Herold v. Hughes

Citation90 S.E.2d 451,141 W.Va. 182
Decision Date25 October 1955
Docket NumberNo. 10731,10731
CourtSupreme Court of West Virginia
PartiesG. D. HEROLD et al. v. C. J. HUGHES and Hamilton Gas Corporation.

Syllabus by the Court.

1. A grant of an easement for public highway purposes embraces every reasonable method of travel, communication of intelligence, and transportation of proeprty, including the method of transportation of natural gas by pipe lines constructed and maintained on or under the land over which the easement is created.

2. The construction or maintenance of a pipe line for the transportation of natural gas, and the transportation of natural gas through the pipe line, on or under the land over which an easement has been created for public highway purposes, done by virtue of a valid permit issued by governmental authority, constitutes no additional burden on the fee in the land from which such easement arose.

3. The transportation of natural gas by a producer thereof to a public service company who sells and delivers the gas for public use, is transportation for a public purpose.

Steptoe & Johnson, W. F. Wunschel, Stanley C. Morris, Charleston, Breckinridge & Brown, John B. Breckinridge, Summersville, for appellants.

Rummel, Blagg & Stone, Charleston, amicus curiae on behalf of West Virginia Oil & Natural Gas Association.

Wolverton & Callaghan, Richwood, G. D. Herold, Summersville, R. J. Thrift, Jr., Fayetteville, for appellees.

GIVEN, Judge.

The plaintiffs, G. D. Herold, Talitha S. Herold, Eugenia P. Herold and Laura V. Wolverton, instituted a chancery cause in the Circuit Court of Nicholas County agaisnt C. J. Hughes and the Hamilton Gas Corporation praying that a mandatory injunction be issued requiring the defendants to remove a certain 'gas transmission pipeline from the said property of these plaintiffs'; that the defendants be restrained from any further trespasses on the real estate of plaintiffs, and for damages. The defendants answered, denying any trespass on real estate of plaintiffs and alleging the right to construct and maintain the gas pipe line complained of by virtue of a permit issued to Hamilton Gas Corporation by the State Road Commission of West Virginia. The trial court, after the taking of depositions, entered a decree granting the injunction.

The Hamilton Gas Corporation is a producer of natural gas which it transports and sells to Hope Natural Gas Company. The Hope Natural Gas Company is a public utility, but the Hamilton Gas Corporation is not a public utility. For the delivery of such gas it became necessary for Hamilton to construct a four inch pipe line from the producing wells to the point of delivery to Hope Natural Gas Company. In doing so it employed the defendant, C. J. Hughes, to construct the pipe line. The line constructed over timely protests of plaintiffs, passed through or over the public roadway acquired by the State Road Commission, which extended through the farm now owned by plaintiffs for a distance of approximately 4,397 feet. The roadway is now designated as United States Route 19 and was formerly known as State Route 4. No deed or conveyance to the State Road Commission or to the County Court of Nicholas County is exhibited, or shown to have been executed, by plaintiffs or any predecessors in title, conveying the roadway. Apparently the only matter of record which might have any relation to the transfer is an item found in the records of the County Court of Nicholas County made on the 12th day of December, 1927, which reads: 'The Following Claims Are Allowed Payable Of County Road Fund L. W. Herold Estate Right of Way Route No. 4 2350.00 No. 3675. * * *'. There is no question that the right of way mentioned is the right of way presently involved. Neither is there any question that the right of way has been used for public road purposes since its acquisition by the County Court of Nicholas County.

The permit, issued by the State Road Commission to Hamilton, October 19, 1953, pursuant to Code, 17-16-6, authorized the construction and maintenance of a '4' gas line along U. S. Rt. 19 parallel to and at least 5' from present pavement and buried at a minimum depth of 18"' below ditchline'. The permit, however, was on condition that the work be done under the direction of the State Road Commission; that the State Road Commission be saved harmless from damages; that the applicant be responsible for all repairs necessitated by the construction of the pipe line; that applicant would remove the installations at no cost to the State Road Commission when required for the improvement of the road; and that the applicant shall be 'subject to all regualtions now or hereinafter adopted by the State Road Commission'.

