Hinton, J.,
delivered the opinion of the court.
On the first hearing of this case, a majority of the court not being able to agree upon the decree to be rendered-, a second argument was directed and had. Since that time I have reflected a great deal upon the case, and I now proceed to state very briefly the results of those reflections.
The question to be determined is whether the appellant is entitled to. have the injunction awarded him against the Seaboard and Roanoke Railroad Company, on the 31st day of July, 1890, which was dissolved on the 12th day of September, 1890, re-instated and perpetuated.
How, it is well settled by the common law and the adjudications of our courts, that coterminous owners of lots abutting on streets, in cases like the present, own the fee in the land to the middle of the street, subject to the easement in the public for the purposes of travel. ■ Dovaston v. Payne, 2 Smith’s Lead. Cas. 199; Bolling v. Mayor, &c., Petersburg, 3 Rand. 503; Warwick & Barksdale v. Mayo, 15 Gratt. 545; Petersburg R. R. v. Burtons, 5 Va. L. J. 460 ; 1 Min. Insts., 120.
And that the occupation of a street by a railroad company is the imposition of an additional burden or servitude upon, and a taking of the property of the owner of the fee, within the meaning of the constitutional provision which forbids the taking of private property for public use without compensation, is equally well settled. Petersburg R. R. Co. v. Burtons, supra; Western Union Tel. Co. v. Williams, 86 Va. R. 696; Dill on Mun. Corps. (Ed. 1890), secs. 703, 704; and see Pumpelly v. Green Bay Co. 13 Wall. 177, where Mr. Justice Miller, speaking for the court upon this subject, says : “ It would be a curious and unsatisfactory result if, in construing a provision of ■ constitutional law, always understood to have been adopted for the protection and security of the rights of the individual as against the government, and which has received the commendation of jurists, statesman, and commentators as placing the just principles of [655]*655the common law on that subject beyond the power of ordinary legislation to change or control them, it- should be held that if the government refrains from absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without snaking any compensation, because in the narrowest sense of that word it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen as those rights stood at common law, instead of the government, and make it an authority for invasion of private rights under pretext, of the public good, which had no warrant-in the. laws or practice of our ancestors.” See, also. Lewis on Eminent Domain, sec. 113, where that learned author says : “ "With respect to the abutting owner, highways may he divided into two classes : First, those in'which the public have an easement; second, those in which the public have the fee. In respect to the first class, the abutting owner is entitled to every right and advantage in that part of the street of which he owns the fee, not required by the public. He has the entire right and property in the soil subject to the easement of the public. The easement of the public is the right to use and improve the street for the purposes of a highway only. A railroad on the street, being foreign to such purposes, is an interference with the adjoining owner’s property rights in the soil, and an acquisition or talcing of an estate or interest in his land, for which he is entitled to compensation as in other cases.” And section 115, where the same author says : “ It is now well settled by the great weight of authority that, where the fee of a street is in the abutting owner, he may recover for the additional burden caused by a railroad laid on the street. The cases which deny compensation in any case, on the ground that a railroad is a legitimate use of a highway, are so clearly against good sense and reason, that we. clo not think they require further discussion.” Cooley, Const. Linn (6th Ed.), 1190.
