Keystone Bridge Co. v. Summers

13 W. Va. 476, 1878 W. Va. LEXIS 15

• Court: West Virginia Supreme Court
• Decided: July 6, 1878
• Status: Published

Opinion

GreeN, PRESIDENT,

delivered the opinion of the Court:

Syllabus i. Syllabus 2. The first enquiry is: Did the bill in this case present on i ts face sufficient facts to justify the awarding of the injunction ? A court of equity ought not to interfere by injunction to prevent a public nuisance, when the party asking its aid shows no private injury actually sustained or justly apprehended by him. Beveridge v. Lacey, 3 Rand. 63. The obstruction to a public highway, to justify the interposition of a court of equity, must be more than a mere public nuisance, it must work a special injury to the plaintiff: Coming et al. v. Lowerre, 6 Johns. Ch. 439; and such injury must not be trivial, and such as may be fully compensated in an action at law. Fort et ux., et al. v. Groves, 29 Md. 188. But if the right of the public to the use of a highway is clear, and a special injury is threatened by an obstruction of the highway, and this special injury is serious, reaching the very substance and value of the 'plaintiff’s estate, and is permanent in its character, a court of equity by an injunction ought to prevent such a nuisance. Green v. Oakes, 17 Ill. 249; The Mohawk Bridge Co. v. The Utica and Schenectady Rail Road Co., 6 Paige 563; Jerome v. Ross, 7 Johns. Ch. 322; Crenshaw v. State River Co., 6 Band. 245.

In this case the public highway is the approach to the plaintiff’s toll bridge from the eastern side; and its obstruction must necessarily injure most seriously the value of this bridge as a toll bridge. The plaintiff by this public nuisance sustains a peculiar injury, which cannot be compensated adequately by a common law suit. The obstruction, which he seeks to enjoin, is a perpetual closing of this public highway; which must operate a permanent injury to the plaintiff’s toll bridge, rendering it comparatively valueless.

The case' comes directly within the prevention, or, I might say, preservation powers, of a court of equity. The fact, that the defendant, Summers, had already obstructed the road before the granting of the injunction, was no reason, why it should not be granted, as he threatened to continue this obstruction permanently. In such a case a court of equity alone can furnish adequate redress.

Summers by his answer denies, that this road was a public highway. And if this be so, the injunction ought to be dissolved. The whole case rests on the question : Is this road a public highway ? Has it ever been legally established as such; and if so, has it been since legally closed ?

The county court of Kanawha had an unquestionable right, after taking certain steps, to make an order estab-Ashing this road as a public highway. Acts of 1872-3 ch. 114, §36 p. 292 and ch. 194. §42 p. 575. The order 0f coullty courfc made November 2, 1875, expressly establishes this road asa public highway. Were all the steps, which were necessary to give this county court jurisdiction to establish this road, taken ; or is the'order a mere nullity, because preliminary steps essential to give the court such jurisdiction were not taken ?

The appellants’ counsel insist, that before a county court has any jurisdiction to establish a road as a public highway, the proprietors or tenants of the property, which will have to be taken or injured, must bo notified, or they must voluntarily appear; and that Lewis Summers and his trustee, W. S. Laidley, were the proprietors and tenants of the property taken in this case, according to true interpretation of the law; and neither of them having been summoned or appearing before this county court, it had no authority to make the order establishing this road ; and that thé order, made by it on November 2, 1875, establishing this road as a public highway, is therefore a mere nullity.

Laidley had neither the beneficial interest in the land taken for this road, nor had he the possession thereof he had only the naked legal title to the land, which he held as trustee for others. Summers did not have the legal title to the land, nor did he have either the possession thereof, or a right to the possession. He had only a lien on this land, to secure the portion of the purchase money, -which was then unpaid. He had a right only to have the land sold, or so much thereof as was necessary, to pay his lien, if "Walker did not pay it before the day of sale.

Could the county court of Kanawha establish a county road though this land, without the consent of parties having this kind of an interest, and without first notifying them ? This depends upon the construction of chapter 174 of the acts of 1872-3, which confei’S on county courts the right to establish county roads, and prescribes the mode of proceeding in such cases. A correct interpretation of this act with reference to this point, and others arising in this cause, will be aided by a review of the laws in force in reference to the condemnation of lands for public use, at the time this statute was enacted.

The Code, of Virginia provides, that “a person having, upon lands owned by him on a water course, or proposing to build on such lands, a water-mill, or other machine, manufactory or engine, useful to the public, and desiring to erect a dam across or in such water course, or to cut or enlarge a canal through lands above or below, or to raise a dam, which may have been erected under an order of the court, may apply to the court of the county, wherein such mill, machinery, manufactory or engine stands, or is proposed to be built, for a writ ad quod damnum. .Of such application ten days previous notice shall be given,' in the manner prescribed, to the tenant of the freehold, his guardian or committee.” See Code of Virginia of 1860, ch. 63, ^§1 & 2, The court, on the return of this inquest, is authorized to grant the leave asked, on certains conditions; and then the 7th section of the act provides: “The applicant, to whom such leave may be granted, shall, upon paying to the several parties entitled thereto the compensation so ascertained, become seized in fee simple of the land circumscribed by the jury, and be authorized to proceed according to such leave.” See Code of Virginia of 1860, p. 370.

