Stephenson v. Cavendish

• Decision Date: 09 May 1950
• Docket Number: No. 10257,10257
• Citation: 19 A.L.R.2d 720,134 W.Va. 361,59 S.E.2d 459
• Parties: , 19 A.L.R.2d 720 STEPHENSON et al. v. CAVENDISH.
• Court: West Virginia Supreme Court

Page 459

59 S.E.2d 459

134 W.Va. 361, 19 A.L.R.2d 720

STEPHENSON et al. v. CAVENDISH.

No. 10257.

Supreme Court of Appeals of West Virginia.

Submitted April 11, 1950.

Decided May 9, 1950.

Syllabus by the Court.

1. A county court having acquired and paid for easements and rights of way for the construction of primary and secondary public roads prior to July 1, 1933, from the holder of a base or defeasible fee in the lands through which such roads are constructed is not liable to the owners of the reversionary fee simple estate which did not vest in such owners until February 3, 1945.

2. A cause of action does not accrue to contingent reversioners entitled to a fee simple estate in land upon the happening of an uncertain event so as to start the running of statutes of limitation, until such event occurs.

3. A conveyance by the owner of a base or defeasible fee in land conveys no greater estate than he owns, and the estate acquired by the grantee from such owner is terminated upon the happening of the event, occurrence, or condition which would cause a defeasance as to the original owner.

4. A statute of limitation repealed prior to the accrual of a cause of action is not a bar to the enforcement of rights asserted in said cause, which were acquired subsequent to such repeal.

Eakle & Eakle, Clay, for petitioners.

William C. Marland, Attorney General, Thomas J. Gillooly, Assistant Attorney General, for defendant.

LOVINS, President.

This is an original proceeding in mandamus instituted by Liza Jane Stephenson, Mary Stephenson, Mavis Callison Stratton, Howard Dunford, Herbert Dunford, Jake Dunford, Earl Dunford, Locie Dunford Fowler, Robert Stephenson, Reese Stephenson, Jess Stephenson, Fonda Stephenson Moore, Della Stephenson Lanham, and Myrtle Stephenson Roberts, hereinafter designated as 'petitioners', against Ray Cavendish, State Road Commissioner of West Virginia, hereinafter referred to as 'respondent'. The purpose of this proceeding is to compel respondent to institute a proceeding in eminent domain in the Circuit Court of Nicholas County for the purposes of condemning rights of way for road purposes, ascertaining the compensation, if any, to which petitioners are entitled for the lands taken by said rights of way, and determining the damages, if any, to the residue of the lands, which petitioners own through which said rights of way were taken.

Petitioners are the children of Madison Stephenson, or persons who claim under such children.

On the 7th day of December, 1887, Madison Stephenson and wife conveyed to Mary S. Stephenson and Van M. Stephenson 'all the land owned by [Madison Stephenson] the party of the first part in Nicholas County during her natural life and at her death to go to her son, Van M. Stephenson and his heirs, and in the event that Van M. Stephenson shall die without any heirs, then the real estate herein conveyed shall go back to the surviving heirs of Madison Stephenson forever.' Mary S. Stephenson died prior to February 3, 1945; and Van M. Stephenson died February 3, 1945, leaving no children surviving.

In the case of Stephenson v. Kuntz, W. Va., 49 S.E.2d 235, 245, it was held by this Court that Van M. Stephenson upon the death of Mary S. Stephenson took a base defeasible or qualified fee simple estate in said land; and that the land on the death of Van M. Stephenson without surviving children, passed to their descendants. In that case this Court did not pass on the question of waste asserted in that suit by the petitioners in this proceeding, for the reason that the trial chancellor had made no adjudication on that question.

Upon remand the Circuit Court of Nicholas County entered a decree adjudicating, among other things, that the owners of the defeasible fee were not entitled to recover for waste in the circumstances of this case; sustained a demurrer to that part of the answer of petitioners filed in that suit, setting up a claim for affirmative relief; and denied the prayer for affirmative relief 'without prejudice to the assertion of said claims against any person not a party to this cause.'

We are here concerned only with a tract of 241.5 acres, being the remaining portion of the original tract of land conveyed by Madison Stephenson.