[656]*656And that injunction is the proper remedy in all cases where there has been an unlawful imposition of a railroad upon private property is clear beyond controversy. High on Injs., § 392 et seq.; Lewis on Eminent Dom., § 631; Story v. N. Y. Elevated R. R. Co., 90 N. Y. 161; Williams v. N. Y. C. R. R., 16 N. Y. 179; 2 Story Eq. Jur., § 925; Shepherd v. Manhattan R. R. Co., 117 N. Y. R. 449. And see Manchester Cotton Mills v. Manchester, 25 Gratt. 828, where Staples, J., makes the following pointed.observations: “It is said by an eminent author that a private person who applies for an injunction to restrain a public incorporated company or body of functionaries from entering illegally on his land, is not required to make out a ease of destructive trespass or irreparable damage. The tendency of such bodies to act oftentimes in an arbitrary maun ér and the inability of private persons to contend with them, it i's said, raises an equity for the proper interference of the court whenever there is the slightest excess of power. The general spirit of the latter cases is, therefore, to favor relaxation rather than the strict application of the rule which denies the right to resort to equity when there is a remedy at law. And again, on page 830, he says : “ It is no answer to him to say that for the appropriation of his lot he may recover in ejectment, and for the destruction of his valuable buildings he may recover in damages. Universal experience demonstrates how ineffectual such a remedy is to afford a just compensation, especially in controversies with a corporation backed by all the appliances of wealth and the influence of public sentiment.”
Yow in this case, the effect of the company’s action is to take the plaintiff’s property without his consent. Can this be done ?
There has been on the statute books of this commonwealth for more than forty years the following provision, now made a part of section 1072 of our Code, the history of which provision it is of importance, in this connection, for us to trace. This provision first made its appearance in the second Revised Code, 1819, § 7, page 213, by which turnpike companies were [657]*657authorized to enter upon all lands and tenements through which they might judge necessary to make their roads, to lay out the same according to their pleasiire, so that neither the dwelling-house, yard, garden, or curtilage of any person be invaded without his consent. A like provision was made in the act of March 16th, 1832, incorporating the stockholders of the James River & Kanawha Company. Acts 1831-’2, § 29, p. 79.
Tn the first general railroad act of the state, March 11, 18-37 (Acts 1836-'7, § 9, p. 104), it was provided: “ Previously to the institution, and during the pendency of the proceeding for ascertaining the damages to the proprietor for the condemnation of his land for the.
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Hinton, J.,
delivered the opinion of the court.
On the first hearing of this case, a majority of the court not being able to agree upon the decree to be rendered-, a second argument was directed and had. Since that time I have reflected a great deal upon the case, and I now proceed to state very briefly the results of those reflections.
The question to be determined is whether the appellant is entitled to. have the injunction awarded him against the Seaboard and Roanoke Railroad Company, on the 31st day of July, 1890, which was dissolved on the 12th day of September, 1890, re-instated and perpetuated.
How, it is well settled by the common law and the adjudications of our courts, that coterminous owners of lots abutting on streets, in cases like the present, own the fee in the land to the middle of the street, subject to the easement in the public for the purposes of travel. ■ Dovaston v. Payne, 2 Smith’s Lead. Cas. 199; Bolling v. Mayor, &c., Petersburg, 3 Rand. 503; Warwick & Barksdale v. Mayo, 15 Gratt. 545; Petersburg R. R. v. Burtons, 5 Va. L. J. 460 ; 1 Min. Insts., 120.
And that the occupation of a street by a railroad company is the imposition of an additional burden or servitude upon, and a taking of the property of the owner of the fee, within the meaning of the constitutional provision which forbids the taking of private property for public use without compensation, is equally well settled. Petersburg R. R. Co. v. Burtons, supra; Western Union Tel. Co. v. Williams, 86 Va. R. 696; Dill on Mun. Corps. (Ed. 1890), secs. 703, 704; and see Pumpelly v. Green Bay Co. 13 Wall. 177, where Mr. Justice Miller, speaking for the court upon this subject, says : “ It would be a curious and unsatisfactory result if, in construing a provision of ■ constitutional law, always understood to have been adopted for the protection and security of the rights of the individual as against the government, and which has received the commendation of jurists, statesman, and commentators as placing the just principles of [655]*655the common law on that subject beyond the power of ordinary legislation to change or control them, it- should be held that if the government refrains from absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without snaking any compensation, because in the narrowest sense of that word it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen as those rights stood at common law, instead of the government, and make it an authority for invasion of private rights under pretext, of the public good, which had no warrant-in the. laws or practice of our ancestors.” See, also. Lewis on Eminent Domain, sec. 113, where that learned author says : “ "With respect to the abutting owner, highways may he divided into two classes : First, those in'which the public have an easement; second, those in which the public have the fee. In respect to the first class, the abutting owner is entitled to every right and advantage in that part of the street of which he owns the fee, not required by the public. He has the entire right and property in the soil subject to the easement of the public. The easement of the public is the right to use and improve the street for the purposes of a highway only. A railroad on the street, being foreign to such purposes, is an interference with the adjoining owner’s property rights in the soil, and an acquisition or talcing of an estate or interest in his land, for which he is entitled to compensation as in other cases.” And section 115, where the same author says : “ It is now well settled by the great weight of authority that, where the fee of a street is in the abutting owner, he may recover for the additional burden caused by a railroad laid on the street. The cases which deny compensation in any case, on the ground that a railroad is a legitimate use of a highway, are so clearly against good sense and reason, that we. clo not think they require further discussion.” Cooley, Const. Linn (6th Ed.), 1190.
