Childers. v. State Rd. Comm'r
| Decision Date | 31 March 1942 |
| Docket Number | (No. 9225) |
| Citation | 124 W.Va. 233 |
| Court | West Virginia Supreme Court |
| Parties | O. R. Childers et al. v. State Road Commissioner |
In a mandamus: proceeding the relator must show a clear legal right to the relief sought.
One claiming to be the owner of land, and who seeks, by mandamus, to compel the State Road Commissioner to institute a proceeding to condemn and ascertain compensation for the part thereof occupied by the State as a highway, under claim to an easement therein for highway purposes, must, in establishing a clear legal right to the relief sought, show a right in the occupied portion thereof superior to that of the State.
Error to Circuit Court, Putnam County. Proceeding by C). R. Childers and other against State Road Commissioner for a writ of mandamus to compel the Commissioner to institute condemnation proceedings to ascertain value of strip of land of relators allegedlytaken in improvement of highway, together with damages to the residue of the lot. To review a judgment awarding the writ, the State Road Commissioner brings error.
Judgment reversed; petition dismissed.
Clarence W. Meadows, Attorney General, Kenneth E. Hines, Assistant Attorney General, and Arden Trickett, for plaintiff in error.
Lee, Blessing & Steed, for defendant in error.
Fox, President:
Federal Route No. 35, a part of the primary road system of this State, is located in part on the north side of the Kanawha River between the Cities of Charleston and Point Pleasant, and passes through the village of Poca in Putnam County. The relators, O. R. Childers and Mollie Childers, are the owners of a lot of land in said village, fronting seventy feet on said highway route, and, according to their deed, extending back one hundred and fifty feet. The highway was established before the formation of the State of West Virginia, and was a part of the turnpike system established by the Commonwealth of Virginia. It was improved about the year 1919 by laying down a hard surface nine feet wide, and in 1939 was reconstructed and the paved portion widened. Relators claim that in this reconstruction a strip of land 11.91 feet in width, and extending along the entire front of their lot, was taken by the State of West Virginia, under a claim that such strip was a part of the right-of-way owned by the State. No compensation was paid to relators therefor. They instituted this proceeding to compel the State Road Commissioner to institute condemnation proceedings to ascertain the value of the strip of land taken, together with damages to the residue of the lot, to be ascertained according to law. The trial court awarded the writ, and the State Road Commissioner prosecutes this writ of error.
Relators acquired title to the lot in question under deed dated June 30, 1926. The lot is described as beginning at a stone on the county road, and running therewith seventy feet to a stone, and then running back one hundred and fifty feet. Relators attempt to locate the boundaries of this lot by establishing its rear line, and, measuring from said line in the direction of the county road, would if run for the full distance of one hundred and fifty feet, carry the lot into the highway, as claimed by the State, 11.91 feet. The contention of the State Road Commissioner is that the line must stop at the highway rightof-way.
At the time of the purchase of this lot by relators, there was located thereon a two-story frame building, the front of which was in line with the highway boundary of the adjoining lots on either side, and in line with the sidewalks in front of the lots on either side, one of which extended for a short distance in front of relators' property. Until the highway was reconstructed, there was no sidewalk in front of relators' lot. Some time after their purchase the relators moved the two-story building back into their lot a distance of about twenty feet, and ten feet from the highway line, as claimed by the State, gasoline pumps were installed, which are still on the lot. There is evidence that a former owner of this property set back his fence to the line now claimed by the State more than fifty years ago, and that there was an old sidewalk running along in front of the Carey property, which adjoins the property of the relators, as early as 1885, and that the same was treated as the outside boundary of the road, and substantially represents the same sidewalk which is now located in front of said properties and which has lately been extended in front of the property owned by the relators.
While the evidence as to actual dedication for highway purposes of any part of relators' lot is vague, we think it clear that, for more than fifty years, the line of the highway, as claimed by the State, has been recognized by the owners of adjoining properties,...
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