A law similar to this had been long in force in Virginia, except that it did not comprehend as many purposes, for which such a condemnation could be had.

A law applicable to mills, passed in 1792, was in the matters above stated, the same as this. See Revised Code of 1803, vol. 1, ch. 105, p. 197. We may call it the mill law of Virginia. The law was re-enacted in the Code of West Virginia, but with important variations. The application was to be made to the circuit court; the notice was to be given in the manner prescribed on all owners, claimants, and persons holding ]ieng on the ¡an^ instead of the tenant of the freehold; ascertainment of the just compensation was made by commissioners, instead of by a jury, and when ascertained the court was authorized to grant the leave upon certain conditions; when the law provided : “the applicant, to whom such leave may be granted, shall, upon paying to the several parties entitled thereto the compensation so ascertained, become seized in fee simple of the lands circumscribed by the commissioners, and be authorized to proceed according to such leave.” See Code of West Virginia, ch. 44, §32.

The Virginia mill act has been construed by the Court of Appeals of that, State. It originally required the notice to be given to the “ proprietor of the land proposed to be taken.” The person to be notified was, in the reenactment of the law, designated as the “ tenant of the freehold.” The Virginia Court of Appeals has decided, that by both phrases the same person was meant, that is, “ the tenant in possession as the visible owner of the land;” and that it was only necessary to serve notice on him, though he was not the real owner of the land to be taken.

President Pendleton, in delivering the opinion of the court in Wood v. Boughan, 1 Call, 332, intimates, that this was the true construction of these words in the mill law of Virginia, though it was not then so decided. This construction of these words received some countenance from the decisions in Colman v. Moody, 4 H. & M., 1; and Anthony v. Lawhorne, 1 Leigh 1; and in the case of Pitzer v. Williams, 2 Rob. R. 241; and Supervisors of Culpepper v. Gorrell et al., it was expressly decided, that this was the true construction of these words in this law.

Besides this mill law, the Code of Virginia contained a general law, by which corporations were to condemn lands of private persons for uses, in which the public had an interest. It provided, that “ if the president and directors of a company incorporated for a work of nal improvement, the court of a county, or the council oí a town, cannot agree on the terms of purchase with those entitled to lands, wanted for the purposes of a company, county or town, five disinterested freeholders shall be appointed by the court of the county, or corporation, in which the land, or a greater part thereof shall lie, any three of whom shall act, for the purpose of ascertaining a just compensation for such land. When it is intended to apply for such appointment, ten days previous notice thereof shall be given, in the manner prescribed, to the tenant of the freehold, his guardian or committee.” See Code of 1860, ch. 56 §§6, 7.

After reports from these commissioners, if good cause is shown against the report, this law provided for the appointment of new commissioners; and then provides: “whether any such new appointment be made, or not, the company, court, or town, on paying into court the sum ascertained by the previous report, may, notwithstanding the pendency of the proceedings," enter into and construct work upon, or through, the land described in such previous report; and no injunction shall be awarded, unless it is manifest, they are transcending their authority, and it is necessary to prevent injury, that cannot be adequately compensated in damages.” See Code of 1860, ch. 56 §13 p. 325.

If another report is made, and confirmed, awarding a larger sum, judgment therefor is to be given against the company, county or town, and till its payment they have thereafter no right to the possession of the land ; but “ from the time of the satisfaction of the judgment by the payment of the money to the persons entitled thereto, or into court, the title of the land shall be absolutely vested in the company, county or town in fee simple.” See Code of Va. 1860, ch. 56, §15, p. 325. “To enable the court to dispose properly of the money, so paid into court, it might have enquiries by a commissioner to ascertain, what persons are entitled thereto, and in what proportions; and might make an order of publication requiring all interested to appear before the commis-sjoner^ t}1(qr i>espective claims might be passed upon; and after such reference to the commissioner and publication the court could make such disposition of the money, so paid into court, as to it might seem right.” See § 16, p. 325-6.

The act also, in lieu of this mode, provides for a general board of commissioners to be appointed, in a prescribed manner, to assess the compensation in all cases, instead of special commissioners in each case.

This we may call the general law of "Virginia for condemning lands for public uses.

