Elkins Electric Ry. Co. v. Western Maryland R.

DAYTON, District Judge (after stating the facts as above). The right determination of the questions involved in this controversy depends upon the construction of certain West Virginia statutes. At the threshold it may be best to set forth these statutory provisions: Section 2348, Code 1906 (chapter 54, § 50), defines additional powers conferred by the act upon railroad corporations in 12 separate clauses of which I quote; “Second. To take and hold such voluntary grants of real estate and other property as shall be made to it, in aid of the construction and use of its railroad, and to sell and convey the same, when no longer required for the uses of such railroad, not incompatible with the terms of the original grant. “Third. To purchase, hold and use all such real estate and other property as may be necessary for the construction and use of its railroad, and the stations and accommodations necessary to accomplish the object of its incorporation, and to sell and convey the same when no longer required for the use of snch railroad. “Sixth. To construct its railroad across, along or upon any stream of water, water-course, street, highway, road, turnpike or canal which the route of such railroad shall intersect or touch ; but snch corporation shall restore the stream, water-course, street, highway, road, turnpike thus intersected or touched to Its former state, or to such state as not unnecessarily to have impaired its usefulness, and to keep such crossing in repair. * * * And provided further, that in ease of the construction of said railroad along highways, roads, turn — 730 — pikes or canals such railroads shall either first obtain the consent of the lawful authorities having control or jurisdiction of the same, or condemn the same under the provisions of section forty-eight of this chapter. “Seventh. To cross at grade, or to cross over or under, intersect, join and unite its railroad with any other railroad mow built and constructed, or hereafter to be built and constructed within this state, at any point, on its route, and upon the grounds of such other railroad company, with the necessary turnouts,- sidings and switches, and other conveniences in furtherance of the object of its connections, and every corporation whose railroad is, or shall be hereafter intersected by any new railroad, shall unite with the corporation owning such new railroad in forming such intersection and connections and grant the facilities aforesaid; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points and manner of such crossing and connections, the same shall be ascertained and determined in the manner prescribed by section forty-eight of this chapter.” The section 48 (section 3340) referred to in the two last clauses provides: “Sec. 48. If any railroad corporation shall be unable to agree with the owner of any real estate for the purchase thereof for its corporate purposes it may have such real estate condemned for such purposes under-the provisions of chapter forty-two of the Code. * • * Any such corporation may take and hold under any grant or ordinance made by a municipal corporation any interest or right such municipal corporation may have in any street, alley or public ground, and may exchange therefor, in whole or in part, dedicate or otherwise secure to public use, another street, alley or parcel of ground out of real estate owned by such railroad corporation, whether acquired by purchase or condemnation ; or under an agreement with such municipal corporation, may condemn land for use as such new street, alley or public ground, in the same manner as it may condemn land for its own use. * * * ” The Chapter 42 of the Code referred to above defines the public use for which private property may be taken, and provides the methods of procedure in so taking it. The Legislature of Virginia at its session of 1836-37 (Acts 1836-37, p. 108, c. 118, §' 16) passed an act which became incorporated into as section 24 of chapter 56 of the Code, 1849, which provided that: “See. 24. If any railroad, turnpike or canal company deem it necessary in the construction of their work to cross any other railroad, turnpike or canal, or any state or county road, it may do so, provided its work be so constructed as not to impede the passage or transportation of persons or property along the same. If any such company desire that the course of any other railroad, turnpike, canal or state road should be altered to avoid the necessity of any crossing, or of frequent crossings, or to facilitate the crossing thereof, the alteration may be made in such manner as may be agreed between the company desiring such alteration and the other railroad, turnpike or canal company, or the. board of public works in the case of the state road. And if such construction" or alteration as is allowed by this section, shall cause damage to any company, or to the owner of any lands, the railroad, turnpike or canal company first mentioned, shall pay such damage. But any county road may be altered by such company for the purpose aforesaid, whenever it shall have made an equally convenient road in lieu thereof.” This provision was incorporated without change in Code Va. 1860, c. 56, § 24, and in the Code W. Va. 1868, c. 52, § 11. The Legislature of West Virginia incorporated into an act of April 3, 1873 (Acts 1873, p. 213, c. 88), the law of the state governing the organization, powers, management, and operation, of railroads, and in this act incorporated what is now substantially section 2343 (chapter 54, § 50) of our Code of 1906, portions of which have been hereinbefore cited. By the act of March 10, 1881 (Acts 1881, p. 212, c. 16), this section — 731 — 11 of chapter 52 of the Code was amended so as to provide that, in case the parties interested fail to agree'upon such crossing or alteration as is desired, the company desiring it may bring its suit in equity, etc., and with this amendment it became incorporated into our Code of 1906 as section 2216 (chapter 52, § 