Taylor v. Baltimore & O. R. Co.
| Decision Date | 19 May 1953 |
| Docket Number | No. CC802,CC802 |
| Citation | 75 S.E.2d 858,138 W.Va. 313 |
| Court | West Virginia Supreme Court |
| Parties | TAYLOR, v. BALTIMORE & O. R. CO. et al. |
Syllabus by the Court.
1. The State Road Commission of West Virginia is a governmental agency of the State, and under Section 35, Article VI of the Constitution of West Virginia, may not be made a party defendant in a proceeding in mandamus, which is instituted to require the maintenance of a fence along a right-of-way used for the purpose of a state highway.
2. Under Code, 14-2-3, as amended by Section 3, Chapter 20, Acts of the Legislature of 1941, Regular Session, the venue for a proceeding in mandamus against the State Road Commission is in Kanawha County, notwithstanding that a private corporation is a joint defendant along with such Commission.
3. A land owner, under the common law, and in the absence of contract or statute, is not required to fence his land, but under Code, 54-1-7, if land be acquired by a railroad company in a proceeding in eminent domain, and the land so acquired shall have been theretofore or thereafter cleared and fenced, the railroad company is required to construct 'and forever maintain' fences on both sides of the land acquired by such proceeding. If a railroad company shall have acquired such land and thereafter conveyed the same and the land is now used for a public highway, the statutory requirement that fences be constructed and forever maintained is inapplicable as to such land.
Lycurgus Hyre, Buckhannon, for petitioner.
John G. Fox, Atty. Gen., Thomas J. Gillooly, Asst. Atty. Gen., and Donald L. Schaffer, Special Asst. Atty. Gen., for defendants.
D. I. Taylor seeks a writ of mandamus to compel the Baltimore and Ohio Railroad Company, a corporation, and the State Road Commission of West Virginia to erect a fence on the division line between his land and another tract of land owned by the State Road Commission, and used for state highway purposes.
The petitioner filed his petition in the Circuit Court of Upshur County, West Virginia. The trial court awarded a rule in mandamus, returnable on the 12th day of December, 1951. On the return day of the rule, the State Road Commission appeared and demurred to the petition, assigning as grounds that the State Road Commission is a governmental agency under the constitution of this state, and is therefore immune in this proceeding. According to a recital in an order entered in this proceeding in the trial court, the Baltimore and Ohio Railroad Company, a corporation, likewise filed its demurrer to relator's petition. Recitals in the order of the trial court disclosed that the court overruled the demurrers of the State Road Commission and the Baltimore and Ohio Railroad Company to relator's petition. The demurrer of the Baltimore and Ohio Railroad Company is not in the record before us.
Upon the overruling of the demurrers to relator's petition, the State Road Commission filed its answer, admitting the acquisition of the land in the manner hereinafter stated, and that the land was conveyed to the State Road Commission by the Baltimore and Ohio Railroad Company as hereinafter shown. In its answer, the State Road Commission alleges that this proceeding could not be brought in Upshur County, since the Circuit Court of Kanawha County is the only Court having jurisdiction in this proceeding; that there is no statute requiring the State Road Commission of West Virginia to fence the right-of-way; and, that the Constitution of West Virginia, Article X, Section 6, does not permit the State Road Commission of West Virginia, it being an agency of the State, to assume the liabilities of the Baltimore and Ohio Railroad Company with respect to erecting a fence on private land.
The petitioner demurred to the answer of the State Road Commission of West Virginia, setting up that Code 14-2-3 is not applicable, since there are two defendants, one of which is not an agency of the State, and that Section 6, Article X of the Constitution is inapplicable.
The trial court does not certify the questions arising upon the sufficiency of relator's petition. But upon sustaining relator's demurrers to the answers of the Baltimore and Ohio, Railroad Company and the State Road Commission, the trial court certified three questions to this Court. It is to be noted, however, that the demurrer of the Baltimore and Ohio Railroad Company is not in the record, but there is a recital in the order of the trial court that the demurrer of the Baltimore and Ohio Railroad Company was considered.
The questions certified are summarized as follows: (a) May the State Road Commission of West Virginia be made a party defendant in the instant proceeding? (b) Does the Circuit Court of Upshur County have jurisdiction of this proceeding? (c) Are the defendants, or either of them, required to erect or maintain a fence in the circumstances disclosed by relator's petition?
