2. The abutting lot-owners on the street so octhe fee in the ground covered by the street or not, will not be entitled to enjoin the railroad company road along the street in a careful and proper manfrom making such excavation and constructing its ner, unless, in doing so, the injury to the lot-owner will be such as will entirely destroy the value of his property, and therefore be equivalent to a virtual taking of it by the railroad company. In the case at bar it is held that there will be no such dewill entitle him to an injunction to restrain the struction of the value of the plaintiff's property as railroad company from constructing its road until the damages are ascertained and paid, or secured to be paid.

(Syllabus by the Court.)

H. M.

Appeal from circuit court, Ohio county.
W. P. Hubbard, for appellant.
Russell, for appellee.

claim in the case under consideration is the failure of the defendants to keep said build-cupied by the railroad company, whether they own ing in such repair as to enable them to use and occupy it as a store-room, and the damage occasioned by their removal from the same into a smaller building in a more unfavorable locality, the sale of a portion of their stock at a sacrifice, and the loss occasioned thereby, combined with the loss of trade caused by the change of locality; but under the rulings in the case of Robrecht v. Marling, supra, the plaintiffs "could not recover what they might have made on the premises during the lease, nor the loss sustained in selling their stock;" neither, in my opinion, could they recover any damage resulting from their being compelled to seek a location which was more unfavorable for their business. There appears to have been no express covenant for quiet enjoyment or to repair damages caused by SNYDER, P. The Wheeling & Harrisburg unavoidable accidents, and such a contract Railway Company, a corporation charwill not be implied. No implied covenant tered under the general railroad law of this to rebuild or repair damages on the part state, by an ordinance adopted by the of the landlord arises at common law from council of the city of Wheeling on January an exception of casualties by fire, tempest, 18, 1889, obtained the consent of said city or other causes in the tenant's covenant to to construct a branch railroad in and upon repair. Weigall v. Waters, 6 Term R. 488. certain streets of said city. The ordinance, Greenleaf on Evidence (5th Ed. p. 88, § 103) among other things, authorizes said comsays: "The law, however, presumes a pany to use for the construction and operpromise only where it does not appear that ation of its road a portion of Twentieth there is any special agreement between the street, in the city. This street runs east parties; for if there is a special contract, and west near the foot of a high hill. It which is still open and unrescinded, embrac-is constructively 60 feet wide, but, owing ing the same subject-matter with the com- to the character of the ground on which it mon counts, the plaintiff, though he should is located, only 30 feet or less on the north fail to prove his case under the special count, will not be permitted to recover upon the common counts." Then, as there is no express contract on the part of the plaintiff to repair said building when the injury was caused by unavoidable accident, and the law will imply no such contract where there is an agreement in writing, I do not, therefore, think that the plaintiffs, by either their original or amended declarations, have presented such a case as would entitle them to recover. For these reasons we are of opinion that the court below committed no error in sustaining the defendants' demurrer, and the judgment of said court must be affirmed, with costs to the defendants in error.

side of it has been graded and opened as a street, leaving a high and almost perpendicular bluff on the south side of this grade near the center of the projected street. On the north side of this street, and abutting upon it, are two lots of land owned by the plaintiff, John Arbenz, and upon each of these lots there is a brick building constructed and used for manufacturing purposes. These lots also abut on public alleys at their respective ends, and on Eoff street, which runs between them at right angles to Twentieth street. The ordinance provides that the railroad company may construct its road in a cut or excavation along the bluff in said street, and thus occupy a small portion of the graded part of the street in front of the plaintiff's property. The excavation to begin at nothing at the

SNYDER, P., and GREEN and BRANNON, eastern end of said property, and gradually JJ., concurred.

ARBENZ V. WHEELING & H. R. Co. (Supreme Court of Appeals of West Virginia. Sept. 13, 1889.)

RAILROAD COMPANIES-OCCUPATION OF STREET.

