Meyer v. Richmond
This is a common-law action of trespass on the case, and was brought by plaintiff in error against the defendants in error in one of the nisi prius courts of the state of Virginia. The substance of the plaintiff's declaration is as follows:

That he was the owner in fee of a lot of land fronting on Eighth street, between Cary and Canal streets, on which were located two brick buildings, the first floor of which was used for store purposes and the second story as dwellings; that said property, previous to the obstruction of Eighth street as hereinafter described, was very profitable as an investment, being continuously rented to good tenants, who promptly paid remunerative rents for the same; that on the 25th day of June, 1886, the city council of Richmond, by ordinance, authorized the Richmond & Alleghany Railway Company to obstruct, for the distance of 60 feet (commencing at Canal street, in the direction of Cary street), Eighth street, and by virtue of which said railway company wholly obstructed and occupied said street for said distance with its tracks, sheds, fences, etc., except to pedestrians, for whom said company was required to provide by overhead bridge and stairway approaches thereto. It was averred in said declaration that, 'by means of this obstruction so made by said company by authority of said city, travel along said street was arrested, and the property rights of your petitioner as an abutter upon said street were not only substantially injured, but practically destroyed; that the city had no right, under the constitution and laws of the land, to authorize the said railroad company to close said street or place obstructions therein without proper legal proceedings for that purpose, and the making of just compensation to such abutting owners as might be injured by said action; that this unconstitutional and illegal action rendered said defendants liable to your petitioner, as trespassers on his property, for all damages that he had sustained not common to the public'; that the obstructions were in themselves nuisances which the city was charged with the duty of abating and moving, and that every day's continuation of the same was a new offense; that the rights, privileges, and obligations of said Richmond & Alleghany Railway Company had been legally transferred to and assumed by said Chesapeake & Ohio Railway Company; and that it (the said last-named company) now maintained the said obstructions, and was therefore liable, jointly with said city of Richmond, for the said trespasses. A plat of the locus in quo and a copy of said ordinance were made parts of said declaration.

Damages were claimed in the sum of $5,000.

On the 9th of September, 1895, the defendants entered a general demurrer to the whole declaration and each count thereof, in which the plaintiff joined; and on the 27th of December, 1895, the court sustained the demurrer, and gave judgment for the defendants, dismissing the action.

And thereupon the plaintiff, by counsel, moved the court to set 'aside the said judgment and enter judgment for him on said demurrer; and it being represented to the court that it is the intention of the plaintiff in the case of H. Wythe Davis against the city of Richmond and the Chesapeake & Ohio Railway Company to apply for a writ of error to the judgment of this court entered this day in that cause, and the questions involved in that case being the same as in this case, the court takes time to consider of said motions, and by consent of parties this case is retained on the docket of this court, and the determination of said motions to await the result of the application for a writ of error in the case of H. Wythe Davis against the city of Richmond and the Chesapeake & Ohio Railway Company.'

On the 31st day of January, 1896, the following proceedings were had:

'This day came the parties again, by their attorneys; and the court, being now advised of its judgment to be rendered herein, on the motion of the plaintiff to set aside the judgment rendered on the demurrer to the plaintiff's declaration and to each count thereof, doth refuse to set aside said judgment.

'And thereupon the plaintiff again moved the court to set aside said judgment entered on the 27th day of December, 1895, sustaining defendants' demurrer to the declaration and to each count thereof, solely on the ground that the act of the general assembly of Virginia, approved May 24, 1870, providing a charter for the city of Richmond (Acts 1869-70, p. 120), so far as it authorized the passage of the ordinance in the declaration mentioned, as well as said ordinance, is unconstitutional and void, because in conflict with the fourteenth amendment of the constitution of the United States, which prohibits any state from depriving any person of property without due process of law, and therefore there was no warrant of law for the closing of said street as claimed by said defendants; but the court overruled said motion, and refused to grant said motion and to set aside said judgment; to which action of the court the plaintiff excepted, and filed his bill of exception, which was signed, sealed, and enrolled, and made a part of the record.'

