West Virginia Transportation Co. v. Volcanic Oil & Coal Co.

Moore, J. It has been decided time and time again, and is therefore settled by the best authority, that the construction, of railroads, turnpikes, canals, ferries, telegraphs, wharves,, basins, &c.., creating the necessary facilities for intercommunication, constitutes what is generally known by the name of internal improvements, and gives occasion for the exercise of the right of eminent domain. It has been held that railways are but improved highways, and are of such public use as to justify the exercise of eminent domain. (Redfield on Railways, title Eminent Domain, § 2 and notes.) Judge Cooley, in his masterly work, “Constitutional Limitations,” second edition, side page 533, upon authorities cited, thus forcibly writes: “ Every government is expected to make provision for the public ways, and for this purpose it may seize and appropriate lands. And as the wants of traffic and travel require facilities beyond those afforded by the common highway, over which anyone may pass with his own vehicles, the government may establish the higher grade of highways, upon some of which only its own vehicles can be allowed to-run, while others, differently constructed, shall be open to-use by all on payment of toll. The common highway is kept-in repair by assessments of labor and money; the tolls paid! upon turnpikes, or the fares on railways, are the equivalents; to these assessments; and when these improvements are-required by law to be kept open for use by the public impartially, they also may properly be called highways, and the use to which land for their construction is put, be denominated a public use. The government also provides court houses for the administration of justice; buildings for its seminaries of instruction; aqueducts to convey pure and [388] wholesome water into large towns; it builds levees to prevent the country being overflowed by the rising streams; it may cause drains to be constructed to relieve swamps and marshes of their stagnant water : and other measures of general utility, in which the public at large are interested, and which require the appropriation of private property, are also within the powers where they fall within the reasons underlying the cases mentioned.” The charter granted to “ The West Virginia Transportation Company,” by especial enactment of the legislature, shows that the object was “to construct and maintain a line or lines of tubing, for the purpose of transporting petroleum or other oils through pipes of iron or other materials, in the counties of Wirt, Wood, Ritchie and Pleasants, in the State of West Virginia, to any railroad or other roads, or to any navigable stream or streams in or adjoining the counties aforesaid, and to transport from the termini of said pipe or pipes, petroleum or other oils in tank cars, boats or other receptacles belonging to said company,” <fcc. The charter also established the maximum charges the company should make for transportation of oils. I cannot see the propriety of admitting a railway, or canal, or acque-duct to be an “internal improvement,” and declare this tube highway for transportation not to be. It is an “internal improvement,” within contemplation of the constitution, art. XI. § 5, which gave the legislature power to create the company by special acts. The charter also empowers the company “to enter and condemn lands, and to acquire rights of way in the counties aforesaid, for the purposes of said company, in the manner provided in the fifty-sixth chapter of the Code of Virginia, second edition; and in such cases where it may be deemed advisable by said coinpanjq shall, at its option, have the power to acquire a sufficient right of way only for the purpose of its said improvement, over any such lands, instead of the fee simple thereof.” That the legislature had the power to confer on the company the right to enter and condemn lands, is not an open question. Private property can only be taken for public uses pursuant to law; it must be authorized by legislative [389] enactment, and a strict compliance must be bad with all the provisions of the law before a party can -be deprived of his property. In this case, the company has proceeded to condemn the land in the manner provided in the fifty-sixth chapter of the Code of 1860, as directed by its charter. By the sixth section of said chapter it is declared, “If the president and directors of a company incorporated for a work of internal improvement,” “cannot agree on terms of purchase with those entitled to lands wanted for the purposes of the company,” “five disinterested freeholders shall be appointed by the court of the county or corporation in which such land or the greater part thereof shall lie (any three of whom may act), for the purpose of ascertaining a just compensation for such land.” (Since the county court was abolished.the circuit court has jurisdiction in such applications.) The com-panj’- has proceeded regularly under the statute, but the appellee insists that the company had no right to proceed to the appointment of commissioners, as it did not appear that the appellant and appellee could not agree on terms of purchase of the lands by the appellant. It appears that .the appellee is a corporation organized under the general corporation laws of the State, passed in 1863, having its principal office or place of business in Wood county, but its president and board of directors resided without the State. The appellant, by resolutions, determined on sums extending to three hundred dollars as the amount it was willing to give for the land, and appointed agents to make the offers to the appellee; the agents did .make the offers through the agents of the appellee, at its principal office of business in this State; the money was then and there refused. It seems to me the attempt to agree was sufficiently made, and that it was not incumbent on the appellant to have made further effort, as it was not necessary to go to the president and directors out of the State for that purpose, when there was an agent at the office of business in the State. The facts as stated in the bills of exception certainly indicate that the appellant made an honest effort to bring about an agreement on the amount of compensation; not less than two propositions were made by it; ample time was allowed for accept390 anee or refusal; the appellee did not accept; the non-acceptance and silence was equivalent to a refusal of the proposition,- and the appellant properly proceeded to condemn; and the' circuit court should have appointed the commissioners for' that purpose, and has erred in not doing so. The proceedings, having been commenced before the 1st day of April, 1869, are not affected by the repealing act of the new Code, and the proceedings hereafter may be either under the terms of the charter, which is not repealed, or conform as far as practicable to the provisions of chapter 42 of the Code of West Virginia. The judgment must be reversed, with costs against the appellee, and the case remanded to the circuit c, urt of Wood county to be proceeded with. The other judges concurred. Judgment reversed.