Brouzas v. City of Morgantown

• Decision Date: 25 November 1958
• Docket Number: No. 10944,10944
• Citation: 144 W.Va. 1,106 S.E.2d 244
• Court: West Virginia Supreme Court
• Parties: Christopher G. BROUZAS et al. v. The CITY MORGANTOWN, a Municipal Corporation, et al.

Page 244

106 S.E.2d 244

144 W.Va. 1

Christopher G. BROUZAS et al. v. The CITY MORGANTOWN, a Municipal Corporation, et al.

No. 10944.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 16, 1958.

Decided Nov. 25, 1958.

Syllabus by the Court.

1. A proceeding to obrain a declaratory judgment as to the validity of a municipal ordinance is a collateral attack upon such ordinance.

2. The findings of the council as a municipality in connection with the adoption of an ordinance constitute the basis for the adoption of such ordinance; and such findings are legislative in character and the adoption of such ordinance involves the exercise of a legislative function.

3. In the absence of fraud, collusion or other wrongdoing upon the part of the council of a municipality in the adoption of an ordinance, the recitals of the facts which constitute the basis for its enactment are conclusive when the subject matter of the ordinance is within the exclusive jurisdiction of the council.

4. In a declaratory judgment proceeding the court will not inquire as to the truth or the falsity of the facts upon which action of a legislative body is based when it has sole jurisdiction of the subject.

5. By Section 8(a), Article 2, Chapter 126, Acts of the Legislature, 1933, Regular Session, the council of The City of Morgantown is vested with power to 'lay off, vacate, close, open, alter, curb pave, and keep in good repair, roads, streets, alleys, sidewalks, crosswalks, drains and gutters' within the city for the use of its inhabitants.

6. 'Where, from the record of a municipal corporation, it appears that the council found to exist the facts necessary to confer upon it the power to act in a particular case, such finding cannot be questioned collaterally.' Point 4, syllabus, City of Avis v. Allen, 83 W.Va. 789 [99 S.E. 188].

H. William Largent, Geo. R. Farmer, Morgantown, for appellant.

Clark B. Frame, Minter L. Wlson, John D. Downes, Morgantown, for appellees.

HAYMOND, President.

This is a declaratory judgment proceeding instituted in the Circuit Court of Monongalia County on July 5, 1956, against the defendants, The City of Morgantown, a municipal corporation, Edwin C. Arkwright and Agnes J. Arkwright, in which the plaintiffs Christopher G. Brouzas and Florence K. Brouzas challenge the validity of an ordinance adopted by the Common Council of The City of Morgantown on March 17, 1953, vacating and annulling a portion of a public city street known as Cox Place. The real estate owned by the plaintiffs, though abutting on Cox Place, does not abut on that portion of the street vacated by the ordinance but a part of the real estate owned by the defendants Edwin C. Arkwright and Agnes J. Arkwright abuts on that part of the street vacated by it.

The case was heard upon the petition of the plaintiffs, the separate demurrers of the defendants which were overruled, the separate answers of the defendants, the replications of the plaintiffs to the separate answers of the defendants, and the evidence introduced in behalf of the respective parties.

By final decree entered July 29, 1957, the court held that challenged ordinance to be null and void, overruled the motion of the defendants Edwin C. Arkwright and Agnes J. Arkwright to dismiss them from this proceeding, and awarded costs in favor of the plaintiffs against all the defendants. From that judgment this Court granted this appeal December 16, 1957, upon the application of the defendant The City of Morgantown, which will be referred to in this opinion as the defendant.

The challenged ordinance, adopted by the council March 17, 1953, by a vote of eight members for and five members against its adoption, was introduced in evidence by the plaintiffs and is expressed in these terms:

'AN ORDINANCE VACATING, ABANDONING AND ANNULLING THAT PART OF COX PLACE, FORMERLY CALLED MORGAN PLACE, NOT USED FOR STREET PURPOSES IN THE HOPECREST ADDITION OF THE FIRST WARD OF THE CITY OF MORGANTOWN, MONONGALIA COUNTY, WEST VIRGINIA.