11). And by an act passed February 19, 1907 (Acts 1907, p. 228; c. 43), this section was still further amended so as to make it applicable to pipe line companies. As it now stands it reads as follows: “Sec. 11. If any railroad, turnpike, or canal company, or any company organized for 1ho purpose of transporting carbon oil or natural gas, or both, by means of pipes or otherwise, deem it necessary in the construction of its work, or any branch or siding thereof, to cross any other railroad, mrnpike, or canal, or pipe line, or any stale or county road at grade or otherwise, it may do so; provided, its work be so constructed as not to impede the passage or transportation of persons or property along the same. If any such company desire that tlio course of any other railroad, turnpike, canal, pipe line, or stateroad, or any stream which is not a public highway, should be altered, to avoid the necessity of any crossing, or of frequent, crossings, or to facilitate die crossing thereof, or the construction of a parallel work, the alteration may bo made in such manner as may be agreed between the company desiring such alteration and the other railroad, turnpike, or canal company, or pipo line company, or the board of public works in the case of a stale road, or the owners of the land to be affected by the alteration of the course of such stream, in ease the parties interested fail to agree upon such crossing or alteration as is desired, the company desiring it may bring its suit in equity, and in such suit the court may, in a proper case, decree that such, or any proper crossing, or alteration, may be made upon payment of damages to be ascertained as provided in chapter forty-two of the Code, and the company desiring such crossing or alteration may thereupon proceed under said chapter to obtain the right to make such crossing or alteration. If such crossing or alterations as is allowed by this section, shall cause damage to any company, or to Uie owner of any lands, the railroad, turnpike, canal, or pipe line company first mentioned shall pay such damages; but any county road may be altered by any such company for the purpose aforesaid, whenever it shall have made an equally convenient road in lieu thereof.” Section 2358 (chapter 54, § 61) provides: “Sec. 61. A bell or steam whistle shall be placed on each locomotive engine, which shall be rung or whistled by the engineer or fireman, at the distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing- or whistling for a time sufficient to give due notice of the approach of such train before such street or highway is reached, under a penalty of not exceeding one hundred dollars for each neglect, one-half of which shall go to the State and the other to the prosecuting witness; and the corporation owning or operating- the railroad shall be liable to any party injured lor all damages sustained by reason of such neglect. Provided, that such penalty shall bo sued for within three months from the time the cause of ac-lion arises, and not after. AVhen the tracks of two railroads cress each other, or in any way connect at a common grade, the crossing shall be made and kept in repair, and watchmen maintained thereat at the joint expense of the companies owning the tracks', all trains or engines passing over such tracks shall come to a full stop not nearer than two hundred feet nor farther than eight hundred feet from the crossing and shall not cross until signaled so to do by the watchman, nor until the way is clear; and when two passenger or freight trains approach the crossing at the same time, the train on the road first built shall have precedence, if the tracks are both main tracks over which all passengers and freights on the road are transported; but if only one track is such main track, and the other is a side or depot track, the train on the main track shall have precedence; and if one of the trains is a passenger train and the other a freight train, the former shall take precedence; and regular trains on time shall take precedence over trains of the same grade not on time, and — 732 — engines with cars attached not on time shall take precedence of engines without cars, not on time.” It is, in effect, earnestly insisted in this case by counsel that the electric railway company has the right under clause seven of section 2343-(chapter 54, § 50) of the Code “to cross at grade” the tracks of the Western Maryland Railroad Company “at any point on its route” and upon the grounds of the defendant railroad company that it may select, and that this section of the law imposes upon the defendant railroad company.the obligation to “unite with it in forming such intersection and to grant it facilities for the purpose,” and that by the terms of section 2358 (chapter 54, § 61) it is entitled to require the defendant railroad company to bear half the expense of the making and keeping in repair of such crossing, as well as the cost of maintaining a watchman thereat. On the other hand, it is insisted by the defendant railroad company’s-counsel that under section 2216 (chapter 52, § 11) of the Code the electric company is not entitled to select its place of crossing, but that in case of disagreement it is required to apply to a court of equity, and have that court of equity pass upon and determine where such-crossing should be, its character, and the conditions and limitations under which it should be made, and then must resort to the court of law in the usual condemnation proceeding to have ascertained the damages that it should pay to the defendant company for such crossing. It seems clear, both by the terms of the statute and by the decisions in this state, that the right of way of a railroad becomes the private property of such company, and that the rights of the public therein extend only to the use made thereof. The statutes quoted expressly give to such company the right, by gift or purchase, to take in fee such right of way and other real estate as may be necessary for its purposes. When it has acquired such real estate and no longer needs the same for its purposes, it may by these statutes exchange- or sell the same. In Railroad Company v. Ironworks, 31 W. Va. 710,. 