Raleigh County Court v. E.C. Minter Coal Co.

• Decision Date: 15 March 1927
• Docket Number: 5812,5812-A.
• Citation: 137 S.E. 754,103 W.Va. 386
• Parties: RALEIGH COUNTY COURT v. E. C. MINTER COAL CO.
• Court: West Virginia Supreme Court

137 S.E. 754

103 W.Va. 386

RALEIGH COUNTY COURT v. E. C. MINTER COAL CO.

Nos. 5812, 5812-A.

Supreme Court of Appeals of West Virginia.

March 15, 1927

Submitted February 15, 1927.

Rehearing Denied May 4, 1927.

Syllabus by the Court.

A land-owning corporation, through whose property a public road extends, was interested in the construction of a railroad to develop for coal mining purposes a large boundary of land owned by it.For the convenience of the railroad company and the lessees of the land company, the county court permitted the appropriation of parts of the public road for the railroad right of way, in consideration of which the railroad company constructed a new public road over the property of the land company, in close proximity to the old route, the road as altered being thereafter used by the public and maintained by the county court as a public road for eight or ten years without protest by the land company or those claiming under it.Held, a dedication of the road as relocated will be presumed.

Under sections 3and130, c. 43, Code, making all county-district roads, however established, 30 feet in width measured 15 feet on either side from the "center of the traveled way," the dedication in such case, in the absence of proof to the contrary, will be presumed to have been of a right of way 30 feet wide.

Appeal from Circuit Court, Raleigh County.

Suit by the County Court of Raleigh County against the E. C. Minter Coal Company, for a mandatory injunction.From the decree both parties appeal.Decree reversed, and injunction awarded.

LITZ J.

The plaintiff, county court of Raleigh county, seeks by mandatory injunction the removal of obstructions from a county-district road.

Prior to 1915, a public road along Stone Coal creek, in Slab Fork district of said county, was established by public user and maintenance for more than 30 years.During the year 1915 and the early spring of 1916 the Virginian Railway Company, while constructing a branch line of its railway up Stone Coal creek, appropriated portions of said road for its right of way, constructing in lieu thereof a new road in close proximity to the original route.The road as originally established and relocated extends through the lands of the Western Pocahontas Corporation, which was vitally interested in the construction of the railroad to develop its extensive holdings of coal property in that territory.The county court consented to the relocation of the road for the convenience of the railway company and the lessees of the land company, upon the representation of counsel for the land company that the change would be entirely satsifactory to it.The road, as relocated, since its completion in the early spring of 1916, has been used for public travel and maintained by the county court.

By deed dated October 1, 1918, the Western Pocahontas Corporation leased and demised unto East Gulf Coal Company, for coal mining purposes, a large boundary of land through which the road passes.By deed dated February 9, 1920, East Gulf Coal Company, with the consent of the Western Pocahontas Corporation, leased and demised unto C. H. Meade Coal Company for coal mining purposes a parcel of said land containing 2,500 acres.By deed dated April 1, 1920, C. H. Meade Coal Company, with the consent of the Western Pocahontas Corporation, leased and demised unto the defendant, E. C Minter Coal Company, approximately 500 acres of the 2,500-acre tract.

For the purpose of operating under its lease, in 1921the defendant erected a coal tipple across said road, leaving a passage of about 15 feet in width and a clearance of approximately 10 feet overhead.It also laid across and along the road near the tipple narrow gauge railway tracks to be used in the operation of the coal plant.

January 23, 1924, Slab Fork district voted a bond issue of $400,000 for the purpose of grading and hard-surfacing certain roads in the district including the "Stone Coal road."This road was then improved under the bond issue in both directions from immediately above and below the tipple.The defendant being unwilling to relinquish use of the road in the operation of its tipple and railway tracks, J. F. Bolen a member of the court, and also director and stockholder of the defendant company, directed J. F. Rothwell, a contractor to grade a road around the mountain side above the tipple, connecting with the county-district road.The work was proceeded with at great cost to the contractor.The road so constructed around the tipple is steep and curved, while the one passing thereunder is level and straight.

The county court refused to ratify the action of Bolen, or to pay the contractor for the work.Later the defendant completely obstructed the passageway under the tipple, and posted notices forbidding the public to use the same.This suit followed.

Upon a final hearing, the circuit court decreed that the road in question "is a county-district road and therefore a public highway, subject, however, to the rights of the E. C Minter Coal Company to use, occupy, and...