State ex rel. Ashworth v. State Road Commission

• Decision Date: 04 December 1962
• Docket Number: No. 12169,12169
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. L. L. ASHWORTH and Dora Ashworth v. The STATE ROAD COMMISSION of West Virginia, a Corporation, and Burl A. Sawyers, State Road Commissioner of West Virginia.

Page 471

128 S.E.2d 471

147 W.Va. 430

STATE ex rel. L. L. ASHWORTH and Dora Ashworth v. The STATE ROAD COMMISSION of West Virginia, a Corporation and Burl A. Sawyers, State Road Commissioner of West Virginia.

No. 12169.

Supreme Court of Appeals of West Virginia.

Submitted May 1, 1962.

Decided Dec. 4, 1962.

Syllabus by the Court.

1. The right of access to and from a public highway is a property right of which the owner can not be deprived without just compensation.

2. A highway constructed under the jurisdiction of the state road commission, unless designated as a controlled-access facility, is a conventional road.

3. When a public official is authorized by statute to perform certain acts or duties, the effect of which will deprive another of a vested property right, he is required in some reasonable manner to make knowledge of his action readily available to the property owners affected thereby.

4. Where a deed contains a recital which purports to release 'all claims for damages * * * occasioned to the residue * * * by reason of the construction and maintenance of a state road over' the land of the grantor, such language does not release any rights of access thereto of the grantor.

5. Where the language of a contract is plain, the language must be given effect and no construction or interpretation thereof is permissible.

David D. Ashworth, Beckley, for relators.

Benjamin A. Ritchie, Charleston, for respondents.

CAPLAN, Judge.

In this original proceeding in mandamus the petitioners, L. L. Ashworth and Dora Ashworth, his wife, seek a writ from this Court to compel the respondents, The State Road Commission of West Virginia, a Corporation, and Burl A. Sawyers, state road commissioner, to institute and prosecute to conclusion against the petitioners a proceeding in eminent domain for the purpose of having ascertained and determined the damages which petitioners claim they have sustained by the alleged taking of certain vested property rights.

The petition was filed on February 13, 1962, and on April 2, 1962, this Court issued a rule returnable May 1, 1962. On May 1, 1962, this proceeding was submitted for decision upon the petition; upon the answer filed by the respondents; and upon the written briefs filed and oral arguments presented in behalf of the respective parties.

For the purposes of this proceeding it is admitted that the petitioners were the owners of two contiguous tracts of land situate in Browns Creek District, McDowell County. These tracts contained 16.44 acres and 4.25 acres respectively, and were used for general farm purposes and timber growing. A residence occupied by a tenant of the petitioners was situate thereon. These tracts were close to schools and churches, and access therefrom to the City of Welch was available by means of an old road leading from the tenant's residence to the public streets of Welch.

By deed dated August 23, 1954, the petitioners conveyed to the state road commission a certain strip or parcel of land containing 1.58 acres. It is undisputed that this 1.58 acre parcel was taken partly from the 16.44 acre tract and partly from the 4.25 acre tract. The deed provided that the land was conveyed 'for the purpose of building, constructing and maintaining a highway over, across and upon the same, together with the right of the party of the second part * * * to enter upon, construct and maintain a highway over, across and upon the property of the parties of the first part * * *.' Also conveyed was an easement for the construction of slopes in cuts and fills, and drainage where necessary. Of further pertinence in this case was a provision in the deed whereby the petitioners released the commission 'from any and all claims for damages that may be occasioned to the residue of the lands of the parties of the first part by reason of the construction and maintenance of a state road over, upon and under the tract or parcel of land herein conveyed'. The consideration paid to the petitioners for this conveyance was $500.00.

Subsequent to this conveyance, the state road commission constructed a road over and upon the 1.58 acre tract. This road was to be known as the Welch By-Pass and was a part of U. S. Route No. 52. The date upon which the construction of this road was completed is somewhat indefinite, but it was stated by the respondents in their answer that it was opened for use by the public in the latter part of 1957.

The controversy in this proceeding concerns the classification by the state road commission of this highway as a controlled-access facility. At no time and in no manner, from the commencement of the construction of this road through the time of its completion, was it designated by the state road commissioner as a controlled-access highway. It is alleged by petitioners, and admitted by respondents, that the records in the office of the Clerk of the County Court of McDowell County fail to disclose, by maps, orders or otherwise, that this new portion of U. S. Route No. 52 was intended to be a controlled-access highway.