1. Under the provisions of our statute, (section 50, c. 54, Code 1887,) a railroad company, with the assent of the municipal authorities, may construct and operate its railroad along a public street of a city, in a cut or excavation below the common level of the remaining portion of the street, in such manner as will appropriate a portion of the street to the exclusive use of the railroad company, provided such excavation does not occupy the entire street, or such considerable portion thereof as would substantially prevent the use of the street by the general public, and provided, further, that it does not unnecessarily impair the usefulness of the street as a highway for the general public.

increase in depth going westward, until at a point beyond the said property it will be of sufficient depth to admit of its being covered by a roadway under which defendant's cars can pass. In front of the plaintiff's buildings the excavation will be an open cut in the street, inclosed at the top by an iron railing; thereby separating the railroad track from the remaining graded portion of the street. The facts in the record show the present graded portion of Twentieth street along the front of this property is only about 24 feet in width, and that after the railroad is constructed there will still remain open 22 feet of this street between plaintiff's property and the said iron railing on the side of the railroad track; thereby making it appear that but 2 feet of the traveled and graded part of the street will be occupied by the excavation and railroad track. The heavy grade

*

of the street at this point renders it im- the exclusive use of the defendant would practicable to construct the railroad track constitute an abandonment by the city of on the surface grade of the street; and that portion of the street, and the same therefore, in order to construct the rail- would revert to the plaintiff as the owner road along this street, the excavation is a of the fee. necessity. The said railway company hav- 1. It may be conceded as a settled legal ing commenced the construction of its road principle that, in the absence of legislative along said street in the manner aforesaid, authority empowering it to do so, a city and under the authority of the aforesaid or other municipal authority cannot aucity ordinance, the plaintiff filed his bill in thorize, by ordinance or otherwise, a prithe circuit court of Ohio county, alleging vate person or corporation to appropriate the aforesaid facts, among others, and a street, or any part of it, so as to exclude praying an injunction to restrain the de- the general public from its free and unobfendant, the said railway company, from structed use; and that this principle applies constructing its road along said Twentieth to railroad as well as to other corporastreet, in front of his property, in the man- tions. The material question, then, to be ner authorized by the said ordinance, upon now determined, is whether or not the city the ground that the ordinance was unau- of Wheeling had legislative authority to thorized by law and void. The court on grant to the defendant the use of the street March 2, 1889, awarded a preliminary in- in the manner it did by said ordinance of junction. The defendant promptly an- January 18, 1889. The forty-fifth section swered the bill, and upon notice to the of the act of March 11, 1836, incorporating plaintiff the defendant moved the court to the city of Wheeling, provides as follows: dissolve the injunction. This motion was "The council shall have authority within fully heard, and on March 9, 1889, the court said city to lay out and cause to be opened entered an order overruling it, and refus- any streets, walks, alleys, and to ing to dissolve the injunction. The defend- graduate any street, walk, alley, * ant thereupon moved the court to modify which is or shall be established within said the injunction so as to permit the railroad city and generally to ordain and company to proceed with the construction enforce such regulations respecting the of its road, upon giving bond with secur- same, or any of them, as shall be proper ity to pay all damages and costs that the for the health, interest, or convenience of plaintiff may sustain or incur by the con- the inhabitants of said city." In addition struction of its road, etc. This motion the to this power granted to the city of Wheelcourt sustained, and the injunction was ing by its charter, the legislature, in section modified accordingly. The plaintiff then 50 of chapter 54 of the Code of this state, moved the court for a rehearing of that has granted certain general powers to the part of the order modifying the injunction; defendant and other railroad corporations, which motion the court granted, and post- among which are the following: "To lay poned the argument, and the consideration out its road, not exceeding one hundred thereof, to a future day. Afterwards, on feet in width, and to construct the same; April 6, 1889, the court sustained said mo- and, for the purpose of excavations and tion of the plaintiff, and set aside that por-embankments, to take as much more land tion of its order of March 9, 1889, allowing as may be necessary for the proper conthe defendant, upon giving bond, to con- struction, repair, and security of the railtinue its work. From the said order of road. March 9, 1889, refusing to dissolve the inand to adopt a new line, junction, and also from said order of April location, or route for the same, for the 6. 1889, setting aside the order authorizing purpose of avoiding annoyance to public the defendant to give bond and continue travel, or dangerous or difficult curves or its work, the defendant has appealed to grades, or unsafe, impracticable, or unsubthis court. No depositions were taken in stantial, or expensive or otherwise undethe cause, and consequently the only facts sirable locations, routes, grounds, or founbefore us are those contained in the exhibits dations, or for other reasonable cause. filed, the admissions in the answer, and the * # * To construct its railroad across, allegations of the bill not denied or contro- along, or upon any stream of water, waterverted by the answer. The plaintiff alleged course, street, highway, road, turnpike, in his bill several grounds for relief, but one or canal which the route of such railroad or more of them seem to have been aban- shall intersect or touch; but such corporadoned, and those argued and insisted upon tion shall restore the stream, water-course, in this court may be considered as resting street, highway, road, turnpike, or canal, upon a single proposition, viz., that the thus intersected or touched, to its former council of the city of Wheeling had no leg-state, or to such state as not unnecessarily islative authority to pass the said ordi- to have impaired its usefulness, and to keep nance of January 18, 1889, giving to the de- such crossing in repair. Nothing in this fendant, in the manner before stated, the chapter contained shall be construed to exclusive occupancy of a portion of Twen- * authorize the construction of any tieth street. It is insisted-First, that such railroad upon or across any street in the occupancy, without legislative authority, inhabited portion of the city, or incorpowould constitute a nuisance, and that rated town or village, without the assent such occupancy, in the absence of legisla- of the corporation of such city, town, or tive authority, was not, and could not be, village." It will be observed that the same legalized by the city ordinance; and, sec-section of this statute which provides for ond, if it should be held that the city had the construction of a railroad along or the right, as between the public and the upon a street, and the establishment of its city, to pass said ordinance, then this ap-grade, also provides for the making of expropriation of a portion of the street to cavations and embankments where "nec

