State ex rel. Riddle v. Department of Highways

Decision Date16 February 1971
Docket NumberNo. 12940,12940
Citation154 W.Va. 722,179 S.E.2d 10
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. Dudley Cyrus RIDDLE v. The DEPARTMENT OF HIGHWAYS of West Virginia and William S. Ritchie, Jr., Commissioner of the Department of Highways of West Virginia.

Syllabus by the Court

He who seeks relief by mandamus must show a clear legal right to the remedy.

Baer & Napier, William K. Napier, Huntington, for relator.

Claude H. Vencill, Legal Division, W. Va. Dept. of Highways, Charleston, for respondents.

HAYMOND, Judge.

In this original mandamus proceeding, instituted in this Court March 3, 1970, the petitioner, Dudley Cyrus Riddle, seeks a writ to compel the defendants, the Department of Highways of West Virginia and William S. Ritchie, Jr., Commissioner of the Department of Highways of West Virginia to institute an eminent domain proceeding against the petitioner in the Circuit Court of Wayne County, West Virginia, to ascertain damages to a tract of land of 8.82 acres owned by the petitioner caused by the relocation of West Virginia State Route 75 in Wayne County, West Virginia, which deprived the petitioner of an alleged right of way or easement which afforded him access to and from the 8.82 acre tract to old State Route 75 before its relocation and to Wayne Avenue, a public highway in or near the city of Kenova.

Upon the petition and its exhibits consisting of two maps showing the location of the land of the petitioner and the relocation of State Route 75, this Court issued a rule returnable May 12, 1970. By agreement of the parties and leave of this Court the proceeding was continued from time to time until January 13, 1971, at which time it was submitted for decision upon the petition, the demurrer, the answer, the special plea of the statute of limitations of the defendants, the depositions of witnesses in behalf of the petitioner and the briefs and the oral arguments in behalf of the respective parties.

By deed dated February 7, 1919, the tract of 8.82 acres of land now owned by the petitioner was conveyed to his parents Lawrence Riddle and Leva Riddle by Kenova-Huntington Land Company and by deed dated June 30, 1961 the same land was conveyed by Lawrence Riddle and Leva Riddle to the petitioner. In both deeds the land is designated as a tract or parcel of land situate south of the city of Kenova, in Wayne County, West Virginia, and the description states that it begins at a stake in the center line of a 30 foot road 4856.3 feet distant from the intersection of 13th Street and 11th Street as indicated by a plat of Kenova attached to an earlier deed made in 1892 and recorded in the office of the Clerk of the County Court of Wayne County, West Virginia. The first line of the description extends along the road for a distance of 15 feet to a stake at the edge of the road. From that point the boundaries leave the road and follow various courses and distances to the point of beginning. Neither deed describes or locates the road and neither deed conveys any easement or right of way for ingress and egress from the tract of land to 13th Street or 11th Street and the deed contains no description or indication of the location of the road to or from the intersection of 13th Street and 11th Street or Wayne Avenue. The map filed as Exhibit No. 1 with the petition showing the location of the 8.82 acre tract is not a duly recorded map of any addition to the city of Kenova but appears to be a portion of a larger map of the area made by the State Road Commission and used by it in connection with the relocation of State Route 75. Although the map shows a 'DEDICATED ROAD NOT CONSTRUCTED' extending from the petitioner's tract of land and over tracts of land designated as Nokie Gillette and Hazel Kelly and Eulin Pelfrey to Wayne Avenue, the dimensions of the road are not shown by the map.

The petitioner testified that the road indicated on the map existed and extended to Wayne Avenue from 1919, the date of the deed to Lawrence Riddle and Leva Riddle, and his son and two other witnesses testified that the road had been used at least since 1942 by his father, by Lawrence Riddle and other members of his family, and by other persons in going to and from Wayne Avenue. The evidence, however, does not show how often the road was used by the petitioner or his father or other members of the family in going to or from Wayne Avenue to the 8.82 acre tract which was hilly and unimproved land. There was, however, some evidence that the owner of the land at times used a portion of it as a place to hunt and for farming and pasturage. The evidence does not show the dimensions of the road in width or length other than the deed recitals that the beginning point of the description of the 8.82 acre tract was located in the center of a 30 foot road, or that the use of the unconstructed road was continuous or adverse, or that the 8.82 acre tract was a part of any addition to the city of Kenova shown by any plat of such addition indicating that lots of such addition abutted on streets of an addition or that any plat of such addition was admitted to record in the office of the Clerk of the County Court of Wayne County, or that any such plat showed the 'DEDICATED ROAD NOT CONSTRUCTED' indicated on the map of the State Road Commission filed as an exhibit with the petition in this proceeding. Moreover, the evidence does not show that the owner of the land of which the tract of 8.82 acres is a part at any time caused the land to be surveyed and platted into lots, streets and alleys according to a recorded or unrecorded plat and sold any of the lots by reference to such plat so as to constitute either a public or private dedication of the streets and alleys to the use of the public or the puchasers of such lots.

State Route 75 was located about 200 feet from the tract of land of the petitioner and was constructed upon a fill about 75 feet high and, according to the petitioner, has positively and permanently destroyed the means of ingress and egress to his land. State Route 75 as relocated, however, does not occupy or encroach upon any portion of the 8.82 acre tract. The claim for damages which the petitioner seeks to have ascertained and determined in an eminent domain proceeding is for the destruction of his alleged right of access from the 8.82 acre tract of land to and from a public highway which right, if sufficiently established by proof, is a property right of which the petitioner can not be deprived without just compensation. See State ex rel. Wiley...

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10 cases
  • State ex rel. Gooden v. Bonar
    • United States
    • West Virginia Supreme Court
    • October 5, 1971
    ...Court has held in many cases that he who seeks relief by mandamus must show a clear legal right to the remedy. State ex rel. Riddle v. Department of Highways, W.Va., 179 S.E.2d 10; State ex rel. Nelson v. Ritchie, W.Va., 177 S.E.2d 791, and the many cases cited in the opinion in the Nelson ......
  • Veach v. Day
    • United States
    • West Virginia Supreme Court
    • June 30, 1983
    ...by such use." See, also, Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976); State ex rel. Riddle v. Department of Highways, 154 W.Va. 722, 179 S.E.2d 10 (1971). We also stated in syllabus point 1 of Berkeley Development Corp. v. Hutzler "The burden of proving an ea......
  • Cramer v. West Virginia Dept. of Highways
    • United States
    • West Virginia Supreme Court
    • November 21, 1988
    ...519, 336 S.E.2d 30, 31 (1985); syl. pt. 2, Reger v. Wiest, 172 W.Va. 738, 310 S.E.2d 499 (1983); State ex rel. Riddle v. Department of Highways, 154 W.Va. 722, 725, 179 S.E.2d 10, 13 (1971). The appellees have not contended that the road in controversy became a public road by condemnation o......
  • Wilson v. Seminole Coal, Inc.
    • United States
    • West Virginia Supreme Court
    • November 8, 1985
    ...that the road is public, as by maintenance. Reger v. Weist, --- W.Va. ----, 310 S.E.2d 499 (1983); State ex rel. Riddle v. Department of Highways, 154 W.Va. 722, 179 S.E.2d 10 (1971). No one contends that the road in controversy became a public road by condemnation or dedication. The appell......
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