The West Virginia Legislature also passed a general law for the condemnation of lands for public uses, resembling this law in most respects, but differing from it in many material matters. It provided, that “ in any case, in which real estate may be lawfully taken for public interests, application may be made to the circuit court, to appoint commissioners, to ascertain a just compensation to the owners of the estate proposed to be taken.” See Code of West Virginia, ch. 42, §2, p. 260. The application was required to be in writing, and to set forth not only the names of the owners, but also if any existed, the names of any persons having claims to the land, or judgment liens, or other liens, on the land, and the amount of such liens. The law then required : “ Of such application ten days notice shall be given, in the manner prescribed by the act, to all owners, claimants and persons holding claims. See Code of W. Va. ch. 42, §6, p. 261. The Virginia general act provides only for notice to the ‘ tenants of the freehold.-’ ”

The West Virginia act then provided, that if there were no liens or conflicting claims, the applicant and owner might agree on the compensation,on which the court could have an order transferring the title of the owner’s interest in the land wanted to the applicant; otherwise commissioners were to be appointed, and after a confirmation of their reports within twelve months, the amounts ascertained “ could be paid by the applicant to the persons entitled thereto, or into court. Upon such payment the title to the part of the land, so paid for, shall be absolutely vested in fee simple, except in the case of a turnpike, or other road, (not including however railroads,) the right of way only shall be vested. See §18.

The law then makes provision similar to the general law of Virginia, before referred to, with reference to subsequent reports, if the first report is not confirmed; and for transferring, title in like manner, pending the proceedings, to the applicant; and for a disposition of money paid into court after enquiry, as to who is entitled thereto. See sections from 18 to 23.

This act was repealed by the Legislature December 29, 1875, and another passed in its stead, the provisions of which are generally copied from this chapter of the Code of West Virginia, the law being modified only to meet the requirements of our now Constitution, giving a trial by jury of twelve freeholders to ascertain the compensation, if required by either party, and also the provision of the new Constitution, that property shall not be taken by an internal improvement company, until just compensation has been paid, or secured to be paid, to the owners; and to give the county court jurisdiction instead of the circuit court. See ch. 114 of acts of 1875, p. 204.

This general law of Virginia, for the condemnation of lands for public purposes, was construed by the Court of Appeals of Virginia, to require notice to be given only to the tenant in possession of the land to be taken, as the visible owner, thougli he was not the real owner. See Supervisors of Culpepper v. Gorrell et al., 20 Gratt. 512, though the statute used the words “ tenant of the freehold.”

Besides this general law, and the mill law before referred to, the Code of Virginia contained a special law ^or ^13 establishment of county roads, which we may designate as the road law of Virginia.' It is found ju the 52d chapter of the Code of 1860 beginning at §6 ^ 298. It directs that upon application of any person to the county court to have a road or landing therein established, or altered, the court shall direct a commissioner, or viewers, to make a view of the proposed road, and report; and if the opinion of the court be not against establishing, or altering, the road or landing, “it shall award process to summon the proprietor, or tenants, on which it will lie, it established, to show cause against the same” §8, p. 298.

If the court has enough before it to enable it to fix a just compensation to the proprietors and tenants, and they are willing to accept, what it deems just, it may determine the matter without a writ of ad quod damnum. See §9. But the writ shall be awarded, if desired by any proprietor or tenant, or if the court see cause for awarding the same. See §10. After the returning of the inquest, or verdict of the jury, the court shall determine, whether the road or landing shall be established, or altered, as proposed. See §13. And “when the road is established, or altered, the county shall be chargeable with the compensation to the proprietors or tenants.” See §15.

This provision, it will be observed, is very different from the jirovision about the payment of the ascertained compensation, either in the mill law, or in the general law of Virginia, for the condemnation of land for public uses.

The mill law provides, that “the applicant, to whom leave to build a dam has been granted, shall, upon paying to the several parties entitled thereto the compensation so ascertained, become seized in fee simple of the land circumscribed by the jury, and be then authorized to proceed according to such leave.” See Code of Virginia of 1860, cli. 63 §7. And the Court of Appeals of Virginia decided in Anthony et al. v. Lawhorne, 1 Leigh , that the court under this act had nothing to do with determining, who was the person entitled to this compensation; but that th.e applicant l\ad to determine this at his own risk, and until he paid the money to the person entitled to it, he acquired no rights by the order oí the court granting him leave to build a dam.

On the contrary under the general law of Virginia for condemning lands for public purposes, the law expressly provided, that the court, after the condemnation of the land and the ascertainment of the just compensation, should, after enquiry by a commissioner ot the court, an order of publication made requiring all persons to appear before him, that their respective claims might be passed upon, determine who is entitled to this just compensation, and make such disposition of money paid into court, as may seem to it right. See Code of Virginia of 1860, ch. 56, §16, p. 325-326.

But the road law now under consideration, as I uu-derstand it, simply provides, that the just compensation ascertained shall be a charge upon the county, to be paid to the party entitled to it, precisely as any other charge on the public treasury of the county is to be paid; and if not paid, to be enforced against the county, just as any other legal charge against the county is to be enforced.

The language of the 15th section of ch. 52 of Code of 1860 p. 299 is, “when the road or boundary is established, or altered, the county shall be chargeable with the compensation to the proprietors or tenants.” Understand the words “ to the proprietors or tenants ” not to designate the party, entitled to charge the county with the compensation, but to qualify the words, “ compensation ” only, and to designate what compensation is meant, that is, the compensation, which had been assessed in the proceedings, in which the proprietor or tenant was the party. For this law like the mill law and the general law must necessarily be interpreted, to require no one to be notified, or made a defendant, in the pro-cecding, but the proprietor or tenant, that is, as cons trued by the Court of Appeals of Virginia, the “tenant ju p0wjessi0u asThe visible owner of the land.”

