in 1890, Mr.. II. c. Tinsley, OF
Gloucester, lost from bis hip-pocket q Irse con-
tanning S100 In cash and several checks. Next
morning Peter Perrin, negro who could neither
read nor writet while, coming along the road
found two papers, What they were he did not
know. He took them 70 another negro and asked
him what they were, but he did not know either
Several weeks afterwards Perrin had hts buggy
repaired at q shop In Mathews county. The
charge was S5. Perrin said be had only ~ and
would pay that on account. The man WHO dld
the work (hls name was ForresD saw paper IN
Perrin's purse and asked him what IL was. Per-
rim replied IL was a check, but that be did not
want to break y, for II he did lie would
spend II all Forrest insisted and told Perrin no
could not get the buggy unless he paid the -.
r~tr ln aef
s10.79, and made his mark on the back OF IL Is
au endorsement, receiving 1913 In change.
There was nothing about the check TO show that
1t belonged 10 Mr.. Tinsley, but Perfln was seh-
fenced 70 two years In the penitentihry.
Judge Fauntleroy, In delivering the opinion,
said there was nothing in the evidence 10 show
that Perrin had Mr.. Tinsleys pocket-book. The
mere fact Of Perrin having property IN MS pos,
way for him TO Identify did not constitute even
q suspicion OF guilt.
The check when positively identified was In
another county, which would involve tno question
Of Jurisdiction and the amount-SlO.79-even II
stolen would only, have been petit larceny.
The verdict OF the court below was reversed.
Judge Richardson dissented.
A Question of Patent.
In the case OF Hooran against Meisel the Cir
cult Court OF the city OF Richmond was reyefsed,
Judge Lewis delivering the opinion and Judges
Lacy and Hinton dissenting. This case was de-
cided on the 29th of January and the opinion
was fully reported In the DISPATCH OF the next
morning. A rehearing was granted, but the
Court after further deliDeration rea1irmed ils
former action.
This, as explained before, is land-patent
case and the property involved Is tract OF
slightly less than four acres OF real estate on
Chelsea Hill 10 which two parties claim right ana
title. Ii appears that In February, 1887, James
II. Holloran obtained a grant for the 8 s4-lOO
acres Of land which had been on the commons
up &c three or four years before that time ana
no one laid claim thereto; that some three OF
four years before the judgment was rendered
the defendants Ia error fenced the lana In ana
we're In possession Of the same at the iine OF the
institution Of this suit, and that Holoran de-
manded Of them possession OF the land prior 10
the institution Of the action OF eiectment; that
the land had not been on the Land-Bo0ks from
1913 TO 1883, when it was put on by holloran;
that by deed dated June 3, 1883, Ihomas H.
McCorklo and wife conveyed 70 Philip Meisel q
parcel OF land adjoining the said land granted TO
the said James Holloran, but that the last-men-
toned deed did not embrace the land granted 10
HoIIoran, but did embrace and convey only
separate and distinct parcel OF land known as
Chelsea, fully described In the deed ana tne plat
thereto annexed and the only ground upon wnich
s..tr al In