Sturm v. City of St. Albans, No. 10569

CourtSupreme Court of West Virginia
Citation138 W.Va. 911,78 S.E.2d 462
Docket NumberNo. 10569
Decision Date24 November 1953
PartiesSTURM et al. v. CITY OF ST. ALBANS et al.

Page 462

78 S.E.2d 462
138 W.Va. 911
STURM et al.
v.
CITY OF ST. ALBANS et al.
No. 10569.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 22, 1953.
Decided Nov. 24, 1953.

Page 463

Syllabus by the Court

1. Under Sections 1, 2 and 6, Article 8, Chapter 89, Acts of the Legislature, 1949, Regular Session, a municipal corporation has the authority to construct curb in and sidewalks along a state road within the municipality and to assess the cost against abutting properties as provided in such sections; and, with the approval of the state road commissioner and in the absence of the construction by him of such curb and sidewalks, it may exercise such authority.

2. The state road commissioner in the performance of the statutory duties imposed upon him is not required to construct and pay for curb in and sidewalks along a state road within [138 W.Va. 912] a municipality which the municipality proposes to construct in and along such state road; but, in the exercise of the discretion vested in him, he may construct and pay for such proposed improvements.

3. A decree based on conflicting evidence will be reversed when it appears that it is contrary to the preponderance of the evidence or is clearly wrong.

4. The findings of fact of a trial chancellor, based on conflicting evidence, will not be disturbed on appeal unless such findings are clearly wrong or against the preponderance of the evidence.

Kay, Casto & Chaney, Robert H. C. Kay, Charleston, for appellants.

Poffenbarger & Bowles, Martin C. Bowles, Charleston, for appellees.

HAYMOND, President.

This suit in equity was instituted in the Circuit Court of Kanawha County in August, 1951, by the plaintiffs Shelby L. Sturm, Helene T. Simms, Grace S. Miller, Willie S. Sturm, heirs at law of W. H. Simms, deceased, John Hunt, Walter G. Woods, H. C. Pittenger, Harold B. Leighty, Bertha K. Herzog, Bessie Early, John Coughlin, R. K. Byus, L. H. Seldomridge, Cecil E. McClung, Enoch Wills, Webb Holesapple, Sallie Thomas, L. G. Smith, W. R. Orders, Howard L. Hutchinson, Ella McClung and A. L. Hughes, owners of

Page 464

lands abutting on a public highway, or city street, designated as Alternate [138 W.Va. 913] United States Route 60, and a part of the secondary road system of West Virginia within the City of Saint Albans, for an injunction against the defendants, the City of Saint Albans, a municipal corporation, Gregory L. Funk, its mayor, and O. N. Slater, its clerk. The plaintiffs seek to enjoin the defendants from entering into a contract to build and construct curb and sidewalks abutting the properties of the various plaintiffs along Alternate United States Route 60, also known as Kanawha Terrace, in connection with the paving and the resurfacing of that street between Pennsylvania Avenue at a point near its junction with Second Street, in the business section, and the eastern limits of the city, the proposed improvement covering a distance of approximately two miles, and from assessing any portion of the cost against the properties of the respective plaintiffs.

To the bill of complaint of the plaintiffs the defendants filed their joint and several answer and, upon the bill of complaint, the answer of the defendants, and the general replication of the plaintiffs, the questions presented by the pleadings were referred by the circuit court to one of its commissioners in chancery. The commissioner after hearing the testimony of numerous witnesses produced by the respective parties made and filed his report which contained several findings of law and fact. Numerous exceptions were taken by the plaintiffs to the report of the commissioner, all of which were overruled, and the report, except an item of the estimated assessment for curb against a lot of the plaintiff Shelby L. Sturm fronting 100.2 feet on Kanawha Terrace, the amount of which was changed from $2605.20 to $260.52, was confirmed and the findings of law and fact of the commissioner were adopted by the court. By final decree entered June 21, 1952, the circuit court refused to grant the plaintiffs, other than the plaintiff A. L. Hughes, the relief prayed for in their bill of complaint, held that the defendants had the right to construct curb and sidewalks on Kanawha Terrace on which the properties of the respective plaintiffs abut and to assess the costs of constructing[138 W.Va. 914] such curb and sidewalks against such properties, found and declared each of such properties to be benefited by the construction of the curb and sidewalks in an amount in excess of the cost of constructing them, except one hundred feet of the abutting property owned by the plaintiff A. L. Hughes which was found and declared not to be benefited to any extent by the proposed improvements, and enjoined the defendants from assessing any part of the cost of constructing the curb or the sidewalks against such one hundred feet of property. The decree also provided that the defendants recover costs from the plaintiffs other than the plaintiff A. L. Hughes and that the costs which would have been charged to him if he had been one of the losing parties, be paid by the defendants. From the foregoing decree this Court granted this appeal upon the petition of the appellants who are all the plaintiffs except the plaintiff A. L. Hughes.