cation,

To change the grade or lo

within the scope of the constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may be constitutionally employed to carry it into effect." McCulloch v. Maryland, 4 Wheat. 316; Gibbons v. Ogden, 9 Wheat. 1. Every grant of power is intended to be efficacious and beneficial, and to accomplish its declared object, and carries with it such incidental powers as are requisite to its exercise. If, then, the exercise of the power granted draws after it a necessary consequence, the law contemplated that consequence. Inhabitants v. Railroad Co., 4 Cush. 63, 72.

essary for the proper construction, repair, and security of the railroad;" and also the provision which declares that the street intersected or touched shall be restored "to its former state," "or to such state as not unnecessarily to have impaired its usefulness." The clear and necessary implication of this language is that the legislature intended to authorize the construction of a railroad along or upon a street in such manner that it would be impracticable to restore the street to its former state. Unless such was the purpose, the alternative provision, limiting the duty of restoring the street, would be without meaning or effect. In such cases the requirement is It must be conceded that the legislature, simply that there shall be no unnecessary by the statute above quoted, has in express impairment of the usefulness of the street. words granted to railroad companies the Any necessary impairment, whether much power to construct roads along or upon or little, which is required for the proper the streets of a city. It must also be conconstruction of the railroad, is authorized ceded as facts well known to the legislaby the statute. The only limitation is that ture, and of which we may take judicial nothere must be no unnecessary impairment tice, that West Virginia is a mountain state, or interference with the street. The facts and that many of the streets of its cities, in the case before us certainly do not show towns, and villages are upon hilly ground, that the power granted to the defendant by and their grades uneven and steep. The the city of Wheeling authorizes it to unneces- grade of a railroad necessarily embraces sarily impair or interfere with the useful- considerations of convenience, expense, ness of Twentieth street. The evident pur- and facility of construction and operation, pose of this provision is that the ordinary and is fixed at a particular point with refuse of the street or highway should not be erence to grades at other points. It is therestopped by the railroad, but that its con- fore not only proper and reasonable, but tinuance should be provided for, when nec- almost indispensable, that railroad compaessary, by alteration in the street itself, nies should be allowed a very large discrewhich should increase the impediment and tion in the location and fixing the grades inconvenience of travel upon it as little as of their roads. It seems to me to be a fair possible. It is obvious that in many cases presumption that, when the legislature this would be necessary, because from the granted to railroad companies the right nature of the work it is important and to occupy and use the streets of cities, often necessary that the railroad should be towns, and villages of this state, it intended kept on a given level, and not be raised so that they should have the privilege of conas to adapt it to the existing levels of the structing their roads, to a large extent, in street. Turnpike Corp. v. Railroad Co., their own way, and of passing along and 23 Pick. 326: Railroad Co. v. Railroad Co., upon or crossing the street, over, under, 17 W. Va., syllabus 17, pp. 813, 852. It or at grade,provided they shall not unnecesis insisted for the appellee, and it is unques- sarily impair the usefulness of the street. tionably true, that corporations, whether People v. Railroad Co., 74 N. Y. 302; Adams railroad or municipal, have only the pow- v. Railroad Co., 11 Barb. 414, 450. This ers conferred upon them by their charters construction of our statute is greatly or the general statutes applicable to them; strengthened by the qualification therein and these powers are only such as are which prohibits railroads from occupying granted in express words, those necessarily any street without the assent of the muand fairly implied in the powers expressly nicipal authorities. It is very safe to assume granted, and those indispensable to the that the city authorities will be careful to declared objects of the corporation. Charles-protect their streets from any improper use ton v. Reed, 27 W. Va. 681; Gas Co. v. Parkersburg, 30 W. Va. 435, 439, 4 S. E. Rep. 650. While this is the established rule in respect to the powers of corporations, it is equally true and well established that power to do an act carries with it the authority to do it in a mode that is just, reasonable, and practicable, taking into consideration the peculiar circumstances of each case. Railroad Co. v. Railroad Co., 84 Ala. 570, 3 South. Rep. 286. The legislature may well be careful in delegating powers to corporations; but when it does grant powers it must be presumed to grant them with confidence in the judgment and discretion of the corporation, allowing all that freedom in the choice of means proper to attain the desired end which is needed to insure success. In respect to the limited powers of congress under the federal constitution, the supreme court of the United States held: "If the end be legitimate, and

