Flowers v. City of Morgantown, No. 14253

• Court: Supreme Court of West Virginia
• Writing for the Court: CAPLAN
• Citation: 166 W.Va. 92,272 S.E.2d 663
• Parties: Robert S. FLOWERS et al. v. CITY OF MORGANTOWN, etc.
• Docket Number: No. 14253
• Decision Date: 09 December 1980

Page 663

272 S.E.2d 663 166 W.Va. 92 Robert S. FLOWERS et al.
v.
CITY OF MORGANTOWN, etc. No. 14253. Supreme Court of Appeals of West Virginia. Dec. 9, 1980.

Syllabus by the Court

" 'The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Syl. pt. 3, Chapman v. Kane Transfer Company, W.Va., 236 S.E.2d 207 (1977) ...." Syl. pt. 2, Leastronics, Inc. v. Charleston Area Medical Center, Inc., W.Va., 271 S.E.2d 608 (1980).

Robert S. Flowers, pro se.

Page 664

[166 W.Va. 93] Mike Magro, Jr., Morgantown, for appellee.

CAPLAN, Justice:

This is an appeal from an order entered in the Circuit Court of Monongalia County on December 14, 1977 dismissing the appellants' complaint for failure to state a claim upon which relief can be granted.

In their complaint filed January 3, 1977, the appellants, Robert and Norma Flowers, allege that they own a parcel of real estate in Morgantown upon which is situate their commercial building, Davidson Brothers Garage. Two public streets, owned and maintained by the City of Morgantown, abut the appellants' property. The appellants allege that by reason of their ownership of property abutting upon a public street, they have a special right of access and special property rights in light, air and view. They further allege that in 1976 the City of Morgantown undertook to cause to be constructed an indoor parking facility on property owned by the City across from the appellants' commercial building. It is alleged that as an integral part of the parking facility an elevated concrete walkway ramp was constructed, and that such ramp, for part of its distance, runs along the side of the appellants' commercial building adjacent to the window lights and exterior of the building.

As part of their prayer, the appellants sought to require the City to institute condemnation proceedings to condemn the property rights of the plaintiffs, being the special right to access, light, air and view, and to pay plaintiffs just compensation for the taking of said property rights.

The appellees moved to dismiss the complaint for failure to state a claim upon which relief could be granted. By memorandum order issued December 14, 1977, the circuit court granted the motion and dismissed the complaint. The court relied on State ex rel. Woods v. State Road Commission, 148 W.Va. 555, 136 S.E.2d 314 (1964) in finding that one whose real estate abuts upon a public street has an incident to such ownership easements of light, air, view and access, but that such rights are subject to the power of [166 W.Va. 94] the State or municipality to regulate reasonably in the public interest without compensation.

We find that Woods does teach, and the circuit court was correct in finding, that in West Virginia, owners of land abutting upon public streets have a special right of access thereto and to light, air and view therefrom. These are property rights and exist regardless of the ownership of the fee in the highway. Davis v. Spragg, 72 W.Va. 672, 79 S.E. 652 (1913). Woods does not teach, however, that such private property rights may be taken for public use without just compensation. ¹

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