The plaintiff then presented a petition to the supreme court of appeals of Virginia, the court of last resort of that state, asking for a writ of error to said judgment; but said court rejected the petition, by the following order:

'Virginia: In the Supreme Court of Appeals, Held in the State Library Building, in the City of Richmond, on Thursday, February 20, 1896. The petition of Engelbert Meyer for a writ of error from a judgment rendered by the law and equity court of the city of Richmond on the 31st day of January, 1896, in a suit in which the petitioner was plaintiff and the city of Richmond and the Chesapeake & Ohio Railway Company were defendants, having been maturely considered and the transcript of the record of the judgment aforesaid seen and inspected, the court, being of opinion that said judgment is plainly right, doth reject said petition.'

The case is here on error to this order.

In his petition to the court of appeals the plaintiff set up and urged a right under the constitution of the United States, as follows:

'Your petitioner now insists that the said law and equity court erred in sustaining said demurrer to his declaration, and also in refusing to set aside its judgment so holding, as set forth in his bill of exception.

'Your petitioner therefore humbly submits:

'That under the constitution and laws of this state the free and uninterrupted use of public highways once dedicated to and accepted by the public, or acquired by right of eminent domain, are for continuous public use, and that the right of access to and use of such streets by an abutting property holder is property, of which the owner cannot, under the federal constitution, be deprived without due process of law.

'The said law and equity court in sustaining the said demurrer denied to your petitioner his constitutional rights, and specially so did it in refusing to set aside its judgment when its attention was called to the unconstitutionality of the act of the general assembly of Virginia approved May 24, 1870 (Acts 1869-70, p. 120), so far as it authorized the passage of the ordinance in the declaration mentioned, because in conflict with the fourteenth amendment, which prohibits any state from depriving any person of property without due process of law; there being no mode prescribed in said act of the general assembly or in said ordinance for the devesting him of his said property rights by any judicial proceedings whatsoever.'

On page 88 is a copy of the diagram showing plaintiff's property and obstructions complained of.

The ordinance under which the defendants justified is inserted in the margin; also, the sections of the Virginia Acts of Assembly of 1869-70 under which the ordinance was passed are inserted in the margin. 

The constitution of Virginia, so far as involved in this controversy, provides, in article 5, § 14, that the general assembly shall not pass 'any laws whereby private property shall be taken for public use without just compensation.' H. R. Pollard, for plaintiff in error.

H. T. Wickham, for defendants in error.

Mr. Justice McKENNA, after stating the case, delivered the opinion of the court. 

Notes

Be it ordained by the city council of Richmond, First. So much of Eighth street as lies between the present southern boundary line of the property of the Richmond and Alleghany Railroad Company, being also the southern boundary line of the right of way of the James River and Kanawha Company, and a line drawn across Eighth street at right angles, sixty feet north of the face of the north wall of the canal as said wall is now built, shall be, and the same is hereby, closed from the 31st day of August, 1886, until it is required to be reopened in accordance with the provisions of this ordinance: provided, that the said Richmond and Alleghany Railroad Company shall, on or before the said 31st day of August, begin to erect an overhead foot bridge across the tracks and canal of said railroad on that portion of Eighth street above described, and shall complete the same by the 30th day of September, 1886.

Second. The said bridge and the stairways thereto shall be twelve feet

wide, and shall be so located, and shall be of such material or materials, design, security and capacity, as may be required by the city engineer; the same shall always be kept and maintained in such condition and repair as may be from time to time required by the committee on streets of the said city council, and always be open to the free use of the public.

Third. Should the said company fail for the space of ten days to put the said bridge or stairways in such condition or repair, after having been required so to do by said committee, then the said company shall be liable to a fine of fifty dollars, to be imposed by the police justice of Richmond, and each day's failure to be a separate offense; and the city may in all such cases repair said bridge or stairways when not done by said company as herein required, and the expense thereof shall be a debt against the said company recoverable as debts are now recoverable by the city of Richmond.

