Heavner. v. State Rd. Comm'n.

• Decision Date: 11 May 1937
• Docket Number: (No. 8495)
• Citation: 118 W.Va. 630
• Court: West Virginia Supreme Court
• Parties: Homer M. Heavner et al. v. State Road Commissionet al.

118 W.Va. 630

Homer M. Heavner et al.

v. State Road Commissionet al.

(No. 8495)

Supreme Court of Appeals of West Virginia.

Submitted April 13, 1937.

Decided May 11, 1937.

1. Highways

Under the provisions of Section 4, Article 4, Chapter 40, Acts of the Legislature, First Extraordinary Session 1933, the State Road Commissioner has power "upon petition and hearing, or after due investigation, upon his own initiative, (to) discontinue any road no longer necessary" and such power is not subject to the control of the courts, except where its exercise is capricious, arbitrary or fraudulent.

2.Mandamus

Where the State Road Commissioner, in the lawful exercise of the powers vested in him under Section 4, Article 4, Chapter 40, Acts of the Legislature, First Extraordinary Session 1933, makes a change in a primary state road, owners of property, affected by such change, cannot, by mandamus, require the restoration of the road to its original location where reasonable access to and from their property is provided.

Original proceeding for writ of mandamus by Homer M. Heavner and others against the State Road Commission and others.

Writ refused.

Harvey W. Harmer, for relators.

Powell & Clifford, Clarence W. Meadows, Attorney General, and Forrest B. Poling, Assistant Attorney General, for respondents.

Fox, Judge:

The petitioners, Homer M. Heavner and W. Frank Stout, seek a writ of mandamus to compel the State Road Commission to open and maintain a section of state highway Route 20, as originally established, and located beginning at the intersection of Haymond Avenue with said route, near the corporate limits of the City of Clarksburg, extending in the direction of property owned by petitioners. The following statement of facts made up from the record seems necessary to develop the points of law at issue.

State Route 20 was designated as such by an order of the State Road Commission made on the 4th day of August, 1921, and was maintained as a primary state highway, and on its original location, from that date to the time when the relocation of parts of said route was made as hereinafter defined. Prior to such relocation, the petitioners became the owners of property abutting on said route, the petitioner, Stout, owning a house and small lot, and Heavner, a tract of seven acres of land, which, in 1928, he subdivided into forty-eight town lots, of which fifteen abutted on said route, the others being located on proposed streets leading into the same. At the time of the relocation, none of these lots had been sold, and the tract as a whole is now being used as meadow land.

Route 20, as originally located and designated, extends from Clarksburg south, passes the intersection of Haymond Avenue, near the city limits, and then along and above the street car line leading to Nutter's Fort, across a street car line, and in front of the property of petitioners, then under a trestle over which the car line passes, near a suburban community called Arbutus Park, and from that point, continues in the direction of Buckhannon. The location, grade and alignment of the route, in that vicinity, being, in the opinion of the Road Commissioner, unsatisfactory, it was decided to relocate that part of the same beginning near the intersection of Haymond Avenue by passing around the hill above the car line, thereby eliminating both the grade and undergrade car line crossings, and correcting and improving both the grade and alignment; the entire project, some two or three miles in length, and including grading and the construction of a modern highway thereon, involved an expenditure of more than one hundred thousand dollars. The original Route 20 was not affected except for a distance of about 300 feet from a point near Haymond Avenue where the change began. At this point, the new road was constructed on a grade some six feet higher than the original route, the road bed was widened, guard-rails were installed, and access to petitioners' property from the Clarksburg end of the new location was destroyed. Access to their property by way of the new location was provided by what is called a cut-off which leads from the new location, at a point 2290 feet south of Haymond Avenue, and extends a distance of 632 feet to old Route 20, and by said route, 692 feet to the center of the Heavner property, and some 370 feet farther to the property of Stout. From Haymond Avenue to the nearest point on the Heavner property by the original route, the distance is 903 feet, and to the center thereof, 1273 feet; so that, in traveling to or from Clarksburg by the new route, the distance is increased 2341 feet beyond that which it would be necessary to travel were the obstruction near Haymond Avenue removed and the road opened for travel. The record shows that the new route is as good, if not better, than the old, and the most serious objection made thereto is the additional distance required to be traveled in reaching the property of the petitioners. Under this statement of facts, petitioners say that they are entitled to have Route 20 opened for travel on its original location throughout, and seek to attain this end by the writ prayed for.

The respondents justify their action in closing said route at the point mentioned under powers vested in the Road Commissioner by Section 4, Article 4, Chapter 40, Acts of the Legislature, First Extraordinary Session 1933; they also rely on the proposition that their action, being a matter involving the exercise of discretion on their part, cannot be controlled by mandamus; and the right to control the action of the State Road Commission, or the Road Commissioner, as such, is also questioned, on the ground that being agencies of the State they cannot, in their official capacity, be made defendants in any suit or proceeding.

Wide power is vested in the Road Commissioner by the statute above referred to. Power is given him to

"(1) Locate and relocate new primary or secondary roads; and upon the petition of any interested party or upon his own initiative create, extend or establish any new road that shall be necessary * * *;

"(2) Upon petition and hearing, or after due investigation, upon his own initiative, discontinue any road no longer necessary;

" (3) Construct, reconstruct, repair and maintain the state roads."

This power was granted through the enactment of a comprehensive statute covering the location, construction, maintenance and control of the entire road system of the state, including main highways and roads formerly under the control of the county courts; and the powers thus granted must be taken to supersede all statutory provisions affecting the roads of the state existing prior thereto. It was under this power that the Road Commissioner assumed to act in relocating Route 20, and in closing that part of the old route which is the subject of attack in this proceeding. The...