In November, 1959, the petitioners began to improve the private road leading through their properties, and expressed a desire to construct a gasoline service station and restaurant on the northwest portion of their land abutting on the 1.58 acre tract. They were notified by the state road commission that they had no right of access to and from their properties abutting on the 1.58 acre right of way. Thereafter, the petitioners filed a petition with the commission requesting the right of access or, in the alternative, that the respondents institute a proceeding in eminent domain 'to acquire the right of non-access through said properties of petitioners'.

On January 8, 1960, the state road commissioner entered an order designating the road in question a controlled-access facility. An examination of the record of this proceeding does not disclose that this order was recorded or published in any manner, or that the petitioners were notified or knew of its entry.

It is the position of the petitioners that they did not convey to the respondents their right of access to their property; that the recently constructed road was a conventional highway, no notice otherwise having been given or made available to them; that the deed of August 23, 1954, contained no language indicating that the road was to be a controlled-access facility; that they could not have conveyed their right of access for the reason that when the deed was executed the statutory authority permitting the commissioner to control the access to streets and highways was not then in existence; that the respondents took from the petitioners their right of ingress and egress, a vested property right, without paying just compensation therefor; and that the petitioners are without remedy, other than by this proceeding in mandamus, to rectify the wrongs committed against them.

The respondents contend that the petitioners were adequately compensated for the 1.58 acre tract of land; that by virtue of the release in the deed the petitioners relinquished all rights in said land, including the right of access to and from the abutting property; that in view of the rugged terrain and the design of the new highway it should have been obvious to the petitioners that such highway would be one of controlled-access; and that if denial of vehicular access to the petitioners did result in compensable damage, their right to recover is barred by the provisions of Code, 55-2-12, as amended.

The petitioners have received payment, through a voluntary conveyance by deed, for the land over which this highway was constructed. What then is the nature of the claim asserted here? They are ultimately seeking compensation for the alleged loss of access to the remainder of their property.

It is well established that the right of access to and from a public highway is one of the incidents of ownership or occupancy of land abutting thereon. It is appurtenant to the land and constitutes a property right of which the owner can not be deprived without just compensation. Dick v. City of Hinton, 109 W.Va. 708, 156 S.E. 81; Dudding v. White, 82 W.Va. 542, 96 S.E. 942; Davis v. Spragg, 72 W.Va. 672, 79 S.E. 652, 48 L.R.A.,N.S., 173; D'Arago v. State Roads Commission, 228 Md. 490, 180 A.2d 488; City of Shawnee et al. v. Robbins Bros. Tire Co., 134 Okl. 142, 272 P. 457, 66 A.L.R. 1047; Crawford v. Town of Marion, 154 N.C. 73, 69 S.E. 763, 35 L.R.A.,N.S., 193; Goodfellow Tire Co. v. Commissioner of Parks and Boulevards, 163 Mich. 249, 128 N.W. 410, 30 L.R.A.,N.S., 1074. See Nichols, Eminent Domain (3rd Ed., 1962 Cum.Supp.), § 10.2211, p. 64 and n. 8.6 thereto; Annotation 43 A.L.R.2d 1072, § 3 and cases cited.

A highway constructed under the jurisdiction of the State Road Commission is either a conventional road or it is a controlled-access facility. The owners of property abutting upon a conventional road have a vested right of access to that road. This is a property right of which the owner can not be deprived without just compensation. This right of access does not exist when a new highway, upon construction, is designated as a controlled-access facility. D'Arago v. State Roads Commission, 228 Md. 490, 180 A.2d 488. See Nichols, Eminent Domain (3rd Ed., 1962 Cum.Supp.), § 10.2211, p. 64 and n. 8.5 thereto; Annotation 43 A.L.R.2d 1072, § 6 and cases cited. It is essential, therefore, in this case, to first determine the classification of the road when constructed.

The state road commission acquired this 1.58 acre tract of land by voluntary conveyance. The deed was prepared by the commission on one of its standard printed forms. Nothing therein discloses that other than a conventional road was to be constructed. Nothing during the construction nor upon completion of the highway indicated that this was to be a controlled-access facility. Neither prior to the construction of the highway, nor upon the completion...