Sometime in the early part of 1951 the council of the City of Saint Albans proposed a resolution to install curb and sidewalks along Kanawha Terrace from Second Street to a point in the dividing line between Lot No. 24 and Lot No. 25 of the A. L. Hughes Addition near the eastern limits of the city, Lots No. 15, 16, 17, 18 and 19 of which addition each fronting fifty feet on Kanawha Terrace are owned by the plaintiff A. L. Hughes, and to construct other specified improvements in that section, and fixed April 16, 1951, as the date to receive protests of the owners of land abutting on that street within that area. At that meeting a number of such property owners entered their protests and the council by a six to three vote of its members refused to authorize the project. The proposed improvements were to be constructed in conjunction with the state road commissioner who apparently had decided to pave and resurface at the expense of the State that section of the street and to widen it at various points for a distance of from five to ten feet. The plans, profiles, and estimates were prepared by the city engineer and approved

Page 465

[138 W.Va. 915] by the council on March 19, 1951. According to these plans, which were also approved by the state road commissioner, curb was to be constructed by the city to a height of seven inches above the surface or the traveled portion of the street and new sidewalks were to be built of three, four, or six feet in width on various abutting properties where no sidewalks existed and existing sidewalks on other abutting properties were to be repaired, renewed or extended.

After the meeting of April 16, 1951, a new movement to authorize the project was initiated by a number of abutting property owners, including some who had previously protested against it, and the council fixed May 28, 1951, as the date of a meeting to receive the protests of abutting landowners. At that meeting protests of the plaintiffs were presented to and considered by the council. Reasons were stated but no evidence was offered in support of the protests of the plaintiffs. The council rejected the contentions of the plaintiffs and by an ordinance adopted by a vote of seven to one, the plaintiff Shelby L. Sturm, a member of the council, casting the single negative vote, the construction of the curb and the sidewalks according to the original plans of the city engineer was authorized.

On June 15, 1951, after the passage of the ordinance, the city advertised for bids, and later apparently entered into a contract with a construction contractor for the performance of the work though the evidence on this point is not clear. The estimated amount of the proposed assessments against the properties of the abutting landowners, including engineer and attorney fees and other costs, according to the bid of the contractor, appears to be $4.27 per foot for curb and sidewalks and $2.60 per foot for curb without sidewalks. The cost of the curb was based on the number of lineal feet and the cost of the sidewalks was based upon the number of square feet of construction. As estimated by the city engineer, the cost appears to be at the rate of $3.62 per [138 W.Va. 916] lineal foot for curb and sidewalks and $2.54 per lineal foot for curb without sidewalks. The proposed assessment against each parcel appears to have been calculated at the rate of the contractor's bid upon the number of feet each parcel abuts upon Kanawha Terrace. The institution of this suit operated to prevent construction of the curb and the sidewalks and, that work not having been undertaken or completed, no assessments have yet been made against the abutting properties of the plaintiffs.