by a railroad company; and that, in giving their assent to the use of a street, they will do so in such manner as will in the least possible degree impair its usefulness. It is certainly possible that under some circumstances it may be more practicable and cause less inconvenience to the public, and do less injury to the abutting lot owners, to allow the railroad to occupy a portion of the street at a grade below or above the grade used by the general public, than would be the case if the grade of the street was changed by lowering or elevating it to the necessary grade of the railroad. Therefore, unless it clearly appears that the municipal authorities have abused their discretion by allowing such occupation of the street as will unnecessarily impair its usefulness, it seems to me it would be very unwise and improper for the courts to undertake to supervise their action. Plant v. Railroad Co., 10 Barb. 26.

It is contended, however, for the appel- the usefulness of the street may be to some lee, that by the use of the words "across, extent impaired; but this certainly does not along, or upon," in the statute, the legisla- mean that the street should be rendered useture intended to limit and restrict the grant less. The streets of cities are public highso that the railroad should be upon the ways, and, as such, under the control of the surface at a common level with the rest of state alone, and the state may grant the the street, in order that the public may use use of them against the will of the municithe entire street at all times, except when pality. The city alone cannot grant to a trains are passing; and that this restriction railroad the privilege of using its streets, was designed to prohibit the railroad from as the power is in the legislature. The legthe exclusive occupation of any part of the islature may discontinue the use of streets street. It is claimed that the words without restraint from private citizens “across, along, and upon" must be applied claiming to be interested in the continuance distributively to the words "stream of wa- of the street, as adjoining owners or otherter, water-course, street, highway," etc.; wise. The control of city streets may be that the word "along" should be referred to properly delegated to the city authorities, a "stream of water or water-course," and with discretion to impose conditions on the means along the side of the stream; while use of the street; but the power is not in the word "upon" must be referred to a the city, unless expressly delegated. Mills, "street or highway," and means upon the Em. Dom. § 202; Railway Co. v. City of surface of the street. In support of this con- Covington, 9 Bush, 127. In the case bestruction, we are referred to the case of fore us it appears that Twentieth street is Stevens v. Railway Co., 21 N. J. Eq. 259, 34 not materially obstructed, nor is its usefulN. J. Law, 532. These authorities simply ness unnecessarily or unreasonably imshow that the context of the New Jersey paired. The facts show that the present statute authorizing a railroad company to width of the graded portion of the street in construct its road along a river did not au- front of the plaintiff's property is only 24 thorize it to construct its road in or upon feet, and that after the proposed excavathe river, but along-side of it; because to tion is made for the defendant's railroad the construct the road in the river would re- unobstructed portion of the street will still quire the filling in of the river-bed, which it be 22 feet; thus showing that but 2 feet had no authority to do. There were other of the present open and graded part of the considerations in this case that controlled street will be occupied by the railroad. As the action of the court which are wanting before stated, there is nothing in the record in the case at bar. The word "along," used of this case to show that this is either an with reference to a street, could not, in our unnecessary or unreasonable appropriation statute, mean "along the side" of the street, or use of the street; and therefore we must because such meaning would confer no right hold that it is authorized by the statute, whatever in respect to the street, but would and the use and occupation of it by the railleave the railroad to make its way through road company in the manner aforesaid will the adjoining lots owned by private indi- not constitute a nuisance. Perry v. Railviduals, without the consent of the city, or road Co., 55 Ala. 413; 2 Dill. Mun. Corp. § any aid from this statute. Heath v. Rail- 711, (564.) way Co., 61 Iowa, 11, 15 N. W Rep. 573. The word "upon," in this statute, does not necessarily mean upon the common grade of the street. In order to thus confine its meaning, we must imply the words "level with the surface." There is nothing in the context to require, or even to justify, this implication.

