State Road Commission v. Oakes, 12441

• Decision Date: 12 July 1966
• Docket Number: No. 12441,12441
• Citation: 150 W.Va. 709,149 S.E.2d 293
• Parties: The STATE ROAD COMMISSION of West Virginia, a corporation, et al. v. Willard L. OAKES et al.
• Court: West Virginia Supreme Court

Page 293

149 S.E.2d 293

150 W.Va. 709

The STATE ROAD COMMISSION of West Virginia, a corporation, et al. v. Willard L. OAKES et al.

No. 12441.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1966.

Decided July 12, 1966.

Syllabus by the Court

1. 'Equity will interfere by injunction, at the suit of a private individual, to restrain others from obstruction of public or private roads, where the obstruction will work a special and peculiar injury to him.' Point 2, syllabus, Bent v. Trimboli, 61 W.Va. 509 (56 S.E. 881).

2. A mandatory injunction affords proper relief against obstruction of a way devoted to public or private use and will be granted when the right of an applicant for such injunction is clear and the necessity for such relief is urgent.

3. 'The finding of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding.' Point 6, syllabus, Daugherty v. Ellis, 142 W.Va. 340 (97 S.E.2d 33).

Payne, Minor, Ray, Price & Loeb, John L. Ray, John V. Ray, Charleston, for appellants.

Paul J. Kaufman, Milton S. Koslow, Charleston, for appellees.

HAYMOND, Judge.

In this civil action instituted in the Circuit Court of Kanawha County in February 1961, the plaintiffs, The State Road Commission of West Virginia, a corporation, and J. Q. Dickinson and Company, a corporation, seek injunctive and other relief from the defendants, Willard L. Oakes and Ada L. Oakes, who are husband and wife. In the action are involved the rights and the interests of the parties in and to a public highway known as West Virginia Secondary State Route 60/12, herein sometimes referred to as Route 60/12, and a roadway known as the Salt Works Road and certain real estate in or near the Town of Malden, in Kanawha County, West Virginia. The real estate involved includes Lots 2, 3, 4, 5, 6, 7, 8, 16, 17 and 33, and the Christy lot adjacent to Lot 8, the Truslow lot, in an area known as the Putney Addition to the Town of Malden, and a tract of approximately 53 acres owned by the plaintiff J. Q. Dickinson and Company, and Lots 9, 10, 11, 12 and 13 in the Putney Addition to the Town of Malden, and the Parks Homestead Lot, which was located before that addition was created, owned by the defendant Ada L. Oakes.

The case was heard by the court in lieu of a jury upon the third amended complaint of the plaintiffs, the answer of the defendants, certain written stipulations of the parties, numerous exhibits consisting of documents, photographs and maps introduced in evidence, and the testimony of witnesses produced in behalf of the respective parties.

By its final judgment entered March 24, 1964, the circuit court, based on factual findings made by it on certain issues in favor of the plaintiffs, awarded costs against the defendants, and, as to the principal questions involved, decreed and held:

'(1) That West Virginia Secondary State Route 60/12, in front (east) of the Parks Homestead Lot and Lots 13, 12, 11 and 10 of the Putney Addition to the Town of Malden, Kanawha County, West Virginia, is forty (40) feet wide and the center line of the said road is the center line of the present asphalt paved surface thereof, and the defendants have encroached on the said West Virginia Secondary State Route 60/12 in front (east) of the Parks Homestead Lot and Lots 13, 12, 11 and 10 of the said Putney Addition with hedges, gate- posts, a fence, a concrete driveway, a concrete sidewalk, a concrete wall and 2-inch pipe.

'(2) That the defendants have also encroached on West Virginia Secondary State Route 60/12 by filling with earth and other materials a drainage ditch formerly situate in front (east) of the Parks Homestead Lot and Lots 13, 12, 11, 10 and 9 of said Putney Addition.

'(3) That the defendants have not encroached on West Virginia Secondary State Route 60/12 in front (east) of Lots Nos. 10 and 9 of said Putney Addition by installing the water tanks which stand four feet above the road, as shown on Plaintiff's Exhibit 24.

'(4) That the defendants, at their cost and expense, do promptly remove all of the aforesaid encroachments on West Virginia Secondary State Route 60/12, to-wit, the fence, concrete driveway and hedge in front of the Parks Homestead Lot, the gateposts, concrete sidewalk and hedge in front of Lots 13 and 12, the hedge in front of Lots 11 and 10 and the concrete wall, the posts and the 2-inch pipe in front of Lot 10 of said Putney Addition.