One of the pertinent statutes, Code, 17-16-6, as amended, reads in part: 'No opening shall be made in any state or county-district road or highway, nor shall any structure be placed therein or thereover, nor shall any structure, which has been so placed, be changed or removed, except in accordance with a permit from the state road commission or county court, as the case may be. No road or highway shall be dug up for laying or placing pipes, sewers, poles or wires, or for other purposes, and no trees shall be planted or removed or obstructions placed thereon, without the written permit of the commission or county court, or its duly authorized agent, and they only in accordance with the regulations of the commission or court. The work shall be done under the supervision and to the satisfaction of the commission or court; and the entire expense of replacing the highway in as good condition as before shall be paid by the persons to whom the permit was given, or by whom the work was done: Provided, however, that nothing herein contained shall be so construed as to prevent any oil or gas company or person having a proper permit or franchise from transporting oil or gasoline along any of the public highways of this State, nor to give such company a franchise without paying to the landowners through whose lands such road passes the usual and customary compensation paid or to be paid to the landowners for such right of way. Any grant or franchise when made shall be construed to give to such company or person only the right to use the easement in such public road.'

The other pertinent statute, Code, 17-4-8, as amended, in so far as material, reads: 'No railroad or electric or other railway shall be constructed upon the roadbed of any state road, except to cross the same, nor shall any person, firm or corporation enter upon or construct any works in or upon such road, or lay or maintain thereon or thereunder any drainage, sewer or water pipes, gas pipes, electric conduits or other pipes, nor shall any telephone, telegraph or electric line or power pole, or any other structure whatsover, be erected upon, in or over any portion of a state road, except under such restrictions, conditions and regulations as may be prescribed by the state road commissioner.'

It is the position of the plaintiffs that the State Road Commisison acquired and owns only an easement across their farm and that the fee in the strip of land in which the easement exists is vested in plaintiffs, the owners of the farm out of which the easement was carved. The trial court so found, and further found that the construction and maintenance of the gas line constituted an additional burden on the fee; and held that plaintiffs were entitled to injunctive releif, and ordered the removal of the pipe line from the right of way. Since the item quoted above from the record of the County Court of Nicholas County shows that the right or property acquired was a 'right of way' for a road, and since G. D. Herold, one of plaintiffs, testified to the effect that neither the County Court of Nicholas County nor the State Road Commission has any deed for the property, and that the fee in the land over which the right of way exists has been assessed for tax purposes as part of plaintiffs' farm, we treat the finding of the court as supported by the evidence. See 25 Am.Jur., Highways, Section 132; 17 M.J., Streets and Highways, Section 27.

The defendants say that the permit issued to defendant Hamilton Gas Corporation by the State Road Commission vests in it the right to construct and maintain the gas line on the conditions set out therein, whether the State owns the fee in the land or whether it owns merely an easement for public road purposes. Thus the controlling question relates to the right or authority of the State Road Commission, under the statutes quoted above, to issue such a permit where it owns merely an easement for public road purposes.

It may be conceded, at least for the purposes of this case, that the State can not grant, by permit or otherwise, any right or property as to such an easement which would place upon the fee in the land a burden greater or in addition to that which is necessarily included within a grant of an easement for public road purposes. To permit such would be to permit the depriving of the owner of a part of his property without just compensation, in violation of constitutional provisions. But such a conclusion does not furnish an answer to the question posed, for we must determine whether the right or privilege granted Hamilton Gas Corporation is a right or privilege included within the grant of an easement for public road purposes.

The public highways of this State belong to the State and are subject to the control of the State. Nulter v. State Road Commission, 119 W.Va. 312, 193 S.E. 549, 194 S.E. 270. Though the owner of a fee in an easement existing for public road purposes may technically have title to the surface of the way not useful or necessary in the construction or maintenance of the road, he can not utilize it in any manner that will interfere with the use by the public or with the control of the way by the State. 39 C.J.S., Highways, § 138; ...

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