The provision above cited in the mill law and general law of Virginia shows clearly, that the legislation, which it required for convenience, that no one but the “tenant in possession as visible owner” should in any case be notified, or formally be' made a party defendant, yet it clearly contemplated, that some other person might be entitled to the compensation fouud iu the proceeding, called, as it might well be in one sense, compensation to the tenant, he being the only party defendant. That this compensation might not belong to him, and was not in every case intended to be paid to him, is shown by the mill act requiring this compensation to be paid by the applicant to the party entitled at his own risk, though it had been assessed formally to the tenant, and this general act, though the compensation had been formally assessed to the tenant; or visible owner, yet expressly required the court afterwards to ascertain what persons are entitled to it, and to pay it to them, and not to the tenant.

It seems to me, therefore, that the 15th section of ch. 52 of Code of 1860, p. 299, must be interpreted, as making the county chargeable with this ascertained compensation, to be paid to the party entitled, and not necessarily to the tenant in possession as visible owner. But it may be said, that section 9 of this act, p. 298, provides, that “ upon the return of the process executed on these tenants, if the court has enough before it to enable it to fix upon a just compensation to the proprietors, or tenants, and they are willing to accept what is deemed just, they may determine the matter without a writ of ad quod damnum; ” and that it is a necessary implication from this language, that this just compensation must be paid to such tenant, or visible owner.

But this, it seems to me, has already been answered, and ife further refuted by the very next section, §10, which provides: “ but the writ shall be awarded, if do-sired by the proprietor, or tenant, or if the court see cause for awarding the same.” If the tenant is willing to accept, what the court deems a just compensation, how could the court “ see cause for awarding a writ of ad quod damnum?” unless this cause was a knowledge or belief that some other person besides the tenant, or visible owner, had an interest in the property, and would be entitled to the whole, or a part, of the compensation? If the court supposed this, they would see cause for awarding the writ, though the tenant was willing to accept what the court deemed just.

And if this was brought to the knowledge of the court, it ought to award the writ. Its failure to do so would not render its order establishing the road illegal; but if the party really entitled to the compensation agreed on was not the tenant, it might necessitate the court at a future time to award the writ, as the parties entitled to receive the whole, or any part, of the compensation would have a right, at any future time after the establishment of the road, to demand of the court, on proving himself so entitled, a writ of ad quod dartinum to ascertain his compensation, unless he had authorized the tenant to agree with the court on the compensation. The tenant in possession as visible owner, is treated by the law, in all proceedings on the part of the public to acquire title to, or in, the property, as the proper party, or as representing the proper party; but he is not regarded as the proper party necessarily to receive the compensation, and therefore not the proper party necessarily to fix, or agree upon; the amount of the compensation, except so far as such agreement may operate to confer title on the public to, or in, the property.

But so far as the payment of this just compensation is concerned, or the amount of it is to be fixed, this agreement is not necessarily obligatory on the party really entitled to the compensation. He may adopt it, and charge the county with the amount agreed upon, or he may, if he has not either expressly or impliedly authorized its making, repudiate it, and demand afterwards a writ of a<^ 9.u°d damnum. If the tenant, or visible owner, agrees V give to the public the right of way without compen-sati0n} the party, really entitled to compensation, would £or pjce reason pave a right, after the establishment oí the road, to demand his writ of ad quod damnum.

This.being then the law of Virginia, when this State came into existence, our Legislature adopted a law for the establishment of county roads essentially different from this road law of Virginia.. See acts of 1863, ch. 120, p. 179, and Code of West Virginia? ch. 43, §35, et seq. p. 274. '

By the provisions of our Code a person, desiring the establishment, or alteration of a county road petitioned the board of supervisors therefor, who appointed viewers to view the ground, and make report; and unless on this report they abandon the work, they appointed a day for the hearing of parties interested, and gave notice to the proprietors, or tenants, of the property to be taken, or injured, to show cause against 'the same. The 37th section of ch. 43, p. 275, thus provides that “at anytime, if the supervisors have enough before them to ascertain what would be a just compensation to the proprietors and tenants, and such proprietors and tenants are willing to accept, what the board deems just, said supervisors, upon such acceptance being reduced to writing and signed by the proprietors and tenants, may determine to undertake the work.-”

Thus far the law is almost identical with the road law of Virginia, above considered; but while the road law of Virginia provides, that if desired by the proprietor, or tenant, or the court saw cause for the same, the county court was directed to issue a writ of ad quod damnum, the Code of West Virginia provides, not for the issuing of a writ of ad quod damnum in any case by the board of supervisors, but says: “If they decide in favor of the same, and the compensation to be paid to any proprietor, or tenant, be not fixed by agreement, they shall order proceedings to be issued in their corporate name, before the circuit court of the county, pursuant to tiie 42d chapter, to ascertain what will be just compensation to such proprietor, or tenant, in the premises; and the board shall lay a sufficient levy for the purpose; and when such compensation shall be so ascertained, it shall bé at the option of the supervisors to pay the same, according to the eighteenth section of said chapter, or co abandon the proposed undertaking.” See $38 ch. 43, p. 275.