8 S. E. 453, it is held: “The property of railroad corporations, so far as concerns the ownership-thereof and the profit to be made of its uses, is to all intents and purposes private property, although applied to a use in which the public have an interest.” By reason of the interest which the public has in the use of such-railroad property the Legislature has allowed the right of condemnation to be exercised in behalf of railroad corporations to secure such right of way. It must be conceded-that, where one railroad company has secured under its charter rights the right of way and built thereon its line of road and is using the same for public uses, the Legislature could not authorize the taking wholly thereof by another railroad corporation for a like public use. The extent of its power would be-to authorize the second company to place upon the land an additional burden or easement on or oyer it to be constructed so as “not to impede transportation of persons or property along the same” by the first corporation owning the fee title to the land. These fundamental principles were well set forth and settled by Tucker, J., in Tuckahoe Canal Company v. Tuckahoe & James River Railroad Co., 11 Leigh (Va.) 42, 36 Am. Dec. 374. Where railroads cross each other for the733 mutual benefit of both, and do “not impede the transportation of persons and property along the” route of the first one owning and operating the right of way, the Legislature may well direct as it has in clause 7, § 2343 (chapter 54, § 50), that the railroad intersected “shall unite with the corporation owning such new railroad in forming such intersection,” but this section cannot be construed as, first, authorizing the new company to take wholly the property of the old to the destruction of its right to use and operate its road; nor, second, to take such right of easement and joint use without paying just compensation. Such a construction of this statute would be to allow confiscation and destruction of vested rights in the older company which arc always to be first considered. It is unfortunate that there should be such apparent conflict between clause 7 of section 2343 (chapter 54, § 50) and section 2216 (chapter 52, § 11), and it is also unfortunate that so few decisions of the Supreme Court of Appeals of this state exist construing and harmonizing them. In fact, there exist but two such decisions, and, while rendered within less than four months of each other, most unfortunate of all they are in several particulars in direct conflict with each other and muddy rather than clear the waters. These two cases found in the same volume are Wellsburg & State Line R. R. Co. v. Panhandle Traction Co., 56 W. Va. 18, 48 S. E. 746; Grafton & Belington R. R. Co. v. Buckhannon & Northern R. R. Co., 56 W. Va. 458, 49 S. E. 532. In the first case Poffenbarger, J., very fully, clearly, and, I think, satisfactorily, lays down the true principles to guide us in cases like this arising under these statutes. He very pertinently calls attention to the fact, as I have done, that section 2216 (chapter 52, § 11) has come down to us from the Virginia legislation of 1837, and has been re-enacted and incorporated in all the Codes since that date. I have shown, a fact arising since this decision was rendered, that it was re-enacted and extended to pipe line companies by the Legislature of 1907. tie sets forth substantially: (a) That the acquisition of a crossing by one railroad over another involves a taking of private property for public use. (b) That by this section 2216 courts of equity have power to determine (1) the exact location of such crossing; (2) the manner in which it shall be made, (c) That wherever such crossing at g-rade is necessary it is to be granted, in the absence of agreement by the parties, under such conditions and limitations as to location and mode of crossing as such courts of equity may justly impose, in view of the interests of the parties and those of the public, (d) That, while courts of equity thus have the right to determine the location and mode of crossing, they do not have the right to grant or decree the crossing itself to be made or the right to make it, or to ascertain and fix the damages to be paid for it, but that this must be done by the law court by condemnation proceeding under chapter 42 of the Code. The opinion in the second case is both brief and unsatisfactory, and, with the utmost deference, in my judgment, unsound. In that case one railroad company had instituted at law its proceeding against another railroad company to condemn a crossing of its own location and mode of construction, and not agreed to by the owning company. The latter brought its bill in equity to enjoin such proceeding at law until the court of equity could determine the location of such crossing and — 734 — the conditions and limitations under which it should be made. The court held that the law court had jurisdiction to condemn the crossing, and that equity had no jurisdiction to restrain or stay such proceeding at law. This conclusion is sought to be sustained on the ground that: “It is. a well-settled rule that a court of equity will not usually enjoin an action at law on grounds which may be urged as a defense to such action. Even in eases of concurrent jurisdiction the action will not be interfered with by a court of equity, unless that court can give a more perfect remedy or the case can be better tried by the procedure of that court.” That this principle is an A B C one in common-law practice will not be questioned. But in the enforcement of purely statutory requirements wherein each court has a defined duty to perform, and that of the equity court to be performed first by the inevitable necessities of the case, how does such principle apply? It cannot for a moment be held that the two courts have “concurrent” jurisdiction