A & M PROPERTIES v. Norfolk Southern Corp.

• Decision Date: 15 July 1998
• Docket Number: No. 24744.,24744.
• Citation: 506 S.E.2d 632,203 W.Va. 189
• Court: West Virginia Supreme Court
• Parties: A & M PROPERTIES, INC., Plaintiff Below, Respondent, v. NORFOLK SOUTHERN CORPORATION and Norfolk Southern Railway Company, a Subsidiary of Norfolk Southern Corporation, Defendants Below, Petitioner.

506 S.E.2d 632

203 W.Va. 189

A & M PROPERTIES, INC., Plaintiff Below, Respondent, v. NORFOLK SOUTHERN CORPORATION and Norfolk Southern Railway Company, a Subsidiary of Norfolk Southern Corporation, Defendants Below, Petitioner.

No. 24744.

Supreme Court of Appeals of West Virginia.

Submitted May 13, 1998.

Decided July 15, 1998.

Dissenting Opinion of Justice Starcher September 30, 1998.

Tracey B. Dawson, Steptoe & Johnson, Martinsburg, West Virginia, Attorney for the Respondent.

Clarence E. Martin, III, Martin & Seibert, Martinsburg, West Virginia, Attorney for the Petitioners.

McCUSKEY, Justice:

This certified question comes before the Court upon the petition of Norfolk & Western Railway Co., defendants in a suit in the Circuit Court of Jefferson County. Respondent had commenced a civil suit in the Circuit Court of Jefferson County seeking declaratory judgement that it had obtained a prescriptive easement across active railroad trackage owned in fee simple by the Petitioner, thereby creating a private railroad grade crossing. The circuit court allowed Petitioner's motion to dismiss, in which Petitioner averred, that, as a matter of law, prescriptive easement could not lie against the trackway of a railroad. Respondents filed a motion to alter or amend the judgement, or in the alternative to certify the question. In response to this motion the circuit court altered its answer, allowing prescriptive easement to lie against the trackway of a railroad and certified the question to this Court. For the reasons enumerated below, we answer the certified question in the negative.

I. FACTUAL AND PROCEDURAL HISTORY

A & M Properties, Inc. (A & M) is the owner of a tract of property in Shepherdstown District, Jefferson County, West Virginia. The Norfolk & Western Railway Co., (N & W) a subsidiary of Norfolk Southern Railway Co., owns a sixty-six foot wide strip of real property running through Shepherdstown District, upon which is laid the trackbed of the Norfolk & Western Railway and which is, for a segment of its length, adjacent to the tract owned by A & M. A & M purchased the aforementioned tract on May 14, 1990, and for a period after that time, along with its various invitees and licensees, made use of a dirt road which extended across the tracks of the Norfolk & Western Railway Co.

A & M claimed that it made use of the crossing over N & W's tracks as a matter of right. A & M also claimed that the railroad had notice of its use from the existence of the crossing and the position of certain buildings on the tract. As N & W had never ordered A & M to desist, A & M's belief was that it had implicit permission from N & W to continue to use the crossing.

In April of 1995, the events which gave rise to this suit transpired. N & W prevented the further use of the grade crossing by A & M by placing a gate across the road on either side of the tracks. Later, the entire portion of the crossing which was on N & W's property was removed by N & W personnel.

Subsequently, A & M brought suit against N & W in the Circuit Court of Jefferson County. A & M alleged that the use of the grade crossing was open and notorious, continuous and uninterrupted for a period of five years on its part, and for more than ten years when the use of the crossing by its predecessors in title was tacked; thus, A & M had established a valid prescriptive easement to cross the track of the Norfolk & Western Railway Co. in the location of the grade crossing. A & M also asked for $10,000.00 in damages as compensation for its inconvenience, deprivation of access, property damage, and additional costs resulting from the destruction of the grade crossing.

N & W made a motion to dismiss alleging that a prescriptive easement would not lie against a railroad trackway, due to the functional equivalence of a railroad to a public highway. The Circuit Court of Jefferson County granted N & W's motion to dismiss. However, the Circuit Court of Jefferson County then granted A & M's motion to alter or amend the judgment and certified the following question to this Court: "Whether West Virginia law provides a cause of action for prescriptive easement against property owned in fee simple by a railroad." The facts of this case, however, show that the easement sought by plaintiff was made not merely against property owned in fee simple by a railroad, but upon the actual trackway of the railroad. Therefore, answering this question in the context of these particular facts, it is the opinion of this Court that it does not.

