Downs v. Lazzelle

• Decision Date: 07 December 1927
• Docket Number: (Nos. 5765, 5768.)
• Court: West Virginia Supreme Court
• Parties: DOWNS et al. v. LAZZELLE, Judge, et al. STATE ROAD COMMISSION. v. SAME.

136 S.E. 195

DOWNS et al.

v.LAZZELLE, Judge, et al.

STATE ROAD COMMISSION.

v.SAME.

(Nos. 5765, 5768.)

Supreme Court of Appeals of West Virginia.

Dec. 7, 1927.

(Syllabus by the Court.)

Proceedings by W. S. Downs and others for prohibition to be directed to Hon. I. Grant Lazzelle, Judge, and others, and by the State Road Commission for prohibition to be directed to Hon. I. Grant Lazzelle, Judge, and others. Writs denied.

Howard B. Lee, Atty. Gen., and R. Dennis Steed, R. A. Blessing and J. Luther Wolfe, Asst. Attys. Gen., for petitioners.

Frank Cox, of Morgantown, for respondents.

MILLER, J. By separate rules in prohibition, petitioners in the first entitled case seek to prohibit respondents from prosecuting against them, first, a suit in trespass for unlawfully and wrongfully breaking and entering the messuage and close of respondents Robert S. Radcliff and Gail Radcliff, and tearing down and destroying the retaining wall in front of their property, and tearing up the soil and shrubbery within said close, situated on the public road between Fairmont and Morgantown, in Monongalia County; and in the second case petitioner seeks to prohibit respondents from prosecuting against it and the County Court of Monongalia County an injunction suit, restraining them and each of them from entering upon or taking and appropriating a strip of land belonging to plaintiffs, lying alongside the public road, for the purpose of widening said road, or for any purpose, without the consent of the owners, or acquiring the right to do so, and for general relief.

Respondents met the petition in each case with motions to dismiss, demurrers and answers denying all the material allegations of the petitions on which petitioners aver right or title to that portion of respondents' land abutting on the public road upon which the alleged trespass was committed, and denying any right or title to pull clown or destroy said retaining wall and shrubbery as alleged, situated upon their property.

The basis of petitioners' claim or right to prohibit is substantially the same in both cases:

First, absolute and indefeasible title in the State to the strip of land on which the retaining wall was located, and lawful right to enter and tear down the wall;

Second, that the trespass suit against Downs and others, employees of the State Road Commission, is in legal effect a suit against the State, and is inhibited by section 35 of article 6 of the Constitution;

Third, that both suits being against public officers, and agents of the State Road Commission, a distinct public agency, and involving the right and title of the State to the land in dispute, cannot be maintained against them elsewhere than in Kanawha County, where the seat of the State government is located, as provided by section 4 of chapter 37 of the Code.

The Attorney General, for petitioners, concedes that the jurisdiction of this court to control by prohibition the proceedings of the Circuit Court depends on the single question whether that court has jurisdiction, and if that jurisdiction depends on an issue of fact presented by the pleadings, the lower court has jurisdiction to determine the question and can not be controlled therein by prohibition or any other collateral proceeding. State ex rel. Keeney v. Bland, Judge, 89 W. Va. 600, point 5, 109 S. E. 716.

The petitioners Downs and others, in the first case, base their claim to immunity from damages for the alleged trespass upon the theory that by entry upon respondents' land by the County Court when beginning the construction of the road in 1917, and subsequently completing it in front of respondents' house in 1921, and which subsequently in August. 1922, when it was taken over for maintenance and further construction and reconstruction and repair by the State Road Commission, the State thereby acquired title to the whole of the right of way, alleged to be 20 feet on each side of the center line of the concrete slab or hard surface part of the road and including the whole of the strip on which said retaining wall was located, and as to which petitioners claim there remains no material disputed fact.

To sustain this position they rely: First, upon the alleged dedication of a road or street by the partitioners of what is known as the Crowl land, made in August, 1919, lot number 17 of that partition being now owned by respondents, acquired by them by deed of January 3, 1921, through one of said partitioners, and on a plat of which land the road now in question was laid down through said tract as a road 40 feet in width; second, the alleged acceptance of such dedication by the County Court by an order of June 20, 1919, whereby it was resolved to improve 2.1 miles of the Morgantown-Fairmont road, inclusive of the road through said Crowl tract, described as a main county road, by grading to a width of not less than 26 feet, and draining the property and laying thereon a surface of not less than 16 feet in width, 8 feet on each side of the center line thereof; third, the action or resolution of April 29, 1922, of the State Road Commission, in taking over said road after the completion thereof by the County Court as described, for the purpose of maintenance and further construction and reconstruction as to the commission might seem necessary and proper; fourth, upon the provisions of section 19 of chapter 43 of the Code, section 19, chapter 112, Acts 1921, providing that, "all state roads shall occupy a right of way not less than forty feet wide, exclusive of land necessary for slopes for cuts and fills, unless the commission shall make an order for a different width, " not in the statute at the time of the building and improvement of said road; fifth, upon the alleged ground that respondents or their predecessors in title stood by while said road construction and improvement was going on without objection, thereby consenting to the invasion of their said land and the construction of the road thereon, a fact positively denied in so far as it pertains to the particular strip of land in controversy; sixth, the statute of limitations of one year prescribed by section 138, chapter 43 of the Code, as amended by chapter 6, Acts 1923, and applicable to roads established and constructed theretofore or thereafter pursuant to said chapter 43 of the Code, in force at the time.

But the fact of such dedication and the alleged acceptance thereof in the way indicated is controverted, and whether the road as constructed occupied the road as laid down on the plat of said partition, and whether the retaining wall destroyed by petitioners was constructed upon any part of the road so built, or was within the survey or location of said road by the county court, is vigorously controverted by respondents in pleading and proof. And there is little, if any, doubt that in the building of said road the county authorities invaded the lands of respondents, not only outside the boundary of the old road, but also the road as platted on said partition map; and there is little doubt but that a part of said wall was wholly outside any of the right of way claimed to have been taken by said County Court, consisting of a strip from about the center of the front steps eastward to the line of lot number 16 on said plat, from 15 to 20 feet wide, and on which a part of said wall stood before it was torn down by petitioners. The effect of the resolution of the County Court proposing to build said county road, upon said partition and the record thereof, as an acceptance of a supposed dedication thereof, and the fact of said dedication are all controverted facts, depending on the record and the oral evidence taken herein.

As to the provisions of section 19 of chapter 112, Acts 1921, and of section 138 of chapter 43 of the Code, we do not see how ex proprio vigore they could confer title on State or County, enacted as they were long after the proceeding of the County Court and the building and construction of said road through respondents' land. They could have no retrospective effect, though the State or County may, pursuant to the statutes as amended, proceed to take more land for widening and extending the road, subject to all constitutional and statutory rights of the land owners. Griffin v. Cunningham, 20 Grat. (Va.) 31.

Prohibition will not lie against an inferior court or the judge thereof to deprive it or him of the right to pass upon the extrinsic facts determinative of jurisdiction. Steamship Co. v. Hudson, Judge, 93 W. Va. 209, 11G S. E. 511; Jennings v. McDougle, Judge, 83 W. Va. 186, 98 S. E. 162; King v. Doolittle, Judge, 51 W. Va. 91, 41 S. E. 145. A court cannot be deprived of its right to determine the jurisdictional facts, although the evidence be absolutely conclusive. State ex rel. Keeney v. Bland, Judge, 89 W. Va. 600, 109 S. E. 716. Our opinion is therefore that Judge Lazzelle, of the Circuit Court, has ample jurisdiction to determine the question of his jurisdiction on the facts as they may be presented in the damage case, and to first adjudge the rights of the parties.

To warrant petitioners in invading the curtilage and close of the plaintiffs and tearing down their wall, they must have a clear legal right to enter for that purpose. Otherwise they will be without immunity from damages for their wrong; and the fact that they are officers or agents of the State furnishes no defense, unless they be clothed with the full panoply of the law. Their color of office will not protect their unlawful invasion of another's rights. They will act at their peril....