The 18th section of ch. 42, which was to be followed in the payment of the compensation, provides, that “at any time within twelve months after the report has been confirmed, and ordered to be recorded, the sum ascertained, with legal interest from the date of the report till payment, may be paid by applicant to the persons entitled thereto, or into the court. Upon such payment, the title to that part of the land, so paid for, shall be absolutely vested in fee simple, except that in case of a turnpike, or other road, (not including however a rail road) the right of way only shall be so vested. Sée p. 264.

• This chapter 42 is the general law of West Virginia for the condemnation of lands for public uses; and under this law the board of supervisors were directed to proceed to ascertain the just compensation. When the board of supervisors so proceeded, they were required, as we have seen, to state in their application to the circuit court, not only the owners of each parcel of land, and the nature of their respective interest, but also all liens on such land by judgments, deeds of trust or otherwise, and also all conflicting claims to the land to be condemned. And of such application they were required to give ten days notice to all the owners of the lands, and to all such claimants, and persons holding liens.” See ch. 42 $5 and 6, p. 260, 261.

And the 9th section, p. 262 provides: “the applicant, (the board of supervisors Avhen a county road was to be opened) if it has stated in its application the sum of money it was ready to pay to any owner, and such owner not being under disability consents to accept the same, an(j there be no lien on, or conflicting claims thereto, the cour£ may or<Jer, that on such payment being made, the interest of the owner shall be transferred.” Otherwise commissioners were to be appointed to ascertain the just compensation.

It is obvious under this road-law, as contained in our Code, though the statute did provide in the words of the Virginia road law, that the board without any ascertainment. of the compensation might undertake the work, it the tenants and proprietors were willing to accept, what the board of supervisors deemed just; and though this is spoken of as an agreement fixing the compensation to be paid to any proprietor or tenant, see p. 275, yet the law expressly provided, that the compensation was to be paid to the parties entitled, after an investigation by the court, and when before the circuit court, the proprietor or tenant was not permitted to waive an ascertainment of the amount of the compensation, if there were other claimants of the land, or if there were lions on the land, all of whom had to be made parties. See Code of West Virginia, p. 264, 265.

• It is clear therefore, that the agreement of the tenant, or visible owner, with the board of supervisors of the amount of compensation, or the waving; by such tenant of any compensation, though it would have authorized the board to establish the road, yet it could not have been binding on any person, other than the tenant, or visible owner, so far as it undertook to determine the amount of the compensation, or so far as it undertook to waive all compensation.

Syllabus 3. The board of supervisors having been abolished, it became necessary, that in the establishment of county roads another road law should bo enacted in lieu of this road law of our Code. This was done by the acts of 1872-3, ch. 194, commonly known as our road law. Its provisions were substantially the same as the road law in the Code of Virginia of 1860, eh. 52, before construed. It is generally a literal copy of the Virginia road law; and the slight change in the wording of a portion of it, -» _ . . . , . and some additional provisions m our law, m no manner affect the meaning of the act in reference to the subject which we have discussed.

It provides only for the resummoning of the proprietors, or tenants, of the lands, on which the road will be, if established. Acts of 1872-3 ch. 194 §36 p. 573. It provides, as did the Virginia road law, that if the proprietors and tenants are willing to accept, what the county court deems just, the court may thereupon determine to undertake the work ; and if the compensation to be paid to any proprietor, or tenant, be not paid by agreement, the court shall award writ of ad quod damnum. See. §§37, 38, pp. 573, 514.

The language here is copied from the road act in the Code of "West Virginia, for which our present road law is a substitute, except that in the circumstances, under which our law now requires the county court to issue a writ of ad quod damnum, the Code of West Virginia requires the board of supervisors to institute proceedings in their corporate name before the circuit court to ascertain the just compensation.

If we were only to look at the 37th and 38th sections of ch. 194 of acts of 1872-3, the,natural inference to be drawn would be, that no one but the tenant in possession as visible owner was to be paid any compensation ; but the language, from which we would draw this inference, is copied from the Code of West Virginia ch. 43 §§37, 38, p. 275; and from this law of the Code, it is obvious, that inference could not be drawn, as by subsequent provisions for ascertaining the just compensation, as we have seen, that law expressly provided for the summoning of not. only the proprietors of the land, but all claimants thereto, and all persons having liens on the land, and for an ascertainment, after the condemnation of the land, of the persons entitled to the compensation special provision was made. See Code of West Virginia ®h. d2 Ü'b 6, 23, pp. 261, 265.

