State ex rel. Wiley v. State Road Commission

• Decision Date: 05 November 1963
• Docket Number: No. 12269,12269
• Citation: 133 S.E.2d 113,148 W.Va. 76
• Parties: STATE ex rel. Henry L. WILEY et al. v. STATE ROAD COMMISSION or West Virginia, etc., and Burl A. Sawyers, State Road Commissioner, etc.
• Court: West Virginia Supreme Court

Page 113

133 S.E.2d 113

148 W.Va. 76

STATE ex rel. Henry L. WILEY et al. v. STATE ROAD COMMISSION or West Virginia, etc., and Burl A Sawyers, State Road Commissioner, etc.

No. 12269.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 10, 1963.

Decided Nov. 5, 1963.

Syllabus by the Court

1. The right of direct access to a street or highway by an owner of land which abuts on said street or highway is a property right of which the property owner cannot be deprived without just compensation.

2. The property right of direct access to a street or highway by an owner of land does not exist if such property abuts on such street or highway after, but not before, it is relocated and if when construction is completed such roadway is designated as a controlled-access street or highway and the abutting landowners did not previously have direct access thereto.

3. When an extraordinary proceeding instituted under the original jurisdiction of this court is submitted for final determination by the court upon petition and answer, but issues of fact are involved upon which the issues of law cannot be decided without the submission of evidence or a stipulation of facts or other competent proof, the denied material allegations of petition are not considered as sustained, and undenied material allegations contained in the answer must be considered as being true.

4. 'A writ of mandamus will be issued only upon a showing that relator has a clear legal right to the relief sought.' Point 3, syllabus, State ex rel. Neal v. Barron, W.Va., (120 S.E.2d 702).

James B. McIntyre, Thomas S. Moore, Charleston, for relators.

Theodore L. Shreve, Charleston, for respondents.

BERRY, President.

This is a proceeding in mandamus instituted under the original jurisdiction of this Court. The petitioners, Henry L. Wiley and Betty L. Wiley, seek to compel Burl A. Sawyers, State Road Commissioner of West Virginia, to institute condemnation proceedings to ascertain damages, if any, due petitioners for an alleged denial to them of direct access to a relocated section of U. S. Route 60 in the vicinity of Rand, Kanawha County, West Virginia.

A rule to show cause as to why the relief prayed for should not be granted was issued on July 31, 1963, returnable to September 4, 1963, and continued to September 10, 1963, at which time it was submitted on arguments and briefs to the Court for decision.

The only pleadings in connection with this proceeding are the petition filed by the petitioners and an answer filed by the respondents. No evidence or proof was submitted, nor any stipulation of facts filed. Allegations contained in the petition which would warrant the granting of the writ are denied by the respondents' answer, which also raises defenses of the nature of affirmative allegations as distinguished from denials.

The land involved in this proceeding is part of a real estate development initiated in 1913 by the then owner of the land in question, Plus R. Levi, who recorded a plat in that year showing the lots in question, with a street called Elmwood Avenue in connection therewith and providing access thereto. In 1944 the State Road Commission of West Virginia acquired title by purchase to part of the property in question from the then owners of said property in question, Lots Numbers 5 and 6, Block G-1, Levi, Malden District, Kanawha County, West Virginia, and the land purchased by the State Road Commissioner apparently included all of Elmwood Avenue. The purchase of this land from the predecessors in title was done in contemplation of the relocation of U. S. Route 60. The petitioners obtained title to the remaining portion of Lots 5 and 6, Block G-1, Levi, Malden District, Kanawha County, West Virginia in 1951, 1955 and 1963. The plat showing Lots 5 and 6, as laid out in 1913 and recorded in the office of the clerk of the county court of Kanawha County in that year was not made a part of the record in this proceeding, and the exact amount of said property, or lots acquired by the State Road Commission in 1944, is not indicated by any map or shown by the record.

Although it is alleged by the petitioners in their petition that the property owned by them abuts U. S. Route 60, which is denied in respondents' answer, it is clear from other allegations contained in the petition and deduced from the answer that the property in question never abutted U. S. Route 60 until it was relocated and declared a limited-access highway by the respondents in 1962.

It would appear that if the petitioners are entitled to any relief in this matter it would have to be based on an allegation contained in the petition wherein it is stated that the respondents 'relocated U. S. Route No. 60, superimposing a portion thereof, upon the situs of the then existing Elmwood Avenue.', all of which is denied in the answer filed by the respondents.

As heretofore stated, no proof was taken to support this allegation and if Route 60, when relocated, was not superimposed on any portion of Elmwood Avenue, or if Elmwood Avenue was a private road and was purchased in fee from all parties having any interest therein, the petitioners could not prevail in this proceeding, because they would have no clear legal right thereto.

Relocated U. S. Route 60 was barricaded at both ends until it was opened in 1962 as a freeway or limited-access highway. However, during the interim, while it was being built and before its opening as a freeway or limited-access highway, the petitioners were allowed by permit to cross the unfinished highway in order to get to U. S. Route 60, which was located on the other side of the New York Central Railroad tracks. It was necessary for the petitioners to cross these tracks before entering the then located U. S. Route 60, even before the relocated Route 60 was ever built.

It appears from the briefs of both parties that in 1960 the respondents obtained an additional portion of land which ran parallel to the new U. S. Route 60 and constructed a 'frontage' road thereon, which afforded the petitioners access to the new U. S. Route 60 at a place suitable to the respondents, but not suitable to the petitioners, because it did not afford them direct access to the new U. S. Route 60.

It is true that the right of direct access to a street or highway by an owner of land which abuts on said street or highway is a property right of which the property owner cannot be deprived without just compensation. State ex rel. L. L. Ashworth v. State Road Commission, W.Va., 128 S.E.2d 471; 29 C.J.S. Eminent Domain § 105 Easements at page 912. However, damages may not be recovered in such cases by owners of...