Norfolk Railway & Light Co. v. Consolidated Turnpike Co.

Habbison, J.,

delivered the opinion of the court.

The hill in this case was filed by the appellee, a duly incorporated turnpike company, to enjoin the appellant, a duly incorporated street railway company, from occupying with its-tracks a certain turnpike or road in the county of Norfolk, extending from a point near the gate of the Norfolk City Park, in Norfolk county, to Tanner’s Creek. The appellee owns a toll bridge over Tanner’s Creek, to which this road is the approach. It claims to be the fee simple owner of the road in question, and insists that the action about to 'be taken by the appellant, in-erecting poles, laying ties and rails upon the road-bed, for the-purpose of running its cars thereon, is without warrant or authority, an invasion of the rights of appellee, and an effort to take its property without compensation, and without due process-of law.

The answer of appellant admits its purpose to extend its street railway service over and upon the road in question, and insists that it is fully authorized to do so. It denies that theappellee is the fee simple owner of the road, and insists that said road has always been regarded as a highway for the benefit of the public generally.

In accordance with the prayer of the bill, an injunction was granted, and from that decree this appeal has been taken.

In the petition some question is made as to the propriety of the action of the Circuit Court in overruling the motion of the-appellant to dissolve the injunction granted upon the filing of the bill, and in continuing the cause to be heard on its merits. We are unable to see that appellant was prejudiced by the action complained of, and we are led to infer that appellant does not attach importance to the suggested error, because no reference is made to the point in argument; and in the brief of counsel it is said: “The question in this case is: Does a street railroad, to be operated only for the transportation of passengers, constitute an additional eastment or servitude upon a road not within the corporate limits of a city, when that road has been dedicated, as a road, to the use of the public for fifty years? This is the sole question in the case.”

In the view taken of this ease, it is not necessary to determine whether the road in question is a public thoroughfare, or the private property of the appellee, for, if it be the latter, the Steps required by law to condemn a right of way have not been taken; and, if it be a public road, the appellant has not the requisite legislative authority to establish its street car service thereon.

Whether or not a street railway established and operated upon a public road in the country constitutes an additional easement or servitude, entitling the abutting land-owner to compensation for the resulting damage, is a question of much importance. It need not be decided in this case, however, because unless the appellant has legislative authority to build its street car line, as proposed, the question does not arise.

The appellant is a consolidation of the Norfolk Street Railroad Company and the Norfolk and Ocean Yiew Railroad Company. And the Norfolk Street Railroad Company was a consolidation of the Norfolk City Railroad Company and the Suburban and City Railway and Improvement Company. All the rights, powers and privileges enjoyed by these several companies are now merged into and enjoyed by the appellant company. '

". The charter of the Norfolk City R. R. Co. was granted by aet of the General Assembly approved January 4, 1866, and was subsequently amended by acts approved July 8, 1870, and December 19, 1889. The language relied on by appellant as giving it the authority to construct its street car line over the road in question, is found in the amended act approved December 19, 1889, and is as follows:

“That it shall be laivful for said company to lay out, construct and equip, maintain and operate, with horse or mule power, or cable, electricity or any other motive power, a single or double-track railroad in the city of Norfolk, throughout the entire length of Main street, down Market Square to the Ferry Wharf, up Church street to the “Fair Grounds,” in Norfolk county, and also through such other streets, or parts of streets, in said city as the directors may determine, and also to such other points in the counties of Norfolk and Princess Anne, not exceeding twenty miles in length from the limits of the city of Norfolk, with single or double track, and to be operated with horse, mule, steam power, electricity, cable or any other motive power: Provided, that before such work shall be commenced in said city, the consent of the Council of said city shall be obtained thereto.” Acts 1889-90, p. 26.

Appellant contends that this is ample legislative authority to construct its street railway service over and upon the road in question, and insists that this is more manifest when it is considered that said road is the physical extension of Church street, over which its cars run to the “Hair Grounds,” in Norfolk county; that t'he power granted to extend its line twenty miles into Norfolk county contemplated its being extended longitudinally over this alleged public road. It is further pointed out that before the streets in Norfolk city could be occupied by the appellant, 'the consent of the Council had to be obtained; that there being no such restriction before constructing the road in Norfolk county, the maxim expressio unius exclusio est alterius applies.

A street railway company cannot lawfully occupy a public road in tHe country, unless it bas authority to do so from the Legislature, or from the county, where the power to grant such authority has been delegated to the county by the Legislature. The authority must be by express enactment, or by implication so clear as to leave no doubt that it was granted. It cannot occupy a public road under a general authority to extend its lines not exceeding twenty miles into the county from the city limits. And this is true whether the proposed service be a commercial street railway or for the purpose alone of transporting passengers.

In the case at bar, no express authority is given the appellant company to occupy a public road in Norfolk, or Princess Anne county. The power granted is general, to lay out, construct and equip, maintain and operate, with any kind of motive power, including steam, a single or double-track railroad in the city of Norfolk, and to such other points as the directors may determine, not exceeding twenty miles in length from the city limits, into the counties of Norfolk and Princess Anne. The appellant has no power except that which is derived from the act of incorporation, and there are no words in its charter from which an implication can be drawn that would justify its appropriation of a public road in Norfolk or Princess Anne county for its railway purposes.

The public roads are the property of the State, for the benefit of the people of the whole State, and it would require very clear and explicit language to hold that the Legislature intended, by the act under consideration, to confer upon the appellant unlimited power to occupy, in its discretion, for street railway purposes, the public roads of Norfolk and Princess Anne counties. Such a grant of power would hardly have been made without mention of the public roads, and without giving the supervisors of either county a voice in the matter, or the right to impose any terms and conditions as the price of such privilege. The mere fact that the appellant has the right under its charter to use steam power in propelling its cars, if it desires to do so, tends to show that the light claimed was not contemplated by the Legislature. The further fact that in the city of Norfolk, where conditions are favorable to the use of street cars, appellant was required to obtain the consent of the Council before commencing its work, goes far to show that the Legislature never intended the public roads in the country, where the use of street cars would be an experiment, to be occupied by appellant without any consent or supervision of the local authorities. The only reasonable interpretation that can be put upon the act is that it was a grant of power to appellant to acquire by purchase or condemnation a right of way through the counties of Norfolk and Princess Anne for a distance of twenty miles, to such- points as it desired to reach.

This view is further strengthened by the fact that section 5 of the act approved December 19, 1899, provides that: “The said company, so to he consolidated, may acquire hy condemnation, according to the laws of Virginia, the lands required for the right of way of any extension or branches of its railroad, and necessary depots and stations for its operationsActs 1893-4, p. 17. This is the act consolidating the Norfolk City Railroad Company and the Suburban and City Railway and Improvement Company into the Norfolk Street Railroad Company, which latter company is one of the two merged into the appellant company.

The act cannot be construed to give appellant the right to occupy the public roads. Such an unusual grant of power must be clear and explicit.

Appellant relies upon a resolution of the Board of Road Trustees of Norfolk county, giving its consent to the use of the road in question. This Board had no authority to grant such right. It is manifest from the act creating the Board of Road Trustees of Norfolk county that their authority extended only to working and keeping in repair the roads of the county. Acts 1893-4, p. 127, as amended by act of 1895-6, p. 846.

Tor these reasons the decree appealed from must be affirmed.

Affirmed.