2. After what has been said in the preceding portion of this opinion, very little discussion is required to show the untenableness of the second proposition of the appellee, viz., that the appropriation of a portion of Twentieth street by the city to the exclusive use of the railroad constitutes an abandonment by the city of its easement in that portion of the street, and consequently the title reverts to the plaintiff as the owner of the fee. It might be a sufficient answer to this claim to urge that the record does not show that the plaintiff is the owner of the fee in this street. It is true, his bill avers that he is such owner; but the answer of the defendant denies this aver

For the reasons before stated, I am of opinion the words "along or upon," employed in the statute, must be construed with reference to the context and the subject in controversy, and when so fairly construed in respect to a case such as the one now under consideration, they must be understood to mean along in the street, at, above, or below the common level of the ex-ment, and there is no proof to sustain it. isting or changed surface of the street, ac- But for present purposes we will assume cordingly as the particular facts and circum- that the plaintiff is the owner of the fee in stances may require. But I am of opinion the street, subject to the easement in the that this statute does not authorize the oc- public. The use by a railroad, under legiscupancy by a railroad, for its exclusive use, lative authority, of the street of a city, in of the entire street, or of such considerable its ordinary use as a means of travel and portion of it as would substantially prevent transportation, is not an abandonment or the use of it by the general public, notwith- perversion of the street from its original standing such exclusive use may be express- purposes. Time, the unerring test in the ly authorized by the city authorities. Where utilization of new discoveries, has demonthe railroad occupies a different grade, either in an excavation below, or upon an embankment above, the general surface or grade of the street, it necessarily has the exclusive use of the portion of the street so occupied by it. The use of the word "unnecessarily," in the statute, clearly implies that v.10s.E.no.1-2

strated that long and connecting lines of railroad greatly facilitate and cheapen transportation. To construct and operate such lines, it is necessary that cities shall be traversed by them. The city is necessarily traversed by and through its streets, and by laying a railroad track through or along