'(5) That the defendants, at their cost and expense, do promptly remove all of the earth and other materials from the drainage ditch formerly situate in front of the Parks Homestead Lot and Lots 13, 12, 11, 10 and 9 of the Putney Addition and shall restore and re-establish the ditch to the satisfaction of the State Road Commission of West Virginia and that the defendants may, at their election, request the State Road Commission of West Virginia to remove the said earth and other materials from the said ditch and to restore and re-establish it as the Road Commission shall determine, in which event the defendants shall reimburse the Road Commission in full for the cost of such work.

'(6) That the north line of the 53-acre, 2-rood, 2-pole tract owned by J. Q. Dickinson & Company at the southern or upper end of the Town of Malden, Kanawha County, West Virginia, is the line shown on Plaintiff's Exhibit 24 designated 'S. 66 degrees 15 minutes E.' running from a monument on the Kanawha River to a monument in the right-of-way of The New York Central Railroad.

'(7) That George P. Sovick, Civil Engineer, do place a concrete monument on the line shown on Plaintiff's Exhibit 24 designated 'S. 66 degrees 15 minutes E.' at (i) the intersection of the said S. 66 degrees 15 minutes E. line and the west line of Lot 9 of the Putney Addition, as shown on Plaintiff's Exhibit 24, and (ii) the intersection of said S. 66 degrees 15 minutes E. line with the west right-of-way line of West Virginia Route 60/12 as shown on Plaintiff's Exhibit 24.

'(8) That the defendants have encroached on the property of J. Q. Dickinson & Company in the area south of the aforesaid S. 66 degrees 15 minutes E. line, which area is colored in green on Plaintiff's Exhibit 24 by depositing brush, logs and other materials thereon and that said encroachment constitutes a private nuisance against the said J. Q. Dickinson & Company.

'(9) That the defendants, at their cost and expense, do promptly remove all of the brush, logs and other materials deposited on the property of J. Q. Dickinson & Company in the area south of the aforesaid S. 66 degrees 15 minutes E. line, which area is colored in green on Plaintiff's Exhibit 24, and the defendants are perpetually enjoined and restrained from depositing brush, logs and other materials of every kind on said property, from trespassing on said property and from using said property for any purpose or in any manner whatsoever.

'(10) That the defendants have diverted the surface water in the stream which extends in a northerly direction from a 36-inch culvert across the rear of Lots 9, 10, 11, 12, and 13 of said Putney Addition to Kanawha River, by depositing trash, stumps and other materials in the stream and that the flow of the stream has been obstructed by the said materials and by the 15-inch pipe and the 18-inch pipe placed in the channel of the stream by the defendants.

'(11) That the defendants, at their cost and expense, do promptly remove all of the said trash, stumps and other material and all of the said 15- inch and 18-inch pipe from the channel of the stream which extends in a northerly direction from the said 36 inch culvert across the rear of Lots 9, 10, 11, 12 and 13 of said Putney Addition to the Kanawha River, and the defendants are perpetually enjoined and restrained from depositing in the channel of said stream trash, stumps, earth, pipe and other materials of every kind, and from committing any act which would obstruct the natural flow of said stream.

'(12) That the road between the north line of the 53-acre, 2-rood, 2-pole tract of J. Q. Dickinson & Company and West Virginia Secondary State Route 60/12 has not been shown to be a public road by a preponderance of the evidence in this case and no finding is made with reference to whose or what it is.

'(13) That the defendants will not be required at this time to remove the rather unsightly material on the area colored in red on Plaintiff's Exhibit 24, and bounded on one side by the 75 1/2 foot and 73-foot lines and on the opposite side by the traveled portion of the said road between the northern line of the 53-acre, 2-rood, 2-pole tract of J. Q. Dickinson & Company and the West Virginia Secondary Route 60/12.

'(14) That the defendants are hereby perpetually restrained and enjoined from any further encroachment on the said road between the northern line of the 53-acre, 2-rood, 2-pole tract of J. Q. Dickinson & Company and West Virginia Secondary Route 60/12.

'(15) That the defendants are not operating a junk yard within the terms of Section 1 of Article 23 of Chapter 17 of the Code of West Virginia and that J. Q. Dickinson & Company as a private citizen has no right to seek to enjoin the defendants from the operation of a junk yard under the statute.

'(16) That Section 13(b) of Article 19 of Chapter 17 of the Code of West

Virginia relating to the disposal of litter and other material on or near public highways has been repealed and the defendants will not be compelled to comply with said statute.

'(17) That the J. Q. Dickinson & Company is not entitled to any award of damages.'

From the foregoing judgment this Court granted this appeal upon the application of the plaintiff J. Q. Dickinson and Company.

The plaintiff J. Q. Dickinson and Company, referred to in this opinion as the plaintiff, assigns as error the action of the circuit court (1) in...