State ex rel. Dunn v. Griffith

• Decision Date: 08 June 1954
• Docket Number: No. 10650,10650
• Citation: 139 W.Va. 894,82 S.E.2d 300
• Parties: STATE ex rel. DUNN et al. v. GRIFFITH.
• Court: West Virginia Supreme Court

Page 300

82 S.E.2d 300

139 W.Va. 894

STATE ex rel. DUNN et al. v. GRIFFITH.

No. 10650.

Supreme Court of Appeals of West Virginia.

Submitted April 13, 1954.

Decided June 1, 1954.

Dissenting Opinion June 8, 1954.

Syllabus by the Court.

1. 'One claiming to be the owner of land, and who seeks, by mandamus, to compel the State Road Commissioner to institute a proceeding to condemn and ascertain compensation for the part thereof occupied by the State as a highway, under claim to an easement therein for highway purposes, must, in establishing a clear legal right to the relief sought, show a right in the occupied portion thereof superior to that of the State.' Point 2, Syllabus, Childers v. State Road Commissioner, 124 W. Va. 233 .

2. In mandamus the relator must show a clear legal right to the relief which he seeks.

John H. Goad, Martin C. Bowles, Charleston, for relators.

John G. Fox, Atty. Gen., T. D. Kauffelt, Donald L. Schaffer, Asst. Attys. Gen., for respondent.

HAYMOND, Judge.

In this original proceeding in mandamus the petitioners, R. H. Dunn and Janet A. Dunn, his wife, seek a writ from this Court to compel the defendant, The Honorable H. K. Griffith, State Road Commissioner of West Virginia, to institute a proceeding in eminent domain against the petitioners in the Circuit Court of Kanawha County to determine and award just compensation for a parcel of land, claimed by the petitioner R. H. Dunn, heretofore taken by the state road commission for use as a public highway and damages caused by the construction of such highway to the residue of the land owned by petitioner R. H. Dunn.

The petition was filed November 24, 1953, and on November 30, 1953, this Court issued a rule returnable January 13, 1954. At that time, by agreement of the attorneys for the petitioners and the attorneys for the defendant and permission of this Court, hearing upon the petition was continued until April 13, 1954, to enable the parties to obtain the testimony of witnesses by depositions. On April 13, 1954, this proceeding was submitted for decision upon the petition; the answer and a special plea of the statute of limitations of the defendant, filed January 12, 1954; the demurrer and a special replication, designated a 'special plea', of the petitioners to the special plea of the defendant, filed March 26, 1954; depositions in behalf of the respective parties and certain exhibits attached to such depositions, filed April 13, 1954; and the written briefs and the oral arguments in behalf of the respective parties.

There is little, if any, dispute in the material facts disclosed by the foregoing pleadings and the depositions of the witnesses and the issues involved present questions of law.

In 1941 the state road commission undertook to increase the width, and to construct a concrete surface on the right of way, of a public highway known as U. S. Route No. 60 in Louden District, Kanawha County, which is a part of the primary road system of this State, on the south side of which a tract of land of 10.17 acres owned by petitioner R. H. Dunn abutted for a distance of several hundred feet. At that time the boundary line between this tract and the right of way of the highway was indicated by several iron pins set in the ground at different locations along the edge of the highway.

During the course of the improvement some equipment and material used by the commission in the construction of the project and a quantity of dirt from the right of way were temporarily placed upon the adjoining land of the petitioner R. H. Dunn who then was, and evidently still is, a busy medical practitioner and the owner of a hospital in the City of South Charleston. The presence of these objects on his property led him to discuss the extent of the improvement with respect to the boundary of his land with a representative of the commission who, according to the testimony of Dr. Dunn told him that in the construction of the highway the commission 'was not going to take' any of his land. Dr. Dunn also testified that he relied upon this statement, did not investigate the location of the highway with respect to his property, and did not know that any part of the highway was actually constructed on his property until some time in 1951 or 1952 when he learned of the encroachment in connection with negotiations between him and the commission by which it sought to acquire additional land from him to extend the width of the highway at that time which resulted in the institution by the state road commissioner of a condemnation proceeding for that purpose which has not been determined and is now pending in the Circuit Court of Kanawha County; and that he did not know the name of the person who told him that the commission would not take any of his land but that the person with whom he talked was present when the work was in progress and appeared to be the engineer in charge of the project.