a public street the use and comfort of the town council authorized so to do by the leglatter as a highway must be somewhat im- islature, it cannot be regarded as commitpaired. When this is done under proper au- ting a nuisance in so building its road, and thority, it is but the assertion of so much using it in a careful and proper manner. of the sovereign power and discretion by Yet, under section 9 of article 3 of our conwhich one right or easement is abridged in stitution, said railroad company is liable its enjoyment that the public may have an- for the permanent damages it inflicts on other deemed to be of greater value. Perry such adjoining lots, in the same manner as v. Railroad Co., 55 Ala. 413, 424; Porter v. if it had built its road without such proper Railroad Co., 33 Mo. 128. This doctrine is authority; but, after it has been once sued especially true in this state, because our for such damages, it is not liable to be sued constitution (article 11, § 9) expressly de- for the nuisances which necessarily result clares that all railroads shall be public high- from the running of its cars through such ways, free to all persons for the transporta-street, for, in so dong, it is only exercising tion of their persons and property. The use its rights, and is not committing a nuiof a street, therefore, in this state, by a rail-sance." The only qualification of the genroad for its track, is not an abandonment eral rule thus announced is that when the of the easement, but simply the imposition property of the lot or land owner, though of an additional servitude for the benefit of not actually appropriated by the railroad the public. All the questions involved in company for its uses, is nevertheless as efthis case were necessarily decided by this fectually destroyed in value as if it had been court in Spencer v. Railroad Co., 23 W. Va. in fact taken by the company for the con406. In that case, however, no question struction of its road, the owner of the propwas raised as to the right of the railroad erty so destroyed may obtain an injunction company to occupy the street; and there- to restrain the company until the damages fore, in deference to the very earnest and in- are paid, or secured to be paid. Mason v. genious argument of the counsel for the ap- Bridge Co., 17 W. Va. 396. pellee, I have deemed it proper to consider, In the case before us, whatever may be as I have done, the grounds upon which that the character and extent of the damage to right is founded. But while the right was the property of the plaintiff by the construcconceded, and not discussed, in that case, tion and operation of the railroad in the it was involved, and of necessity decided. manner proposed by the defendant, it is There the railroad company, with the con- quite certain that it will not amount to sent of the municipal authority, constructed such an absolute destruction of the value of along in the center of one of the public the property as will be equivalent to a virstreets of the town an approach to a rail- tual taking of it; and therefore, according road bridge, consisting of trestle-work and to the decision of this court in the aforesaid masonry, upon which the track of the rail-case of Spencer v. Railroad Co., the plainroad was laid several feet above the sur- tiff was not entitled to an injunction to reface or common level of the street. Spencer. strain the defendant from the construction an abutting lot-owner, sought by injunction to restrain the railroad company from constructing its approach in front of his lot until compensation should first have been made to him as the owner of the fee in the street. This court decided that such use and occupation of the street by the railroad company was not a taking of the plaintiff's property, and that he was not entitled to an injunction to prevent the construction of said approach until the damages he might sustain should be ascertained and paid. The second and sixth points in syllabus of that case are as follows: "(2) If a railroad company, without taking the land, damages it by the construction of its road, the owner of such land cannot, as a matter of right, enjoin said company, so proceeding with the construction of its road, till such damages are ascertained and paid; for section 9 of article 3 of our constitution, while it gives a right in such cases to recover of a railroad company such damages in an action at law, does not give a right to such injunction, as it does not require such damages to be paid, or secured to be paid, before such damages actually arise by the construction of the road." "(6) But such lotowners, whether they own such fee in the street or not, may, by an action at law, recover of such railroad company such damages as they might have recovered in a common-law suit, had the railroad company built its road in said street without proper authority; for while such railroad company has built its road by proper authority, conferred directly by the legislature, or by a

of its road along Twentieth street in the manner it claims the right to do in its answer, and consequently the circuit court erred in refusing to wholly dissolve the injunction. The questions as to whether or not the plaintiff is entitled to damages for the injury, if any, done to his property by the construction and operation of the defendant's railroad along Twentieth street, or the extent of said injury, and the amount of said damages, do not arise in this suit; because, for the reasons before stated, his redress for such injury, and the recovery for such damages, must be sought by him in a proper action at law, after he has sustained the damages by the actual construction of the railroad. It necessarily follows from this conclusion that the circuit court also erred by its order of April 6, 1889, setting aside the order of March 9, 1889, modifying the injunction so as to allow the defendant to proceed with the construction of its road upon giving bond, etc. The injunction itself being improper, every act or order suspending its operation or destroying its effect would diminish the error; while the setting aside of such order would, of course, prejudice the right, and increase the wrong.

For the reasons aforesaid, I am of opinion that so much of the aforesaid order of March 9, 1889, as overruled the defendant's motion to dissolve the injunction, and the whole of said order of April 6, 1889, should be reversed; and, this court proceeding to enter such order and decree as the circuit court should have entered, it is ordered that the injunction awarded the plaintiff on March 2, 1889.