[656]*656And that injunction is the proper remedy in all cases where there has been an unlawful imposition of a railroad upon private property is clear beyond controversy. High on Injs., § 392 et seq.; Lewis on Eminent Dom., § 631; Story v. N. Y. Elevated R. R. Co., 90 N. Y. 161; Williams v. N. Y. C. R. R., 16 N. Y. 179; 2 Story Eq. Jur., § 925; Shepherd v. Manhattan R. R. Co., 117 N. Y. R. 449. And see Manchester Cotton Mills v. Manchester, 25 Gratt. 828, where Staples, J., makes the following pointed.observations: “It is said by an eminent author that a private person who applies for an injunction to restrain a public incorporated company or body of functionaries from entering illegally on his land, is not required to make out a ease of destructive trespass or irreparable damage. The tendency of such bodies to act oftentimes in an arbitrary maun ér and the inability of private persons to contend with them, it i's said, raises an equity for the proper interference of the court whenever there is the slightest excess of power. The general spirit of the latter cases is, therefore, to favor relaxation rather than the strict application of the rule which denies the right to resort to equity when there is a remedy at law. And again, on page 830, he says : “ It is no answer to him to say that for the appropriation of his lot he may recover in ejectment, and for the destruction of his valuable buildings he may recover in damages. Universal experience demonstrates how ineffectual such a remedy is to afford a just compensation, especially in controversies with a corporation backed by all the appliances of wealth and the influence of public sentiment.”
Yow in this case, the effect of the company’s action is to take the plaintiff’s property without his consent. Can this be done ?
There has been on the statute books of this commonwealth for more than forty years the following provision, now made a part of section 1072 of our Code, the history of which provision it is of importance, in this connection, for us to trace. This provision first made its appearance in the second Revised Code, 1819, § 7, page 213, by which turnpike companies were [657]*657authorized to enter upon all lands and tenements through which they might judge necessary to make their roads, to lay out the same according to their pleasiire, so that neither the dwelling-house, yard, garden, or curtilage of any person be invaded without his consent. A like provision was made in the act of March 16th, 1832, incorporating the stockholders of the James River & Kanawha Company. Acts 1831-’2, § 29, p. 79.
Tn the first general railroad act of the state, March 11, 18-37 (Acts 1836-'7, § 9, p. 104), it was provided: “ Previously to the institution, and during the pendency of the proceeding for ascertaining the damages to the proprietor for the condemnation of his land for the. use of the company, the president and directors, their officers, agents and servants, shall have-full power and authority to enter upon all lands and tenements through which they may desire to conduct their railroad and to lay out the same according to their pleasure, so that no dwelling-house, ,or space within sixty feet of one, belonging to any person be invaded without his consent, and if they think the interest, of the company requires it to take possession thereof for the purposes of the 'company.”
