I would not, in any wise, attempt to weaken the rule, based on constitutional provisions, which protects the ownership of private property against the taking thereof for private use, with or without compensation; and, therefore, I agree that the injunction should go against the occupancy by the defendant of the land of the plaintiffs, outside the boundaries of the public highway easement, thirty feet in width, running through their land, but I would limit the injunction to that purpose only. *Page 600
It may be that the State Road Commissioner was without legal authority to grant permission, direct or otherwise, to the defendant, to lay the tramroad in question on the public highway. As stated in the majority opinion, Section 8, Article 4, Chapter 40, Acts of the Legislature, First Extraordinary Session, 1933, provides that: "No railroad or electric or other railway shall be constructed upon the roadbed of any state road, except to cross the same, * * *". But the same section provides, in effect, that no one shall enter upon such road and construct, lay or maintain thereon or thereunder any drainage, sewer or water pipes, gas pipes, electric conduits or other pipes, nor any telegraph poles, telephone or electric line or power poles, or erect any other structure upon, in or over any portion of a state road, except under such restrictions, conditions and regulations as may be prescribed by the State Road Commissioner, thus implying authority to permit pipe lines, and other structures under regulations. I question whether the statute was intended, in its reference to "railroad" or "railway", to include tramroads, and I do not believe that Section 8, read in its entirety, absolutely prohibits the occupancy of a public highway by a "railroad" or "railway", even if those terms be construed to include a tramway such as that involved herein. In County Court v. Adams,109 W. Va. 421, 155 S.E. 174, decided in 1930, and, therefore, prior to the 1933 enactment quoted from above, it was said:
*Page 601"Public officers cannot barter or give away the right of the public to have free, safe and unobstructed passage over the public highways. To do so would be an excess of power. It does not follow that all cables, wires, bridges and passageways over the highway and in no way interfering with free, safe and unobstructed passage, are public nuisances per se. If they are per se nuisances, the public officials could not authorize their existence; there could be no lawful cables, bridges and passageways over a public road. Should they become dangerous, and that fact ascertained, they should be abated as public nuisances. * * *"
In the situation here presented, the defendant had, and still has, the undoubted right to use the public highway through the plaintiffs' land to transport its timber over the public highway by the usual methods, which, as a matter of common knowledge, we know, would probably cause greater damage to the highway, and to the public using the same, than the operation of the tramroad in question, assuming, as I do, that the tramroad is so located as not to obstruct the free and safe passage of the public over the highway. I doubt if we can say that the State Road Commissioner did not have discretionary authority to permit the use of this highway in the manner which he did. This is not to say that such discretion could be abused to the extent of destroying public or private rights. In such case many ways would be open by which public rights, and the rights of an abutting land owner specially damaged, could be vindicated.
It is, of course, true that what the state has in the thirty-foot strip of land in question is an easement, presumably perpetual; and that the owner of the land on which it rests retains the fee therein. But can what remains to the landowner be made the basis of any right to injunctive relief against acts committed on the surface, which can, in no conceivable way, affect the value or the use of what remains? In theory there may be an additional servitude, and the landowner may have a legal right to protect his estate against such additional servitude; but, when reduced to practical considerations, does it furnish a basis for equitable relief in the circumstances developed by the record before us? Conceding, as I do, the right of the owner of the land to refuse to permit its use by another for any private purpose, I doubt whether that right extends to the use to which a public highway may be devoted, when that use creates no special damage to the owner of the land over which the highway passes. When a public highway is established, either through conveyance of a right of way therefor by the owner, or through presumed dedication arising from long usage, the use of that highway becomes subject to the control of public authorities, save *Page 602 only in cases where that use creates special damage to the abutting owner.
The fact that the plaintiffs may have a legal right, based upon their ownership of the fee simple estate in the land on which the easement rests, logically creates the right in them to protect that estate, and, generally speaking, equity follows the law, and will use its processes to protect such legal rights. But not always so. It will sometimes refuse to enforce legal rights, where to do so would create a greater wrong, and will, in such cases, leave parties to their legal remedies. Without going into detail, I think this is a case where such a course should be followed. I do not contend that the doctrine of balancing of equities should be applied in this case, but base my view on the fact that the plaintiffs, who are seeking the aid of a court of equity, are obviously invoking its processes to secure for themselves an unjust enrichment, far beyond the reasonable value of the property involved, and based solely on the ownership of a technical fee simple estate in land covered by a perpetual public easement. In my opinion plaintiffs should be remitted to their remedies at law, and public authorities intrusted with the protection of public interests.