O'Brien v. Bd. Of Comm'rs Of Ohio County, (CC 511)

• Decision Date: 10 June 1935
• Docket Number: (CC 511)
• Citation: 116 W.Va. 404
• Court: West Virginia Supreme Court
• Parties: T. B. O'Brien v. Board of Commissioners of Ohio County

116 W.Va. 404

T. B. O'Brien

v.Board of Commissioners of Ohio County

(CC 511)

Supreme Court of Appeals of West Virginia.

Submitted April 10, 1935.

Decided June 10, 1935.

Highways

Section 20, chapter 112 (Acts 1921), providing that no roads lying within any incorporated town or city having a population of more than two thousand five hundred persons, except the National or Cumberland road through the city of Wheeling, shall be taken over by the state road commission, does not violate section 39, Article VI of the Constitution, inhibiting the legislature from passing local or special laws for "laying out. opening, altering and working roads or highways."

Case certified from Circuit Court, Ohio County.

Action by T. B. O'Brien against the Board of Commissioners of Ohio County. An amended declaration was sustained on demurrer, and the ruling certified for review.

Affirmed.

Edmund Lee Jones and McKee & McKee, for plaintiff. John D. Phillips, Wm. C. Piper and Nesbitt & Nesbitt, for defendant.

Litz, President:

The ruling of the circuit court, sustaining an amended declaration, on demurrer, has been certified to this Court for review under Code (1931) 58-5-2.

The action was brought by an abutting land owner to recover judgment against defendant, Board of Commissioners of Ohio County, for damage resulting to his property by removal of lateral support, in the improvement of the National or Cumberland Road, by the State Road Commission. The consideration of the ground of demurrer, that the defendant is not liable for the damages claimed, involves a brief history of the National or Cumberland Road and the pertinent constitutional and statutory provisions relating to public highways. The National or Cumberland Road, sixty-six feet wide and extending from a point on the Potomac River, near Cumberland, Maryland, through the State of Virginia, westward, was established and constructed by the United States under an Act of Congress of March 29, 1806, and subsequent federal legislation. Upon completion, it was ceded to the respective states through which it passed. That part lying in Virginia (which was confined to Ohio County), upon the formation of West Virginia, became a state road of the new dominion under the jurisdiction of the Board of Public "Works. By an Act of February 13, 1890 (chap. 10, Extra Session, 1890), the legislature conditionally transferred "the care and control" thereof to the Board of Commissioners of Ohio County, with "all the rights, powers and duties in relation thereto, belonging to the Board of Public Works." On November 25, 1891, the Board of Commissioners accepted the trust and assumed the care, maintenance and control of the road. In Robinson v. Board of Commissioners, 82 W. Va. 724, 97 S. E. 282, the board was required by mandamus to repair a portion thereof lying within the city of Wheeling. In the opinion of the Court, written by Judge Ritz, it is stated: "It will be observed from the history of this highway * * * that it is on a very different basis from, the ordinary county road. It was constructed by the National Government at a considerable expense, its promoters expecting that it would form a great highway or link connecting the peoples in what was then considered the far west, the Territory of Indiana and the State of Ohio, with those living in the more enlightened eastern states. After its construction settlements were established and grew into considerable towns along almost its entire length, and the subsequent prosperity enjoyed by these thriving commercial cities testifies to the wisdom of the promoters of the project. When the National Government, however, abandoned the policy of internal improvements the state of Virginia, so far as the road lay therein, took upon itself the burden of maintaining it, with the right to the National Government to use the same free of any tolls for such use, and this obligation upon the formation of the state of West Virginia devolved upon and was assumed by that state, until the board of county commissioners of Ohio county, in the year 1891, took upon itself the burden of performing this obligation. There can be no doubt that this was within the power of said board. This board by this act received a valuable piece of highway over which it had theretofore no jurisdiction. The assumption of the obligation to maintain the road, in consideration of this transfer to it, was a perfectly legitimate governmental function, and one which it cannot now avoid. The fact that the part of this road which it is complained is out of repair lies within the corporate limits of the city of Wheeling cannot relieve the board of county commissioners of the duty voluntarily assumed by it."

The Good Roads Constitutional Amendment, adopted in 1920, imposed upon the legislature the duty to "make provision by law for a system of state roads and highways con- necting at least the various county seats of the state, and to be under the control and supervision of such officers...