Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-04-16

SUPREME COURT so DECIDES N
EIGHTU-sTREET Tunnel. CASE.
OPINION ON REQUESTS TO CHURCHES.
Ruling on This Point In Norfolk
Case Which May he Far-Rcaching
In Its EGecta-Powers of SUPER
Nisors In Making Contracts.

Yesterday was opinion day I'm the Su-
preme Court Of Appeals Of Virginia. and
six cases were decided. The most i'm
poriant OF the lot. certainly from local
standpoint. was that OF Terry against
the city OF Richmond, involving the tla-
bility Of tho city for damage caused to
! property on north Eighth street by the
| caving in Of the Eighth-street tunnel in
the summer OF 1891.
The history Of the case can be Briefly
told. The Legislature Of Virginia grant
ed charter TO the Richmond and Chesa-
/ peake Railway Company 10 construct and
operate a railroad from the city of Rich
mond to a point on the Chesapeake bay.
near the mouth Of the Potomac river.
and the Council gave the company the
| privilege to enter the city and use its
streets FOR its roadway. and to build and
construct n tunnel for double-track
railway under Eighth street. The com
pany began the construction Of the tun-
mel and aster partly excavating it,,
ceased TO work upon IT, The tunnel not
being properly supported or arched, sub
I sequently gave way in the centre OF the
street, and the superintendent earth
caved in. doing considerable damage 10
the front Of plaintiffs lot and injuring
the two tenement houses thereon belong
ing to her besides doing damage to
many other propertyholders on that
street. The suit was brought by the
owner OF the property to recover from
the city the damages she had sustained.
THE LOWER COURT SUSTAINED.
The case was tried in the Law ana
Equity Court and a verdict was rendered
for the defendant. and the Court Of APP
peals ahrms this judgment. In the opin-
ion. which was prepared by Judge John
w Rely. the court said:
THE railroad company. being created
and chartered by the sovereign power OF
! the State. and authorized to construct
/ and operate a railroad from the city Of
| Richmond. and the Council of the city
being authorized by its charter to permit
/ the railroad company TO enter and use
its streets for its roadway. the legality
Of the action of the Council in granting
/ such permission is beyond question, and
no liability therefor can be maintained.
"Thp right of the Council to determine
and designate the route and grade of any
railroad TO be laid in the city includes the
/ authority TO permit the railroad company
. 10 run under the street as well as upon
( H. The servitude is the same I'm each
/ case As was said in the case Of the
/ City Of Chicago VS.. Rumsey, 81 IL,
! 364. there is no principle upon which the
, right 10 locate a railroad upon street
| as a legitimate use of the street can be
/ sanctioned which viii not also sanction
I the construction of a tunnel i'm street.
| The tunnel does not change the charac-
/ ter of the street or apply II TO a new
/ use The building of the rail-
I road and the construction of the tunnel
was solely the undertaking of the rail-
The permission granted 10 enter and
/ use the streets of the city for a roadway
| conferred no right whatever upon the
/ railroad company 10 take or invade the
property of any citizen without Just com
. pensatiOn or sanctioned any tort IL might
/ commit my more than license to a per-
/ son to engage in some legitimate private
/ business requiring such license would
/ render it liable for "A tort that such per
/ son might commit in the pursuit Of the
/ business he was so licensed to carry on
I number Of authorities are given 10
sustain this view. among them Elliott
on Roads and Streets page 522; Dilen-
back vs.. City Of Nenia. II ohio, st. r..
26l; Burkham, VS.. o. and NJ. Railway
Company 122 Ind 33i. and others.
The effect Of all these authorities Is "a
show that the right of an abutting owner
of property 10 recover for damages sus-
tanned by burden imposed upon him by
| a railroad company under such circum-
stances is against the company. and not
against the city.
HOW TO BE REACHED.
The. opinion, after dealing most ex,
haustivey with the questions incidental
70 this matter, goes on 10 say:
"The bond of indemnity taken by the
city Of Richmond from the Richmond and
Chesapeake Railroad Company did not
| operate to impose upon the city a la
blity which would not have otherwise
! existed. nor have the effect of making II
responsible for any damage done by The
| railroad company where the law would
not have made it liable in the absence OF
suchA bond. The provisions Of the bond
show that the object Of the city I'm re-
/ curing il was to protect itself against
any loss ii might be subjected TO or any
| expense il might have to incur i'm cOnse-
quence Of the failure Of the railroad com
pany 10 comply with the requirements OF
the ordinance granting to il permission
| to construct the tunnel and also TO pro
/ vide indemnity TO any one who might sus.
tain injury 70 his person or property by
/ the negligence or wrongful acts of the
railroad company IN the construction OF
use Of the tunnel. If ne chose to avail
himself of it. Taking the bond did moi
increase the liability OF the city.
"A number of cases decided by this
court i'm which the municipality was held
/ responsible. were cited and relied on tC
! support the claim OF liability of the city
| I'M the case at bar. but they do not sup
| port the contention Of the plaintiff In
| error. The liability in those cases restcC
upon different ground from that which
underlies this case. It's solution depends
| upon the application of a different prin
| ciple. The act of the city. which is the
subject Of the complaint here, was the
/ exercise OF delegated governmental
power, but it. will be found upon eXami
| nation that the liability in each and al
OF the cases referred 10 was based either
| upon a tort committed by the city Itself
through its officers or agents. or upor
the neglect Of the city to perform some
| ministerial and absolute corporate duty
/ such as not giving warning of the dan
gerOus condition Of the entrance 10 It's
! sidewalk from an established walking
wav (Ormc ana Wife VS.. civ of Rich
mond. 70 Virginia. So: or not keeping lis
! sidewalk I'm safe condition Noble anC
Wife vs.. City of Richmond. 81 Graft, 2SO
! or for failing, when eleVatng the grade
| of its street to make provision for IN,
escape of surface water and causing il
TO flow back upon an adjoining lot )Smitf
VS. City Council Of Alexandria. 80 Graft
2OS): or for neglecting 10 repair sewel
(Chalkley vs.. City of Richmond IS Va.
40O: or for infringing. i'm lowering the
grade OF It's street. upon the right Of
the owner Of an adjoining lot TO latera
support for his soil (Stearns VS. City OF
Richmond IS Va, 99O or for allowing
instructions to be in the water adjacent
Z 10 a wharf owned by the city and for
u,boso',,Se II chanqed or was srtitIad ~
change wharfage CITY of Petersburg VS.
Applegarths Administrator. 2S Graft.
32).
EXERCISED a PUBLIC POWER.
"The city Of Richmond. IN licensing thu
! Richmond and Chesapeake Railroad Com
pany. "a corporation created and chartered
by the sovereign power Of the State, L
/ enter and use its streets for it's rOadwa,
I and 10 construct tunnel 10 that end
| having the power under it's charter e
grant such permission. exercised pubic
| or governmental power ana the law eX
| -. ~ from, rncnon ihlllIA for N In iilr,