Sticklen v. Kittle

• Citation: 287 S.E.2d 148,168 W.Va. 147
• Decision Date: 15 October 1981
• Docket Number: No. CC925,CC925
• Court: West Virginia Supreme Court
• Parties: , 2 Ed. Law Rep. 897 John M. STICKLEN and William Dyke v. Robert KITTLE, The Board of Education of the County of Kanawha, Harry A. Wallace, III, Matthew Kinsolving, Paul Leary, Roseanna Young and Stuart Calwell, Jr. and CENTRAL WEST VIRGINIA REGIONAL AIRPORT AUTHORITY v. Robert KITTLE, The Board of Education of the County of Kanawha, Harry A. Wallace, III, Matthew Kinsolving, Paul Leary, Roseanna Young and Stuart Calwell, Jr.

Page 148

287 S.E.2d 148

168 W.Va. 147, 2 Ed. Law Rep. 897

John M. STICKLEN and William Dyke v. Robert KITTLE, The Board of Education of the County of

Kanawha, Harry A. Wallace, III, Matthew

Kinsolving, Paul Leary, Roseanna Young

and Stuart Calwell, Jr.

and

CENTRAL WEST VIRGINIA REGIONAL AIRPORT AUTHORITY v. Robert KITTLE, The Board of Education of the County of

Kanawha, Harry A. Wallace, III, Matthew

Kinsolving, Paul Leary, Roseanna Young

and Stuart Calwell, Jr.

No. CC925.

Supreme Court of Appeals of West Virginia.

Oct. 15, 1981.

Syllabus by the Court

1. An avigation easement in the airspace used by aircraft over lands adjacent to an airport cannot be acquired by prescription.

2. "The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Syl., Flowers v. City of Morgantown, W.Va., 272 S.E.2d 663 (1980).

3. As a general rule, a fair test as to whether a particular use of real property constitutes a nuisance is the reasonableness or unreasonableness of the use of the property in relation to the particular locality involved, and ordinarily such a test to determine the existence of a nuisance raises a question of fact.

[168 W.Va. 148] Lively, Light & Taylor and W. T. Lively, Jr., Charleston, for plaintiffs Sticklen and Dyke.

Jackson, Kelly, Holt & O'Farrell, Thomas E. Potter, John M. Slack, III and James R. Snyder, Charleston, for plaintiff Central W. Va. Regional Airport Authority, etc.

Weaver, Hayes & Moredock and Thomas W. Hayes, Love, Wise, Robinson & Woodroe, John O. Kizer, Mario J. Palumbo and Kurt E. Entsminger, Charleston, for defendants.

McHUGH, Justice:

This action is before this Court upon certified questions from the Circuit Court of Kanawha County, West Virginia, and the August 27, 1981, orders of that court dismissing the complaints and amended complaints of the plaintiffs. The certified questions were docketed by this Court by order entered September 2, 1981. ¹ Accordingly,

this Court [168 W.Va. 149] has before it all matters of record and the briefs and argument of counsel

The certified questions before this Court arise from the dismissal by the Circuit Court of Kanawha County, West Virginia, of the plaintiffs' complaints and the amended complaints in Civil Actions CA-81-1050 and CA-81-2693. In those actions, the plaintiffs sought to enjoin the defendants from constructing a consolidated high school upon a certain tract of land in the Charleston area known as the "Vaughan site."

The defendants in this action are the Board of Education of the County of Kanawha and its individual members. Robert Kittle, Superintendent of Kanawha County Schools, was also joined as a defendant.

PROCEDURAL HISTORY

On March 13, 1981, a civil action, No. CA-81-1050, was filed in the circuit court against the defendants by John M. Sticklen and William Dyke. That action (hereinafter referred to as the "Sticklen action") was brought by Sticklen and Dyke individually and as representatives of a class of parents of children subject to attendance at the proposed consolidated high school. The Sticklen action sought to temporarily and permanently enjoin the defendants from constructing the consolidated high school at the Vaughan site.

The Central West Virginia Regional Airport Authority (hereinafter "Authority") filed a motion to intervene in the Sticklen action, No. CA-81-1050, which motion was granted by the circuit court. Moreover, the Authority filed a separate action, No. CA-81-2693, against the defendants. As did the individual plaintiffs in the Sticklen action, the Authority sought to temporarily and permanently enjoin [168 W.Va. 150] the defendants from constructing the consolidated high school upon the Vaughan site. By order the circuit court consolidated the Sticklen action, No. CA-81-1050, and the action instituted by the Authority, No. CA-81-2693. By another order, however, the circuit court dismissed the Sticklen action insofar as it constituted a class action.

Pursuant to W.Va.R.Civ.P. 12(b)(6), the defendants moved to dismiss for failure to state a claim upon which relief could be granted. The circuit court granted the defendants' motions and dismissed the complaints in the two actions, Nos. CA-81-1050 and CA-81-2693. In dismissing the complaints against the defendants, the circuit court, upon its own motion, certified certain questions of law to this Court.

FACTS

In September, 1979, a Citizens Advisory Committee recommended to the Board of Education of the County of Kanawha that two Charleston schools known as Charleston High School and Stonewall Jackson High School be consolidated into a new school and that Stonewall Jackson High School be renovated and used as a junior high school. Electing to proceed with consolidation, the Board created an Advisory Site Selection Committee. The Site Selection Committee considered eighteen various locations for the new consolidated school and ultimately concluded that the Vaughan site and the Newhouse Branch site were favorable.

The Site Selection Committee recommended the Newhouse Branch site to the Board. The committee suggested, however, that it would reconvene to discuss the Vaughan site if the Newhouse Branch recommendation resulted in difficulty.

Subsequently, the Board decided to construct the consolidated high school at the Vaughan site. Specifically, on May 22, 1980, the Board, after providing the public with an opportunity for discussion, selected the Vaughan site for the new school. ²

The Vaughan site is a tract of land located at Elk Two Mile Creek, Charleston North District, Kanawha County, West Virginia. It lies some 2,400 feet from the extended center line of the primary instrument runway and within 3,000 feet of the general aviation runway of the airport. Moreover, based upon the master plan for Kanawha Airport, the Vaughan site allegedly falls within certain "noise footprints" of aircraft operations. Furthermore, the plaintiffs contend that the site lies under generally accepted and normal aircraft flight patterns and directly under the flight path for incoming and departing helicopter traffic.

As a result of the proximity of the proposed school site to the airport and the alleged problems caused thereby, the Board of Members of the Airport Authority on June 2, 1980, adopted a resolution opposing the Vaughan site as the location for the school. In a newspaper article appearing in the Charleston Daily Mail on June 13, 1980, defendant Kittle, Superintendent of Kanawha County Schools, was quoted as stating that he would seek alterations in any aircraft or helicopter flight patterns over the proposed school at the Vaughan site.

On November 14, 1980, a meeting was held before the West Virginia Board of Education wherein a delegation including representatives of the Airport Authority appeared in opposition to the Vaughan site. Nevertheless, the West Virginia Board of Education approved the Vaughan site for the location of the new consolidated high school.

Work began at the Vaughan site prior to the commencement of proceedings before this Court.

The questions certified to this Court, and the rulings of the circuit court thereon, are set forth in certificates signed by the circuit judge on August 27, 1981. The questions certified with respect to the action of the Authority, No. CA-81-2693, are as follows:

1. Whether a [sic] avigation easement can be acquired over the land of an adjacent land owner [sic] by virtue of aircraft overflights that result from the use of the adjacent regional airport? If such an avigation easement can be acquired, is it acquired by the Regional Airport Authority or by the owners of the aircraft making such overflights?

2. In the absence of a statute regulating the same, does the establishment of an airport limit the right of an adjacent land owner [sic] to make any desired, proper, beneficial use of his land, not amounting to a nuisance, notwithstanding the fact that such use may interfere with the adjoining airport?

3. Does the construction of a high school upon land adjacent to an airport constitute a nuisance enjoinable by a court upon application of the Airport Authority?

4. Whether the possible loss of federal grants to the Regional Airport Authority because of the permitted incompatible use (construction of the new high school) of adjacent land is a sufficient basis to allow a court, upon application of the Regional Airport Authority, to enjoin such construction?

5. Whether the plan of private developers, if any, to develop the property surrounding the proposed site of the new high school, and also adjacent to the airport facility, that could precipitate civil and/or administrative action against the Regional Airport Authority, provide a sufficient basis to allow a court, upon application of the Regional Airport Authority, to enjoin the construction of the new school and thereby chill the development of surrounding property?

6. Whether the inaction or failure of the elected members of the county board of education to repudiate the actions of the Superintendent of Schools in constructing the new school at a location on the proposed site that differs from the location upon said site voted upon and adopted by a resolution of said Board constitutes an implied ratification of the change in location.

The rulings of the circuit court were adverse to the Authority with respect to all of the above certified questions. Essentially, the circuit court held that an avigation easement could not be acquired by prescription and that the construction of the new high school at the Vaughan site does not constitute an enjoinable nuisance. As indicated below, we affirm the rulings of the Circuit Court of Kanawha County with respect to all of the certified questions in the action filed by the Authority, with the...