By deed dated January 5, 1923, Van M. Stephenson conveyed an easement in the land to the County Court of Nicholas County, over and on which State Route No. 39, referred to in the petition as Route No. 19, was constructed. The easement was entered upon November 8, 1923, and the road was constructed prior to the year 1926. By deeds bearing date August 25, 1925, and August 5, 1929, respectively, Van M. Stephenson conveyed to said county court rights of way upon which county-district roads, now designated as secondary roads Nos. 19/14 and 19/15, were constructed prior to July 1, 1933, on which date the construction, maintenance, and control of said roads devolved upon the state road commission by operation of statute. Since the construction of the aforesaid roads, they have been continuously occupied, used, and maintained as a part of the road system of this State.

Respondent answered the petition admitting the allegations thereof, except that petitioners were vested with title to the rights of way in question. Respondent contends that this proceeding, if maintainable, should be against the County Court of Nicholas County; that the rights of way were established by operation of law under Code, 17-1-3, since they were constructed prior to July 1, 1933; and that they have been continuously 'owned, occupied, used and maintained' by the State for more than ten years; that the lands occupied by the rights of way were taken and damaged more than five years before the institution of this proceeding, and therefore any action by petitioners is barred by the statute of limitations. Respondent also cites Code, 36-2-1, and 36-2-2, in support of his contention that petitioners had such estate in the land as could have been asserted by them prior to the death of Van M. Stephenson; and that their failure to do so sufficed to cause the running of time limitations hereinafter discussed.

Petitioners demurred to the answer of respondent upon the ground that the State's possession did not become adverse to the petitioners' rights and estate until Van M. Stephenson died on February 3, 1945, and that this proceeding was commenced in this Court on February 2, 1950.

In his brief, respondent also contends that the right of action, if any, would be barred by the following statute: '* * * After a public road has been established and constructed heretofore or hereafter and used as such for a period of one year, and no claim for damages or compensation has been made, the right-of-way for such road shall vest in the county court or the state, as the case may be, and they shall not be liable for damage or compensation arising out of the construction of said road.' Chapter 6, Acts of the Legislature, Regular Session, 1923, Section 138.

The following questions are presented in this proceeding: (1) May the respondent be compelled to bring a proceeding in eminent domain with respect to the easements or rights of way purchased from the owner of a defeasible, base or qualified fee by the county court of a county at a time when the responsibility for the acquisition of rights of way for state roads rested upon such court; (2) are the easements or rights of way here considered, established by operation of law, having been used and maintained by the county court and the state road commission for more than ten years; (3) is the right of action, if any, barred by the five-year statute of limitations; and (4) is the right of action barred by Chapter 6, Section 138, Acts of the Legislature, Regular Session, 1923.

Is the County Court of Nicholas County now responsible for the acquisition of the rights of way here considered? We have been cited to no authority and have found none which would place such responsibility upon the county court. The duty of acquiring the rights of way here considered was formerly imposed upon the county court, but since July 1, 1933, the state road commissioner under statutory provisions has been and is required to 'take over the county-district roads and * * * assume charge of their further construction, reconstruction and maintenance as a part of the state road system.' Chapter 40, Article IV Section 2, Acts of the Legislature, First Extraordinary Session, 1933. Section 4, Article IV, Chapter 40, id., and Section 1 of Article X, Chapter 40, id. As to the duty of the state road commissioner to acquire the rights of way necessary for roads and road maintenance, see Article II(a), Section 9, Subparagraph 10, Chapter 40, id., as amended by Chapter 13, Acts of the Legislature, First Extraordinary Session, 1936. In view of the foregoing statutory provisions we perceive no authority now existing in the County Court of Nicholas County to acquire and pay for the rights of way here considered. The County Court of Nicholas County acquired such estate in the rights of way as Van M. Stephenson possessed at the time of the conveyance, and by operation of law the same estate so acquired by said court was transferred to the state road commissioner, no greater, no less.

Respondent has cited certain cases decided by this Court in support of his contention that he is absolved from the obligation to acquire title to the rights of way on account of the former duty imposed upon the County Court of Nicholas County. Kinney v. County Court, 110 W.Va. 17, 156 S.E. 748; Carden v. County Court, 110 W.Va. 195, 157 S.E. 411; Hatcher v. County Court, 115 W.Va. 95, 174 S.E. 690; Trump v. State Road Commission, 116 W.Va. 625, 182 S.E. 760. These cases are not applicable here. They involved the right to recover damages incurred by the construction of public roads for which rights of way...