Tn 1841 this provision came under review in James River and Kanawha Co. v. Anderson, &c., 12 Leigh, 278, where the court held that, upon the construction of its aforesaid charter, the company had the right to enter upon and occupy the public streets of a town, as well and in dike manner as the lands of individuals, when it shall deem the same necessary for its canal or other works, liable to make compensation in damages to any party injured. Judge Tucker, on page 314, saying : “ For the purposes of its work it is authorized to enter upon any lands and tenements through which it desires to conduct its canal without any limitation or exemption, except the dwelling-house, yard, garden or curtilage of any proprietor. The. streets and highways, which must obviously be encroached on, are not excepted. The streets of Richmond, therefore, are as much [658]*658subject to be entered upon for the use of the company as any other property.”
In this case the court held that, under the language of the James River and Kanawha Company, authorizing it'“to enter upon all lands and tenements, &c.,” it could enter upon the streets of- a city as upon any other land.
To obviate this objection, which equally applied to the general railroad law, the legislature enacted the following provision, to he found in section 23 of chapter 56 of the Code of 1849:
“ Ko company shall occupy with its works the streets of any town until the corporate authority of the town shall have assented to such occupation, unless such assent be dispensed with by the special provision of law.” See Report of Revisors, pp. 328 and 329.
As the law then stood, the railroad company could only enter the streets of a city or town upon the consent, of the corporate authority, but could not “ invade the dwelling-house of airy, or any space within sixty feet thereof.” That is, while such companies might, under certain circumstances, enter cities, they were prohibited from invading the dwelling-house of the citizen, or any space within sixty feet thereof belonging to the citizen, without his consent. See R. & Y. R. R. Co. v. Wicker, 13 Gratt. 375, where the court uses the following language : “ In my opinion the terms of the statute, standing alone, import that a dwelling-house, and a space .of sixty feet, about it, are exempt from invasion by internal improvement companies, as being reserved to the owner thereof. Without such invasion the owner enjoys his dwelling-house and circumjacent land to the extent of his boundary, however large. If, however, public necessity requires that a portion of his property be taken from him, it may be done, but not so as to invade his dwelling-house, or a space of sixty feet about it. The law merely reserves to the owner a limited extent of his own property, but does not confer on him any control whatever over the land of the coterminous owner.”
[659]*659In this state of the law the legislature enacted the following provision:
“ 1. Be it enacted hy the general assembly of Virginia, that section 24 of chapter 56 of the Code of 1873 be amended and re-enacted so as to read as follows :
“ Section 24. BTo company shall cross or occupy -with its works the streets or alleys, public or private, of any city or town without, the assent of-,the corporate authorities thereof, unles's such assent he dispensed with by special provision of law; and in case any lot or lots along the line of such streets or alleys shall, by such occupation or crossing, he impaired in value, such company shall, before crossing or occupying such streets or alleys, make compensation therefor to the owner of the same; said compensation to be ascertained in the manner provided by law for the assessment of land damages.
“ 2. This act shall be in force from its passage.” Act approved January 15th, 1875 ; Acts, 1874-'75, pp. 35, 36.
And it is claimed that this provision by implication repeals so much of the act as prohibits these companies from constructing their works, &c., within sixty feet of the land of the citizen as may lie circumjacent to his dwelling-house. And while the law' does not favor repeals by implication, this seems to be so, else there could not have been any use for so much of the act as provides that, “ in case any lot or lots along the line of such streets or alleys shall, by such occupation or crossing, be impaired in value, such company shall, before crossing or occupying such streets or alleys, make compensation therefor to the owner of the same.”
This, however, cannot advantage the defendant company in this ease, for, as it it has not chosen to pursue the only way pointed out by the statute for invading the street, the fee in w'hich, as wre have seen, wats in the appellant, and is within sixty feet of his dwelling-house, it has not acquired the right to use this street.
The injunction, therefore, must be perpetuated.