The work done in 1941 was finished and the highway was opened to the use of the traveling public on September 24, 1941. When the highway was completed a portion of it was actually located on a strip several feet in width of the land of Dr. Dunn abutting the right of way of the highway for a distance of several hundred feet. The area of the land so occupied by the highway is 6,549 square feet. The highway as located and constructed has been continuously used as a public highway since September 24, 1941, and public moneys and labor have been expended on it. The petitioners have not executed any conveyance to the commission of any part of the land occupied by the highway and they have not received any compensation for any of the land so taken by the commission. The actual encroachment of the highway upon the land was not discovered by the commission until some time in 1952 when, from a survey and a map made by it of the boundary between the abutting land and the right of way, it was definitely determined that a portion of the highway was constructed on the abutting strip of land and has been so located since its completion in 1941.

By written stipulation between the attorneys for the respective parties to this proceeding it is agreed that the petitioner R. H. Dunn, prior to 1941, and at the time the commission took the land occupied by a portion of the highway, owned the property described in the petition containing 10.17 acres, and that he still owns it subject to any rights that may have been acquired by the commission by the construction of the highway on the property in 1941 and the use of the highway by the public since that time.

The petitioners base their claim to the relief which they seek in this proceeding on substantially these grounds: (1) The petitioner R. H. Dunn is the owner of the land taken by the commission in 1941, and, as such, is entitled to an award of compensation for the land taken and damages to the residue of his land; (2) the location of the highway upon the land and the use of the highway by the public since September 24, 1941, and the expenditure of public moneys and labor upon it, did not deprive the petitioner R. H. Dunn of his ownership of or his right to compensation for the land so occupied by the highway and damages to the residue of his land; (3) the representative of the commission, having told the petitioner R. H. Dunn, in 1941 that the commission in the construction of the highway would not take any of his land, and the petitioner, having relied upon that statement, and he and the commission not knowing of the encroachment of the highway on his land until more than ten years after the highway was opened to the use of the public in 1941, the petitioners are not barred of their right to maintain this proceeding by any statute of limitations; and (4) the provisions of Section 3, Article 1, Chapter 17, Code, 1931, are inapplicable but, if applicable, have not been complied with by the defendant.

On the contrary, the defendant contends, in substance, as a defense to this action, that (1) the title to the easement occupied by the highway at and prior to the institution of this proceeding was and is in the State of West Virginia and that such easement is not now owned by the petitioner R. H. Dunn; (2) the provisions of Section 3, Article 1, Chapter 17, Code, 1931, apply to the land occupied by the highway and have been fully complied with by the defendant; and (3) the right of the petitioners to maintain this proceeding is barred by Section 3, Article 1, Chapter 17, Code, 1931, and by Section 12, Article 2, Chapter 55, Code, 1931, as amended.

Section 3, Article 1, Chapter 17, Code, 1931, upon the operation of which the defendant chiefly relies, after defining the meaning and the effect of the words 'road', 'public road' and 'highway' contains these provisions: 'Any road shall be conclusively presumed to have been established when it has been used by the public for a period of ten years or more, and public moneys or labor have been expended thereon, whether there be any record of its conveyance, dedication or appropriation to public use or not. In the absence of any other mark or record, the center of the traveled way shall be taken as the center of the road, and the right of way shall be designated therefrom an equal listance on each side, but a road may be constructed on any part of the located right of way when it is deemed advisable so to do: Provided, That a proper record of such right of way for a county-district road, showing the exact location thereof, shall be entered by the county court of the county in which such road is to be constructed; and that such a record of the right of way for a state road shall be made and entered as provided by section eight, article four of this chapter.'

Section 8, Article 4, Chapter 17, Code, 1931, referred to in the foregoing quotation, was repealed and Section 7, Article 4, Chapter 40, Acts of the Legislature, 1933, First Extraordinary Session was enacted in lieu of Section 8. Section 7...