Baker v. Hamilton

• Decision Date: 16 June 1959
• Docket Number: No. 11014,11014
• Citation: 144 W.Va. 575,109 S.E.2d 27
• Parties: Charles L. BAKER v. Ray HAMILTON and Sally Hamilton.
• Court: West Virginia Supreme Court

Page 27

109 S.E.2d 27

144 W.Va. 575

Charles L. BAKER v. Ray HAMILTON and Sally Hamilton.

No. 11014.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1959.

Decided June 16, 1959.

Syllabus by the Court

1. The findings of a commissioner in chancery, on questions of fact, should generally be sustained unless not warranted by any reasonable view of the evidence and such findings are entitled to peculiar weight in an appellate court when they have been confirmed by the decree from which an appeal has been granted.

2. Mere use will not make a road a public road although such use is with the knowledge and consent of the landowners, in the absence of some action amounting to an acceptance of the road as such by public authorities.

3. In order that a road, by virtue of Section 3, Article 1, Chapter 17, Code, 1931, shall be conclusively presumed to be established as a public road, it must have been used by the public for a period of ten years or more and public moneys or labor, duly authorized by a public agency or official empowered to maintain, repair or accept such road, must be expended on it; and the occasional expenditure of public money or the occasional performance of public labor on such road, which is not so authorized, even though such road has been used by the public for ten years or more, does not satisfy the requirements of the statute or render effective the statutory presumption of its establishment as a public road.

Crockett, Tutwiler & Crockett, Welch, for appellants.

L. R. Morgan, Iaeger, Sidney L. Christie, Keystone, for appellee.

HAYMOND, Judge.

This is a suit in equity instituted in the Circuit Court of McDowell County in July 1956, in which the plaintiff, Charles L. Baker, the owner of an undivided one-half interest in fee simple in a tract of 22 acres and the occupant of the dwelling upon it in that county, seeks to enjoin the defendants, Ray Hamilton and Sally Hamilton, from hauling coal in trucks upon and using a narrow and unimproved road located upon the land of the plaintiff. The road in question, sometimes referred to as the Turkey Branch Road, extends from a public highway for a distance of approximately one mile along and near a small stream known as Turkey Creek or Turkey Branch. By decree entered May 15, 1958, the circuit court permanently enjoined and restrained the defendants from hauling coal in trucks on and using the road through the land of the plaintiff and entered judgment for costs against the defendants. From this decree this Court granted this appeal and supersedeas on September 22, 1958, upon the application of the defendants.

The plaintiff contends that the road in question is a private road and that the defendants are not entitled to use it to travel upon and over his land. On the contrary the defendants insist that the road has been used by the public continuously for a period of more than ten years before the institution of this suit and that public moneys and labor have been expended on it and in consequence it is a public road by virtue of Section 3, Article 1, Chapter 17, Code, 1931, which provides in part that 'Any road shall be conclusively presumed to have been established when it has been used by the public for a period of ten years or more, and public moneys or labor have been expended thereon, whether there be any record of its conveyance, dedication or appropriration to public use or not.'

As the evidence does not show that the defendants have a right of way of necessity or have acquired an easement by grant or prescription over the land of the plaintiff, the sole question presented for decision is whether the road is a private road or a public road.

Upon the bill of complaint of the plaintiff and its exhibits and the answer of the defendants the circuit court referred the case to a commissioner in chancery to determine and report upon the question, among other questions which are not material to the decision of this case, whether the road was a public road or a private road which the defendants were entitled to use in the operation of their trucks for the transportation of coal over the land of the plaintiff.

Fourteen witnesses testified before the commissioner in behalf of the plaintiff and twelve witnesses testified before the commissioner in behalf of the defendants. The testimonyof most of these witnesses was that the road had been used for various periods which together totaled from 40 to 50 years by the public and by a small number of persons through whose property the road extended, and this evidence is sufficient to establish its use by the public for a period of more than ten years.

As to the expenditure of public moneys and the performance of public labor numerous witnesses who either knew the road or lived near it for periods of several years at various times, testified that to their knowledge no public moneys had been expended and no public labor had been performed on the road.

One witness produced by the plaintiff, who from 1941 to 1951 owned the property now owned by the plaintiff and who conveyed it to him, testified that on one or two occasions there was a scraper on the road but that he did not know why or by whose authority it was there or what use was made of the scraper. Another witness for the plaintiff, an employee of the State Road Commission for a period of 21 years and a foreman since 1944, testified that the road was not shown on any map or as part of the road system and that he was never instructed by his superiors to repair or maintain the road but that a grader was used on the road once or twice, perhaps three times, and that it was there at the request of people residing along the road. He did not, but some of his men did, operate the grader. He did not charge the work to that road or describe the work done by the grader. Another witness for the plaintiff, a grandson of a former owner of the property of the plaintiff, on cross-examination stated that on one occasion a scraper came up the road to scrape it but that his grandfather stopped those in charge and would not let them scrape the road. He did not know who sent the scraper or why it was sent. Another witness for the plaintiff testified that once between 1947 and 1956 when some people requested it, a scraper was on the road for about two hours and tore out some rocks at property along the road and that the wife of the property owner stopped those in charge of the scraper and told them to go back and not to tear up the road.

One witness produced by the defendants testified that the road was scraped once each year from 1933 to 1936, that it was also scraped practically every year for six or eight years, and that this was done by Mathias Cantrall. Cantrall, an employee of the State Road Commission who lived in McDowell County, did not testify, and the foregoing testimony of the witness was contradicted by a witness for the plaintiff on rebuttal who owned the land of the plaintiff from 1915 to 1939. He testified that he did not see any work done on the road by the County Court or the State Road Commission and that Cantrall did not scrape the road at any time during that period. Another witness for the defendants, an employee of the State Road Commission from 1941 to 1947, testified that he went on the road twice with a...