Included in the proposed improvements are two sections of curb and sidewalk along the northern edge of Kanawha Terrace in the areas which are respectively designated as 1 and 2 on sheet one of the plans, profiles and estimates of the city engineer, filed as an exhibit with the bill of complaint. The proposed sidewalk in section 1 is three feet wide and the proposed sidewalk in section 2 is four feet wide. It was stipulated by the attorneys for the respective parties that the area indicated by the figure 1 is a part of Kanawha Terrace, or Seventh Avenue, or Fourth Street, the two latter being city streets, or is a part of each of those three streets; and that the area indicated by the figure 2 is a part of Kanawha Terrace, or Seventh Avenue, or Fifth Street, another city street, or is a part of each of those three streets. It thus appears that both the foregoing sections of proposed curb and sidewalk are located on one or more public streets. The...

To continue reading

Request your trial
6 practice notes
  • Stout v. Massie, No. 10687
    • United States
    • Supreme Court of West Virginia
    • July 1, 1955
    ...of fact which is against the plain preponderance of the evidence or is clearly wrong, will be reversed. Sturm v. City of St. Albans, 138 W.Va. 911, 78 S.E.2d 462; Smith v. Smith, 138 W.Va. 388, 76 S.E.2d 253; McCausland v. Jarrell, 136 W.Va. 569, 68 S.E.2d 729; Adams v. Ferrell, 135 W.Va. 4......
  • State ex rel. Lovejoy v. Skeen, No. 10629
    • United States
    • Supreme Court of West Virginia
    • November 24, 1953
    ...courts should be careful to obey the mandate of applicable statutes in such grave matters as sentencing a person to life imprisonment. [138 W.Va. 911] In absence of a showing otherwise, we assume that the Circuit Court of Logan County followed the statute in pronouncing sentence, but omitte......
  • South Side Lumber Co. v. Stone Const. Co., No. 12577
    • United States
    • Supreme Court of West Virginia
    • February 21, 1967
    ...reversed when it appears that it is contrary to the preponderance of the evidence or is clearly wrong. Sturm v. The City of Saint Albans, 138 W.Va. 911, 78 S.E.2d 462, and the numerous cases cited in the opinion in that case. This principle is applicable to the judgment here under The gener......
  • Walton v. City of Houston, No. 4582
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • November 17, 1966
    ...S.W.2d 557. The rule followed by the Texas courts has been followed by the Supreme Court of West Virginia in Sturm v. City of St. Albans, 138 W.Va. 911, 78 S.E.2d There was testimony to the effect that Monroe Road was not a state highway, but a street in the City of Houston; that the constr......
  • Request a trial to view additional results
6 cases
  • Stout v. Massie, No. 10687
    • United States
    • Supreme Court of West Virginia
    • July 1, 1955
    ...of fact which is against the plain preponderance of the evidence or is clearly wrong, will be reversed. Sturm v. City of St. Albans, 138 W.Va. 911, 78 S.E.2d 462; Smith v. Smith, 138 W.Va. 388, 76 S.E.2d 253; McCausland v. Jarrell, 136 W.Va. 569, 68 S.E.2d 729; Adams v. Ferrell, 135 W.Va. 4......
  • State ex rel. Lovejoy v. Skeen, No. 10629
    • United States
    • Supreme Court of West Virginia
    • November 24, 1953
    ...courts should be careful to obey the mandate of applicable statutes in such grave matters as sentencing a person to life imprisonment. [138 W.Va. 911] In absence of a showing otherwise, we assume that the Circuit Court of Logan County followed the statute in pronouncing sentence, but omitte......
  • South Side Lumber Co. v. Stone Const. Co., No. 12577
    • United States
    • Supreme Court of West Virginia
    • February 21, 1967
    ...reversed when it appears that it is contrary to the preponderance of the evidence or is clearly wrong. Sturm v. The City of Saint Albans, 138 W.Va. 911, 78 S.E.2d 462, and the numerous cases cited in the opinion in that case. This principle is applicable to the judgment here under The gener......
  • Walton v. City of Houston, No. 4582
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • November 17, 1966
    ...S.W.2d 557. The rule followed by the Texas courts has been followed by the Supreme Court of West Virginia in Sturm v. City of St. Albans, 138 W.Va. 911, 78 S.E.2d There was testimony to the effect that Monroe Road was not a state highway, but a street in the City of Houston; that the constr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT