Downs. v. Lazzelle

• Decision Date: 07 December 1926
• Docket Number: ( No. 5768),( No. 5765
• Parties: W. S. Downs et al. v. Hon. I. Grant Lazzelle, Judge et al. and State Road Commission v. Hon. I. Grant Lazzelle,Judge et al.
• Court: West Virginia Supreme Court

102 W.Va. 663

W. S. Downs et al.

v.Hon. I. Grant Lazzelle, Judge et al.and State Road Commission

v.Hon. I. Grant Lazzelle, Judge et al.

(Nos. 5765, 5768)

Supreme Court of Appeals of West Virginia.

Submitted November 23, 1926.

Decided December 7, 1926.

1. Prohibition Prohibition Will Not Lie Against Inferior

Court or Judge Thereof to Deprive it or Him of Right to Pass Upon Extrinsic Facts Determinative of Jurisdiction. Prohibition will not lie against an inferior court or a judge thereof to deprive it or him of the right to pass upon the extrinsic facts determinative of jurisdiction, (p. 668.)

2. Trespass Officer or Other Agency of State Does Not Repre-

sent State in Committing Trespass or Other Unlawful Act, and Without Right or Lawful Process Enters Upon Land or Property of Another, He Becomes Personally Liable for Damages so Unlawfully Inflicted, for Which Suit at Law or in Equity, as Right May be, May be Maintained Against Him.

An officer or other agency of the State does not represent the State in committing a trespass or other unlawful act, and if without right or lawful process he enters upon the land or property of another, he becomes personally liable for the damages so unlawfully inflicted, and for which a suit at law or in equity, as the right may be, may be maintained against him. (p. 671.)

3. Immunity Immunity of State Can Not be Invoked by an

Officer or Agent of State to Protect Him Against Unlaw- ful or Unwarranted Act.

The immunity of the State can not be invoked by an officer or agent of the State to protect him against his unlawful or unwarranted act. (p. 671.)

4. Trespass State Road Commission of State and County Court

Cooperating With it, May be Restrained by Injunction From Unlawful Invading Private Property of Another Tearing Down Walls and Digging up Soil and Shrubbery, When Such Act Would Amount to Trespass. The State Road Commission of this State and a county court cooperating with it, may be restrained by injunction from unlawfully invading the private property of another and tearing down his walls and digging up his soil and shrubbery, when such act would amount to a trespass, (p. 668.)

5. Same Suit for That Purpose Maintained in Circuit Court of County Where Unlawful Act is About to be Committed or is Threatened, Notwithstanding Provisions of Section 4, Chap. 37, Code, 1923.

And a suit for that purpose may be maintained in the circuit court of the county where the unlawful act is about to be committed or is threatened, notwithstanding the provisions of section 4 of chapter 37, Code 1923. (p. 672.) Litz and Woods, Judges, absent.

Original Jurisdiction.

Rules in Prohibition W. S. Downs and others petitioners against Hon. I. Grant Lazzelle, Judge, etc. and State Road Commission petitioner against same respondents.

Writ denied.

Howard B. Lee, Attorney General, B. Dennis Steed, B. A. Blessing and J. Luther Wo'fe, Assistants Attorney General, for petitioners.

Frank Cox, for respondents.

Miller, Judge:

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 Radeliff, 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 M'onongalia County; and in the second case petitioner seeks to prohibit respondents from prosecuting against Hon. I. Grant Lazzelle, Judge, etc. and State Road 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, the 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 down 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 vi 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, can not 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.

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 Au- gust 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 twenty 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 petitioners, and on a plat of which land the road now in question was laid down through said tract as a road forty feet in width; Second, the alleged acceptance of such dedication by the county court by an order of June 26, 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...