Our road law of 1872-3 also provides, (see act of 1872-3 ^42^ i 94^ p. 575) : “that when the road, or landing, is established, or altered, the county shall be chargeable with the compensation to the proprietor or tenant.” This language is copied from the road law contained in the Code of Virginia of I860; and its true meaning,, in that Code was, as before stated, that the county should be chargeable to the persons entitled to the compensation as ascertained in the proceedings, to which the tenant, or visible owner, was the party. The same construction must be given to the words of our road law of 1872-3, not only for the reasons before stated, but for the reason, that this act was a substitute for the road act, ch. 43 of Code of West Virginia, and in it the words “compensation to the tenant” are frequently used in this sense, and not as meaning compensation, which must necessarily be paid to him, as we have shown.

Our conclusion therefore is, that under our road law, ch. 194 of acts of 1872-3, the only persons required to be summoned are the tenants in possession of the lands, to be taken, as visible owners; and then an order of the court can legally be made, if such tenants have been summoned, or voluntarily appear before the court, though neither the real owner, nor any other claimant or lienor, is before the court, that if the damages, or just compensation have been ascertained, when such tenants were before the court, by a writ of ad quod damnum, and the road established by the court, the county becomes chargeable witlf'this just compensation so ascertained, which may be'enforced, as any other liability against the county is enforced; that if the tenant in possession as visible ownerdias agreed with the county court on what is a justjeompensation, without a writ of ad’quod damnum had, such tenant is not the party entitled in whole, or part, to the compensation, that any party so entitled may, if he chooses, adopt and confirm this agreement and enforce payment of the eompcnstion agreed on, which is a charge against the county, or lie may repudiate such agreement, and ask for a writ of ad quod damnum, but such repudiation in no manner affects the right of the public to the useof the road, which has been before established as a public highway ; and if the tenant of the land as visible owner has appeared, and given his consent to the establishment of the road as a public highway without compensation, the court may thereupon legally establish the road without any writ of ad quod damnum, but the party entitled to the whole, or any part, of the compensation may either assent to what has been done, or he may ask for a writ of ad quod dam-num, but his action in no manner affects the rights of the public to the use of such road as a public highway.

Does this road act of 1872-3, when thus construed, violate the Constitution? Can the party really entitled to the compensation be thereby deprived of his property without just compensation in violation of the 9th section of our bill of rights? See Article 3, §9 of Constitution, acts of 1872-3, p. 6.

It is unquestionably true, that he may be, and indeed must be, in all cases deprived of his property taken for a county road, before he receives just compensation, as the law simply provides, that after the road has been established, the county shall be chargeable with the compensation. But it is well settled, that where property is taken by a State directly, or by a town or county under State authority by State authority, it is not essential, in order not to violate this provision of the bill of rights, that the law should provide for payment of the compensation, before the property is taken and actually appropriated. See Collison v. Hendricks, 15 Gratt. 244; Redford et al. v. Knight, 11 N. Y. 308.

The very wording of our bill of rights shows, that its framers so understood its effect. Its language is “private property shall not be taken, or damaged, for public use without just compensation ; nor shall the same be taken by any company incorporated for the purposes of inter-improvement, until just compensation shall have jh,een paid or secured to be paid to the owner.” It the county i,: chargeable with just compensation for property taken by it for public uses, there is no necessity, that •the statute authorizing the taking of the property should provide for the payment in advance of the just compensation ; it is sufficient, that it provides lor its payment afterwards. And this our road law does, when it makes the county chargeable therewith.

Does this act deprive ajny person of his property without due process of law, in violation of our bill of rights? See Article 3, $10 of Constitution, acts 1872-3, p. 7.

There is much difficulty in defining the true meaning and operation of this provision of our bill of rights; and I shall not attempt this task. It docs not require, that a person’s right of property should in no case be affected by a judicial proceeding, unless he has been first personally served with process. The familiar cases of attachment proceedings, and the sale of lands by the statute for the non-payment of taxes are instances, where a person’s property is disposed of in proceedings, in which he is given no personal notice. See Matter of Empire City Bank, 18 N. Y. 215.

Without undertaking to decide in what cases personal service of notice may be dispensed with, we can safely lay down this rule, that it may be dispensed with in all such summary proceedings, as did not require it at common law, and in all such cases as it was authorized to be dispensed with, or some- substituted notice adopted by statute laws in force prior to the adoption of our bill of rights. All such summary proceedings must be regarded as understood under “ due process of law.” See Rockwell v. Waring, 35 N. Y. 315.

This provision of our bill of rights was adopted after the formation of this State, it not being in the Constitution of Virginia prior thereto. The condemnation of land for public uses, after notifying only the tenant in possession, as visible ownei’, was a proceeding authorized by statute law long prior to the adoption of our bill of rights. It has been an established and recognized mode of proceeding for more than a century. It cannot therefore be regarded as depriving a party of property without due process of law. In adopting this provision of our Constitution, we cannot be regarded as prohibiting proceedings, long recognized by the Virginia courts as proceedings under “ due process of law.”

While the Court of Appeals of Virginia has never been called upon to pronounce on the constitutionality of their road law, they have considered and upheld the constitutionality of both their mill law and their general law for the condemnation of private property for public uses. See Pitzer v. Williams, 2 Rob. 241; The Supervisors of Culpepper v. Gorrell, 20 Gratt. 515. And these acts have in them all' the provisions supposed to be objectionable in our road act.