Fourth. The said company, by exercising the privileges herein granted, doth hereby agree and bind themselves to indemnify and save harmless at all times the said city from any loss or damage suffered by reason of any one being injured in any manner in using said bridge or stairways, or by reason of the building or existence of the same, and shall pay to the city any amount or amounts recovered against said city by any judgment or judgments given on account of any such injuries.

Fifth. The above-described portion of Eighth street shall remain closed until the said Richmond and Alleghany Railroad Company shall have been ordered by the ordinances of two successively elected councils to remove the said overhead bridge and restore the street to its present condition, and to the same authority and control of the city as existed prior to the passage of this ordinance. Whenever it is so ordered to be reopened, the said company shall be allowed three months from the date of the passage of the last of the said two ordinances in which to remove said bridge and stairways, and to restore said Eighth street to the same condition in which it was before the passage of this ordinance. And should the said company fail to remove said bridge and stairways and to restore said Eighth street to its former condition, before the expiration of the said three months, then the said company shall be liable to a fine of one hundred dollars, and each day's default shall be a separate offense; and the said city may remove said bridge and stairways and restore said Eighth street as above mentioned, when not done by said company as above required, and the expense thereof shall be a debt against the said company recoverable as debts are now recoverable by the city of Richmond.

Sixth. The said company doth, by exercising the privileges herein granted, agree and bind itself and its assigns to make no claim to the land now occupied by that portion of Eighth street to be closed, on account of said

closing or the privileges herein granted, and doth fully recognize and admit the right of the said city to reopen the said Eighth street at any time, according to the provisions of this ordinance.

Seventh. Nothing in this ordinance shall conflict in any way with the ordinance approved May 12, 1886, granting permission to the Richmond and Chesapeake Railroad Company to construct a tunnel under Eighth street; and should the bridge constructed under this ordinance obstruct in any manner the said tunnel or tracks leading thereto, it shall be changed by the said Richmond and Alleghany Railroad Company within sixty days after receipt of notice from the committee on streets of the said city council requiring such change to be made.

A copy.

Teste: Ben. T. August, City Clerk.

Virginia Acts of Assembly of 1869-70, pp. 120-146.

Sec. 19. The city council shall have, subject to the provisions herein contained, the control and management of the fiscal and municipal affairs of the city and of all property, real and personal, belonging to the said city; and may make such ordinances, orders and by-laws, relating to the same, as it shall deem proper and necessary. They shall likewise have the power to make such ordinances, by-laws, orders and regulations as they may deem desirable to carry out the following powers which are hereby vested in them:

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VII. To close or extend, widen or narrow, lay out and graduate, pave and otherwise improve streets and public alleys in the city, and have them properly lighted and kept in good order; and they shall have over any street or alley in the city, which has been or may be ceded to the city, like authority as over other streets or alleys. They may build bridges in and culverts under said streets, and may prevent or remove any structure, obstruction or encroachment over or under, or in a street or alley, or any sidewalk thereof, and may have shade trees planted along the said streets; and no company shall occupy with its work the streets of the city without the consent of the council. In the meantime no order shall be made and no injunction shall be awarded, by any court or judge, to stay the proceedings of the city in the prosecution of their works, unless it be manifest that they, their officers, agents or servants, are transcending the authority given them by this act, and that the interposition of the court is necessary to prevent injury that cannot be adequately compensated in damages.

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Sec. 22. The council shall not take or use any private property for streets or other public purpose without making to the owner or owners

thereof just compensation for the same. But in all cases where the said city cannot by agreement obtain title to the ground necessary for such purposes, it shall be lawful for the said city to apply to and obtain from the circuit or county court of the county in which the land shall be situated, or to the proper court of the city having jurisdiction of such matters, if the subject lies within this city, for authority to condemn the same; which shall be applied for and proceeded with as provided by law.
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