II. STANDARD OF REVIEW

The standard of review to be applied in reviewing a certified question was recently set forth in Syllabus Point One of Gallapoo v. Wal-Mart Stores, Inc. 197 W.Va. 172, 475 S.E.2d 172 (1996), wherein we held that "[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo."

III. DISCUSSION

It is axiomatic to state that the Constitution of West Virginia is the supreme law of this State. In that august document we find language to the effect that "[r]ailroads heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways...." Constitution of West Virginia, Art. XI, § 9. This was no innovation by our founders, for, as Lord Chief Justice Hale noted more than three hundred years ago in the legal treatise "De Portibus Maris", "if a man set out a street in or near a building on his own land, it is no longer bare private interest, but is affected by a public interest." Lord Chief Justice Hale, "De Portibus Maris", 2 Hargrave's Law Tracts, 78 (Hargrave, ed.) quoted in Laurel Fork & Sand Hill Railroad Co. v. West Virginia Transportation Co., 25 W.Va. 324, 336 (1884). This ancient doctrine regarding construction of private thoroughfares for public use, no less relevant now than when it was first enunciated, is the hinge upon which the issue presented by this case turns.

Railroads in West Virginia have traditionally been recognized as uniquely situated corporations. No less than five sections of Article XI of the Constitution of this state deal with railroads. The special status of railroads as quasi-public corporations was foremost in the minds of the framers of our Constitution. Only twelve years after the adoption of our current Constitution, this Court addressed its provisions concerning railroads and found that the result of the combination of these provisions was that railroads had the status of a quasi-public corporation. Laurel Fork & Sand Hill Railroad Co. v. West Virginia Transportation Co., 25 W.Va. 324 (1884).

As recently as 1982, this Court continued to state that railroads have a dual public-private status. In that year, Justice Neely provided a clear exposition of the traditional current of thought regarding the status of railroads when he stated that despite the fact that they were private corporations "railroads are not viewed strictly as private corporations since they are publicly regulated common carriers. Essentially, a railroad is a highway dedicated to the public use. This dedication imparts to the railroad the status of a quasi-public corporation." Marthens v. B & O Railroad Co., 170 W.Va. 33, 37, 289 S.E.2d 706, 711 (1982) citing Eckington & Soldiers' Home R. Co. v. McDevitt, 191 U.S. 103, 24 S.Ct. 36, 48 L.Ed. 112 (1903); United States v. Trans-Missouri Freight Assoc., 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897).

It is the opinion of this Court that a departure from the plain and unambiguous language of our Constitution and from over a century of precedent is not advisable. Therefore, this Court finds that a railroad is, as the Constitution says, a "public highway." Constitution of West Virginia, Art. XI, § 9. Having acknowledged this to be true, application to the case at bar is clear. It has been settled law in this State for almost a century that "[t]he public easement in the public highways ... dedicated to the use of the public by individuals ... cannot be lost to the people by ... the acts of individuals." Syllabus point 4, Ralston v. Town of Weston, 46 W.Va. 544, 33 S.E. 326 (1899). Here, despite A & M's prior use of the crossing, they are not entitled to have continued rights to use it as they may not appropriate the property of a quasi-public corporation which is used in the public interest by "prescription, adverse possession under the statute of limitations, or equitable estoppel, as the people cannot be deprived of their sovereign rights in any of these ways." Bauer Enterprises v. City of Elkins, 173 W.Va. 438, 317 S.E.2d 798 (1984); Huddleston v. Deans, 124 W.Va. 313, 21 S.E.2d 352 (1942); Syllabus Point 5, Ralston v. Town of Weston, 46 W.Va. 544, 33 S.E. 326 (1899).

Respondent cites Dulin v. Ohio River Railroad Co., 73 W.Va. 166, 80 S.E. 145 (1913), as controlling authority for the proposition that a prescriptive easement may be created within a railroad right-of-way. There are major factual distinctions between this case and Dulin. Dulin, for example, involved a mere easement to the railroad to cross the land of a dominant estate, not, as in this case, a trackway owned in fee simple by the railroad. The successors in interest of the grantor of the easement to the railroad subsequently claimed they had cultivated a small strip within the granted easement for the requisite number of years to establish title by adverse possession. This Court in Dulin found against these plaintiffs, and explicitly noted that they had not adversely possessed the land in question as their "cultivation of a portion of the right-of-way land was not necessarily hostile or adverse to the railroad company's right." Dulin, 73 W.Va. 166, 172, 80 S.E. 145, 147. Judge Williams, writing for the majority in Dulin, noted parenthetically that "Judge Miller and myself think that the doctrine of adversary possession does not apply to a railroad company's right of way, and the other members of the court hold that it...