'Whereas, it has been determined by the Common Council of The City of Morgantown that part of a turn- around area adjacent to Lot No. 68 in the Hopecrest Addition to the First Ward of the City of Morgantown, Monongalia County, West Virginia, is not needed for street purposes or for any other public use or public purpose and that it is proper that the same be vacated, abandoned and annulled;

'Now therefore be it ordained by the Common Council of The City of Morgantown in regular session assembled:

'Section 1. That that part of the so-called turn-around, which said turn-around has a radius of 30 feet from a point in said street line, in Cox Place, formerly known as Morgan Place, as laid down and designated on the map or plat of the Hopecrest Addition to the First Ward of the City of Morgantown, West Virginia, a copy of which said map or plat is of record in the office of the Clerk of the County Court of Monongalia County, West Virginia, in Deed Book No. 221, at page 388-1/2, is not used for street purposes and is not needed for street purposes or for any other public use on public purpose, and that therefore it is in the interest of The City of Morgantown and of the public generally that the part of said turn-around of said Cox Place, formerly known as Morgan Place, be vacated, abandoned and annulled, and it appearing that the property of no person, firm or corporation will be damaged or injured thereby, and it further appearing that the owners of all of the property abutting upon said Cox Place with the exception of the owners of one lot, have by a written petition requested said annulment, it is therefore ordered and ordained that the following part of said turn-around of said Cox Place, formerly Morgan Place, be and the same is hereby vacated, abandoned and annulled, and that from and after the date of the adoption of this ordinance the same shall cease to be a public way or public street within the City of Morgantown, West Virginia, and the easement or right of way of The City of Morgantown therein, thereon and thereover is hereby expressly abandoned and annulled, the part of said turn-around so vacated, abandoned and annulled being described as follows, beginning at the southwest corner of Lot No. 106 in said Hopecrest Addition, thence along a line projected in a northeasterly direction across the present area of said turn-around to the northwest corner of Lot No. 68 and the northeast corner of Lot No. 69 in said Hopecrest Addition, it being the intention hereof that the easement and right of way of The City of Morgantown, West Virginia, for street purposes over the area of said turn-around to the south of said projected line and contained within the semicircle so made is hereby vacated, abandoned and annulled.

'Section 2. That The City of Morgantown does hereby expressly retain the present 40 foot right of way and roadway of Cox Place, formerly Morgan Place, and also that part of said turn-around area not herein described as being vacated, abandoned and annulled.

'Section 3. That as a condition precedent to said annulment and t the adoption of this ordinance Edwin C. Arkwright and Tillie J. Arkwright, husband and wife, owners of Lot No. 68 in Hopecrest Addition for themselves, their heirs and assigns, shall enter into an agreement with The City of Morgantown providing that the driveway on said Lot No. 68 may be used by persons, firms and corporations for the privilege of turning and that no damages will be claimed for such use and that no complaints or charges will be made in relation thereto, said agreement to be in form acceptable to The City of Morgantown.

'Section 4. That prior to the date of the adoption of this ordinance a public hearing shall be held at a regular meeting of the Common Council of The City of Morgantown as to the vacating, abandoning and annulling of the part of the Cox Place turn-arround described in this ordinance and hereby proposed to be vacated, abandoned and annulled and that due notice of such hearing shall be given by the City Clerk of The City of Morgantown by publishing in a newspaper published and of general circulation with the City of Morgantown once each week for two successive weeks prior to the date of such hearing. Such notice shall state the date, time, place and purpose of such hearing.

'Section 5. In accordance with the provisions of the Statutes and the laws of the State of West Virginia in such cases made and provided upon the adoption of this ordinance that part of the Cox Place turn-around herein described and herby vacated, abandoned and annulled shall revert to and become the property of Edwin C. Arkwright and Tillie J. Arkwright, husband and wife, as the owners of Lot No. 68 in said Hopecrest Addition.

'Section 6. Upon the adoption of this ordinance a duly verified copy thereof together with a plat of the area of Cox Place, formerly Morgan Place, hereby vacated, abandoned and annulled shall be recorded in the appropriate deed book in the office of the Clerk of the County Court of Monongalia County, West Virginia, as evidence of the vacating, abandoning and annulling of said part of said turn-around for public uses and public purposes as a public street or way.

'Section 7. Prior to the date of the adoption of this ordinance Edwin C. Arkwright shall pay the costs of this proceeding as the same may be fixed by the City Clerk of The City of Morgantown.

'Section 8. This ordinance shall be effective from the date of its adoption.'

In 1925 the owners of the land comprised in Hopecrest Addition in the first ward of The City of Morgantown who appear to have been Wayne Cox and Thomas J. Wotring caused a map or plat of that addition, dated June 30, 1925 and showing the lots and streets and avenues within the addition, to be recorded in the office of the Clerk of the County Court of Monongalia County. By deed dated June 12, 1928, Wayne Cox and Sara D. Cox, his wife, who appear to have been the owners of the ...