I conclude therefore that it is not unconstitutional.

The next inquiry is: Were there such irregularities in the proceedings in the county court of Kanawha as to render its order of November 2, 1875, establishing this as a county road a mere nullity?

It is well established as a general rule, that if a court, which has jurisdiction of the subject matter, as the county court of Kanawha had, and also of the person, as that court had by the voluntary appearance of the tenant of the land before it, exercises its jurisdiction and pronounces in judgment, such a judgment cannot be treated as a nullity, or disregarded collaterally in any other suit because of irregularities in the proceedings. Such irregularities can as a general rule be only corrected in the suit by appeal, or otherwise. Ex parte Kellog, 6 Vt. 509; Egerton v. Hart, 8 Vt. 208; Harvey v. Tyler, 2 Wall. 328; Voorhees v. Bank of the United States, 10 Pet. 449.

When a court exercises in summary proceedings an extraordinary power under a special statute prescribing course, it has hccn held, that those facts, which give jurisdiction to the court, ought to appear, in order to gpow that its proceedings are coram judice. See Thatcher v. Powell, 6 Wheat. 119. In Seibert v. Linton, 5 W. Va. 57, this court held, that an order of the board of supervisors establishing a county road was a nullity, when the board, without the tenant of the land agreeing to accept the compensation fixed by the viewers, ordered the establishment of the road, and subsequently ordered the payment to the tenant of the amount of compensation fixed by the viewers.

The law then in force, if the tenant did not agree to accept what the board of supervisors deemed a just compensation, did not authorize the board to establish a county road, till they had in their corporate capacity instituted proceedings in the circuit court, to ascertain the just compensation, and the circuit court, after its ascertainment then had, certified it to the board of supervisors. This was an irregularity, which affected the jurisdiction of the court, its right to establish the road.

There are also cases in New York, where in proceedings to condemn land the court has held, that certain irregularities, which affected the jurisdiction of the court, have been held to render its decisions nullities. It is unnecessary to review these New York decisions, as they are in conflict with one another. See Fitch v. Com’r of Kirkland, 22 Wend. 132; Tucker v. Rankin, 15 Barb. 471; Stewart v. Wallis, 30 Barb. 344.

But when irregularities in proceedings to condemn lands have occurred, the Virginia Court of Appeals applied the same rules with reference to the waiving of irregularities, not affecting the jurisdiction of the court, which occurred in the case, as they apply in all other causes. Bernard v. Brewer, 2 Wash. 77.

We need not determine accurately the rule with reference to the effect of irregularities in eases of this description, for there were certainly in the establishment of this road no irregularities affecting the jurisdiction of the court. In fact there were no irregularities, which would have vitiated the proceedings in an appeal in the cause, much less in a collateral proceeding.

The order of the county court of November 2, 1875, shows on its face, that every requirement of the road law was complied with, when this road was established. It is true, that the order shows, that the petition for the road was filed and a report immediately made by the viewers appointed by the court, and that, without formally summoning the proprietor of the land, the court proceeded to establish the road; but the order further shows, that the land was all owned by a single proprietor, who appeared without being summoned, and in writing consented to the establishment of this road as a public highway without any compensation, and that thereupon, evidence being produced, which satisfied the court of the propriety of so doing, the court at once ordered the establishment of the road, and appointed an overseer thereof.

In all this there was no irregularity. They could have acted still more summarily, had they thought proper so to act, without affecting the validity of their action. ’With the consent of the proprietor they could have established the road legally without appointing any viewers or having any report. See Clarke v. Mayo, 4 Call 374.

The fact, that there is in this order a misnomer of the tenant of the land, it being “The West End Extension Company” instead of “The West Charleston Extension Company,” does not make the order irregular, as the clerk certifies, that the written consent of “The West Charleston Extension Company,” referred to in the order of the court, was then filed with the papers of the proceedings, though it has been since lost; and the answer of Lewis Summers^ filed in this cause, admits, that Walker was before the county court, and gave his consent to the establishment of this road; and the record shows, that ho was authorized to give such a consent tor The o 'West Charleston Extension Company.

Certain questions have been argued before us, which js unnecessary for us to determine. The appellants insist, that the order of the county was a nullity, because the absolutely necessary parties to it were not before the court. We however think otherwise. They insist, that it this were so, they can assail the validity of the order in this collateral proceeding; and they refer to Cooper v. Reynolds, 10 Wall. 316; Mosely v. Cocke, 7 Leigh 226; Freeman on Judgments §141; Shrewsberry v. Roylston, 1 Pick. 106; Irvin v. Smith, 17 Ohio 239; Webster v. Reid, 11 How. 437; Downes v. Fuller, 2 Metc. 135; Bissell v. Briggs, 9 Mass. 462; Borden v. Fitch, 15 Johns. 121. On the other hand the counsel for the appellees insist, that there are many cases, where judgments bind those not parties : as proceedings in rem, appointments of personal representatives, probate of wills, proceedings by commissioners of school lands, and especially judgments establishing highways; and that whether the judgment of the county court be right, or wrong, it must stand, till set aside by the court, which rendered it, or till it is reversed; and they refer to Fisher v. Bassett, 9 Leigh 119; Cox et al. v. Thomas’s adm’r, 9 Gratt. 223; Hutchison, sheriff, adm’r v. Pridely, 12 Gratt. 85; Baylor v. Dejarnette, 13 Gratt. 152; Ex parte Ball & Satterwhite, 2 Gratt. 589; Rose v. Hensley, 4 Cranch 241. They also refer to acts of 1872-3 ch. 194 §31 which declares that any road, worked as a public road under the directions of a surveyor of roads, must in all courts and places be deemed a public road.

