Coffman et al. v. Griffin et al.
| Decision Date | 20 November 1880 |
| Citation | 17 W.Va. 178 |
| Court | West Virginia Supreme Court |
| Parties | Coffman et al. v. Griffin et al. |
After a report in favor of a certain route for a county-road has been made by viewers, a day has been appointed by the court for the hearing of the parties, and a land-proprietor on that day appears and after hearing evidence the court orders the road or the route recommended by the viewers to be established, and the land proprietor asks a writ of ad quod damnum. On the return of this writ the case being then before the court for final determination the proprietor of the land offers a witness to prove that the road should not be established by showing that there is another route for the road than the one recommended by the viewers, which is both cheaper and better. The county court refuses to hear this evidence. The proprietor of the land cannot complain of this as an error in the Appellate Court.
If all the proceedings to establish a road before a county court arc those required to establish a public as distinguished from a private road, and the order to establish the road is such an order as should be entered, when a public road is established, except that it orders one half of the land-damages to be paid by the applicant and the other half by the county, instead of ordering the whole land-damages to be paid by the county, this does not prevent the road established from being a public or render it doubtful whether it be a private or public road; and it is not an error of which the proprietor of the land has a right to complain in an Appellate Court.
Writ of error and supersedeas to a judgment of the circuit court of the county of Harrison, rendered on the 6th day of December, 1878, affirming an order of the county court of said county in the matter of a petition of certain citizens of said county to establish a road, granted upon the petition of John G. Coffman and others.
Hon A. Brooks Fleming, judge of the second judicial circuit, rendered the judgment complained of.
Green, President, furnishes the following statement of the case:
On June 19, 1875, ninety-five persons petitioned the County Court of Harrison to establish a certain road in said county passing through the land of John G. Coffman and others; and thereupon the court on the motion of Joshua H. Griffin and Robert E. Harbert ordered Thomas Hawkin, James M. Lyon and Selden M. Ogden, who were appointed viewers for the purpose, to view and mark a way for a public road, as prayed for in this petition, and report certain things, the things to be reported being designated in the order, and being those things which are by the 35th section of chapter 194 of the Acts of 1872-3, to be reported, when a public road is asked to be established, the order specially stating that " the viewers may examine other routes or locations than that proposed, and report in favor of the one they prefer, with their reasons for the preference." Two of these viewers, Ogden and Hawkin, on February 9, 1875, made their report in favor of the route as proposed, and that the land taken of John G. Coffman was worth $54.00, and the damages to the residue of his tract was $98.00. They also estimated the damages to Hildreth and the value of his land taken; but he appeared in court and waived any compensation or damages. A motion was made to quash this report for errors on its face; but the court overruled the motion. But on the 19th of June, 1875, on the motion of John G. Coffman, the court set aside the order appointing the viewers, because the petition was not according to the statute, under which it was filed, and adjudged costs in his favor against Joshua H. Griffin and R. E. Harbert. But upon a writ of error granted at their instance the circuit court of Harrison on December 18, 1875, reversed this order of the county court and remanded the cause to the county court for further pro- ceedings. On February 22, 1876, it made an order establishing the road as reported by these viewers, the applicants to pay to John G. Coffman the $150.00 damages assessed to him, and, he being unwilling to accept the same, on his motion a writ of ad quod damnum was awarded him, to be executed on March 15, 1876, which was done; but by consent of parties on June 22, 1876, the court set aside this verdict, and a new writ of ad quod damnum was awarded Coffman, to be executed July 25, 1876. This writ was accordingly executed; and the jury found, that $350.00 would be a fair compensation to said John G. Coffman in consequence of the construction and establishment ot said road, and for damages to the residue of his said tract over and above the particular advantages to be derived from the construction of said road. Thereupon the court on the 23d day of December, 1876, entered this order:
"And at another day, to wit: At a county court held for the county of Harrison, on the 23d day of December, 1876, the inquest of the jury upon the writ of ad quod damnum issued in this case having been returned, this day came again the parties, by their attorneys, and the court having considered the report, inquest and other evidence adduced, doth order the said road to be established as viewed and marked by the viewers in said report; that of the ($345.00) damages aforesaid awarded by said jury, the applicants, Griffin & Harbert, pay to said Coffman $172.50 and the other half thereof be paid by the county; that the costs of this proceeding (except at the two terms when the same was continued at the cost of said Coffman) be paid out of the county treasury; that said Coffman pay the costs at the two terms when the same was continued on his motion; that upon the payment by said applicants of the said $172.50, the surveyor of the road, in whose precinct said road is located, open the same and keep it in repair."
Upon the trial of this cause the defendant excepted to the ruling of the court, and tendered his bill of excep- tions, which is signed, sealed and made a part of the record.
The bill of exceptions referred to above is as follows, to wit:
BILL OF EXCEPTIONS.
"Be it remembered That upon the return of the inquest of the jury impanelled on the 4th day of September, 1876, to assess the damages to the land owned by John G. Coffman, the petitioners for the road appeared on the 21st day of December, 1876, and offered evidence to the court to show the propriety of establishing the road asked for by the petitioners in said proceeding, and after they had examined a number of witnesses and announced that they rested their case, the land-owner, John G. Coffman, offered a witness to prove that the road should not be established, by showing, among other things, that a route as good if not better from Nolen's run to Robinson's run could be located about three fourths of a mile below the proposed route, and at greatly less expense to the county; said Coffman offering to give so much of his land as said last road might pass over without payment of damages or compensation said last route passing through said Coffman's land, and through the land of others; and said Coffman also offered to prove by an engineer, one Thomas M. Jackson, that he, said Jackson, had made a survey of said lower route, and that the same was equally practicable to that proposed and marked out by the viewers in said proceeding. To the introduction of which evidence, the counsel for the petitioners objected, and the court sustained the objections. To which action of the court in sustaining said objections and in excluding said evidence, the said Coffman, by his counsel excepted, and moved that his bill of exceptions be signed, sealed and enrolled, which is accordingly done.
And thereupon the said Coffman obtained from the circuit court of Harrison a writ of error and supersedeas to this judgment of the county court. And on the 6th day of December, 1878, the circuit court of Harrison decided, that this writ of error and supersedeas wasimprovidently awarded; and it was ordered that it be dismissed, and that the defendant in error recover of the plaintiff in error, Coffman, their costs expended in the circuit court. James M. Jackson, the judge of the fifth judicial circuit, awarded a writ of error and supersedeas to the Supreme Court of Appeals. The petition on which it was awarded, assigned as error that the county court had rejected the evidence which he offered, and that their order establishing the road did not establish it as a public or a private road, and yet the circuit court, when his writ of error was heard, affirmed this erroneous judgment of the county court.
John Bassell, for plaintiff in error.
Harrison, for defendants in error.
Green, President, delivered the opinion of the Court:
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