over the whole matter involved. It is the exclusive right of the equity court to fix the location of the crossing, and to set forth the conditions and limitations upon which it can be made at this location. It is then the exclusive right of the law court to enforce the law of eminent domain, and condemn and take the property right to this easement, and fix and ascertain the compensation to be paid therefor. Until the equity court has fixed the place of crossing and its character, how can the law court ascertain the damages to be paid for its taking? How can petitioner in such.condemnation proceeding undertake to describe the crossing he is entitled to have? How can any jury determine the damage for something not identified and not known? How could a writ of error in such proceeding help the matter? Reverse and dismiss the proceeding it may be answered. Would this be better than to stay it until identity and location can be determined? What possible ground for prohibition would exist? Prohibition is allowable to prohibit a proceeding wholly unwarranted by law, or one assumed to be taken bjr a court absolutely without jurisdiction. The petitioner here had right to enforce a crossing, and the law court had complete jurisdiction, but only after the equity court had determined its location, conditions, and limitations. It is to be noted that while Poffenbarger, J., who wrote the opinion in the first case, concurs in this one by McWhorter, J., that injunction will not lie, he decidedly objects to its logical conclusion that, under the seventh clause of section 2343 (chapter 54, § 50), the company desiring the crossing can go on and fix its location and character, then go into the law court, and have it condemned where and as it wants it as a matter, of right, regardless wholly of the rights of the company owning, in possession of, and using the land. For my part, in view of the conflict in these two decisions by the same court and the same judges, these two being the only ones, I feel free as a federal judge under well-settled principles laid down by the Supreme Court to guide me in such cases to wholly reject the principles laid down in this case of Grafton & Belington R. R. Co. v. Buckhannon & Northern R. R. Co., and hold in accordance with those of the Railroad Co. v. Traction Co. that the right to condemn at law a crossing as provided by clause 7 of section 2343 is inchoate, and cannot in case of disagreement of parties be enforced until the location and char — 735 — acter of such crossing has been first determined by the equity court under the provisions of section 2216. IE necessary, I would hold that, if such condemnation were attempted, the equity court would have full power to enjoin and stay the prosecution of any such proceeding at law until it liad by its decree fixed the location and character of the crossing to he condemned. I have deemed this discussion necessary in order to determine the contention of the electric company that it is entitled to have the crossing of its choice as a matter of right. As to the contention that under this same clause 7 of section 2343 that provides that “every corporation whose railroad is, or shall be hereafter intersected by any new railroad, shall unite with the corporation owning such new railroad in forming such intersection and connections and grant the facilities aforesaid,” and section 2358 (chapter 54, § 61), which provides, among other things, that “when the tracks of two railroads cross each other, or in any way connect at a common grade, the crossing shall be made and kept in repair, and watchmen maintained thereat at the joint expense of the companies owning the tracks,” the railroad company is not entitled to damages for the crossing, it is sufficient to say, in addition to what I have already said, that these statutes- confused and conflicting as they seem to be do not in my judgment uphold such contention. If they did, when it is remembered that the taking of such crossing, as we have shown, is “a taking of private property,” then they would have to be held to be in contravention of the constitutional provision inhibiting “the taking of private property without just compensation therefor,” and therefore void. I have grave doubt whether section 2358 was ever designed to or can he construed to apply to crossings made by electric railroads. Taking all its provisions together, requiring the sounding of whistles or the ringing of a bell required to he maintained by the engines, etc., it would seem to be applicable alone to steam roads. If it is applicable, it seems to me clear that, in ascertaining the damage to be recovered by the railroad, account must he taken of the one-half cost of maintenance and repair and of watchmen imposed by this statute, but I am not required to determine this finally at this time. Tf, then, this court must determine, as such seems to be the requirement of the law, the location of a crossing over defendant’s tracks for this electric road, I feel constrained to say from the report of the engineers and the evidence in the case that such crossing should not be fixed or allowed at the point asked for by the electric company. Without discussing the evidence, it clearly shows that such crossing would be very dangerous to the railroad and to the public; that it would be very expensive to both roads, would very greatly impede the railroad company’s necessary operations, and can be avoided. So far as crossing at First street is concerned, I think it practicable, but undesirable, far better than the one sought, however. As it is tendered free without conditions, it would require no further investigation on the part of this court to fix its character. My deliberate judgment would favor the overhead crossing some 300 or 350 feet beyond the one asked for by petitioner, and, if it is desired by the petitioner to investigate this one further, I will retain the cause for a reasonable time to enable them to do so, or, if desired, I will require report thereon to be made by engineers.