As in our judgment all the necessary‘‘ parties were before the county court, when the order establishing this road was made, and it was legally established, it is of course unnecessary to determine, whether in this case this Court would, ór would not, regard it as a public road, had these important facts not been proven.

The question as to whether Lewis Summers, claiming as lienor for the purchase money of the land, has a right ¡ to just compensation, when a portion of this land was taken for a county road, remains to be decided. The counsel for the appellant insist, that he has, and that this Court so decided in effect in the case of Walker v. Simmers et al., 9 W. Va. 533.

In this case it appeared, that'jWalker had laid 'off on a map a large number of streets and alleys on the land purchased of Summers. These streets were almost entirely unopened, when Laidley, the trustee, advertised this land for sale to pay the unpaid purchase money due Summers, defendant. Walker, the plaintiff, insisted in that suit, that the trustee in selling the land should be required to sell the same by lots laid down on said map, paying respect to the streets and alleys on this map; and that he should not be permitted to sell this land in gross, or by the acre, paying no respect to the streets and alleys laid out od the map. The court below permitted the trustee to sell the land by the acre, or in gross, without respect to these streets and alleys on the .map; and this decree of the court below was approved by this Court. Tne county of Kanawha was not a party to that suit; and the question, which has been discussed in this case, was not considered by the court in that case.

The statute law of West Virginia, by requiring all lienors to be summoned, seems to assume, that they may be entitled to a portion of the compensation for lands, taken for public uses, in other cases than the establishment of a county road; but there is no such assumption in the Code of Virginia, as lienors are never summoned by the Virginia law in any case. But the opinion of either Legislature on the question whether a lienor has a right to any compensation, when the land is taken for a county road, can have no weight in the decision of the question. It is a judicial question to be decided by the courts. The Legislature could not under the Constitution direct, that the compensation for the fhe ^an<^ taken should be paid to a lienor, wbo did not have a. right to such compensation, nor could it direct, that sp0ü^ci pe paj¿| to some other person, if the lienor pac] a ^pt to sucp compensation. The question, so far as I know, has not only not been decided, but it has never been brought before the courts. I express no opinion on the subject, as the question is not raised by the record in this case.

The only other question raised by the record is: Was ■ this road ever legally closed ?

Syiiajms 4. The county court of Kanawha, which was authorized. by the law to close, or- discontinue, this road, refused on ^ an application to discontinue this road. Its discontinu-; ance however was ordered by W. McCraig, the surveyor. The 21st section of our road law, ch. 194, acts of 1872-3, p. 567, authorized the surveyor to change the county road without the consent of the owner, provided such change does not increase the length, or grade, or require more work to keep the road in repair, or place the same on worse ground than it was before, or render the road worse in -any respect than it was before such change. But under this sectien the surveyor has no right to discontinue a road, or any portion of a road, entirely, without opening another in lieu of the road discontinued, merely because in his judgment another public highway established will answer for public uses in lieu of the discontinued portion of the road. And this is what the surveyor has attempted to do in this case.

Pennsylvania avenue, which the surveyor directs shall be used as a public road in lieu of the portion of this road, which he discontinued, was a public road running at right angles to the discontinued road, and terminating at a point probably a mile distant from the termination of the 'road, he attempted to discontinue. His discontinuance of this road was unauthorized by law, and inoperative therefore. My conclusion therefore is, that this road was legally established as a public road, and has never been legally discontinued; that the threatened obstruction of it by Lewis Summers was properly enjoined by the circuit court of Kanawha, at tlie instance of the- Keystone Bridge Company, as the right of the public to the use of this highway was clear, and the threatened obstruction operated a special injury to the Keystone Bridge Company, permanent in its character and serious in its nature, reaching to the ■ very substance and value of its toll bridge.

The circuit court of Kanawha therefore did not err in its decree of June 1, 1877, refusing to dissolve this injunction ; and its action must be approved and affirmed ; and the appellee, The Keystone Bridge Company, must recover of the appellant, Lewis Summers, its costs expended in this court, and $30.00 damages; and the cause must be remanded to the circuit court of Ka-nawha to be further proceeded with, according to the principles laid, down in this opinion, and further according to the principles governing courts of equity.

The other Judges concurred.

JudgmeNt Affirmed,