Childers v. State Road Com'r

Decision Date31 March 1942
Docket Number9225.
Citation19 S.E.2d 611,124 W.Va. 233
CourtWest Virginia Supreme Court

Clarence W. Meadows, Atty. Gen., Kenneth E. Hines Asst. Atty. Gen., and Arden Trickett, of Charleston, for plaintiff in error.

Lee Blessing & Steed, of Charleston, 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 70 feet on said highway route, and, according to their deed, extending back 150 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 9 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 70 feet to a stone, and then running back 150 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 150 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 right-of-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 relatots' 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 20 feet, and 10 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, and until recently by the owners of the property now owned by relators, as the true line of the highway right-of-way. The county and State during all that period have used a portion of this right-of-way for highway purposes, and made permanent improvements thereon more than twenty years ago. Considering the character of the highway, the width thereof, at the date of the alleged dedication, is presumed by law to be 40 feet. State Road Commission v. Coogle, 108...

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