Though the questions as certified by the trial court arise upon the demurrers to the answers of the Baltimore and Ohio Railroad Company and the State Road Commission, it is necessary that we advert to the relator's petition in order to state the factual background on which relator relied.
Such petition discloses the following facts: D. I. Taylor is now the owner of the residue of a 40 acre tract of land which adjoins another tract of land formerly owned by the Baltimore and Ohio Railroad Company, and used for a railroad right-of-way. Relator derives his title from the will of George W. Taylor. Such will bears date, January 4, 1917, and was probated in Upshur County, West Virginia on August 8, 1917. George W. Taylor acquired the 40 acre tract of land by a conveyance from C. L. Queen and Cora E. Queen by deed dated April 12, 1896.
C. L. Queen was the owner of the land on February 13, 1891. On, and prior to that date, the 40 acre tract of land then included a 2.62 acre tract. On February 13, 1891, the 2.62 acre tract was acquired by the West Virginia and Pittsburgh Railroad Company, a West Virginia Corporation, by a proceeding in eminent domain, heard and determined in the Circuit Court of Upshur County. The land was acquired for railroad right-of-way purposes, and was an integral part of the 40 acre tract. After its acquisition by the railroad company, the smaller tract was used as a right-of-way for railroad purposes.
The petitioner alleges that the land was cleared, improved and used for farming purposes on February 12, 1891, and prior to that time; that the remaining part of the 40 acre tract has been cleared and used for farm land since the 2.62 acres was acquired, as above stated.
By deed bearing date November 12, 1891, the West Virginia and Pittsburgh Railroad Company conveyed the 2.62 acre tract of land to the Baltimore and Ohio Railroad Company, a corporation, who, along with other persons then having some interest therein, conveyed the same to the State Road Commission of West Virginia by quitclaim deed dated April 25, 1945.
The two railroad companies who formerly owned the 2.62 acre tract constituting their right-of-way, built and maintained a fence along their right-of-way line and joining the land of relator. The line fence so built was allowed to become out of repair so that it does not prevent livestock from going from relator's land to the tract formerly constituting the railroad's right-of-way. Relator alleges that the cannot use his land for farming purposes and that for two years or more, he has suffered great damages by being deprived of his land for the reason that the fence between his land and the former railroad right-of-way is insufficient to prevent livestock from straying from his land to the land now owned by the State Road Commission of West Virginia.
Relator bases his claimed right to a mandamus upon the provisions of a statute hereinafter quoted. He alleges that there is a duty to maintain the fence and that the statute requiring the construction of a fence has the effect of a covenant running with the land; that the Baltimore and Ohio Railroad Company could not divest itself of its duty under such covenant; and, prays in the alternatve that either the Baltimore and Ohio Railroad Company be compelled to build and maintain such fence, or that they cause it to be built and maintained by some other person. Implicit in the prayer is that such fence, if not maintained by the Baltimore and Ohio Railroad Company, should be maintained by the State Road Commission of West Virginia.
It is to be noted from the summary of the questions certified that two questions pertain only to the State Road Commission, and that the third question concerns the State Road Commission, and the Baltimore and Ohio Railroad Company. We therefore deem it proper to answer the three questions certified.
We have hereinbefore stated that the relator does not specifically pray for a writ of mandamus to require the State Road Commission to maintain the fence in question. But the prayer is so framed that if the Baltimore and Ohio Railroad Company should be required to maintain such fence, it would be impossible for that company to do so without invading the land formerly conveyed to the State Road Commission or the lands of the relator. Therefore, we treat the prayer of relator's petition to be in the alternative, that is to say, to require the Baltimore and Ohio Railroad Company or the State Road Commission to maintain the fence.
The Constitution of this State Article VI, Section 35, provides 'The State of West Virginia shall never be made defendant in any court of law or equity, * * *.' That provision is without exception or qualification and is applicable to the State Road Commission of West Virginia as a governmental agency of the State. Stewart v. State Road Commission, 117 W.Va. 352, 185 S.E. 567; Mahone v. State Road Commission, 99 W.Va. 397, 129 S.E. 320. See Watts v. State Road Commission, 117 W.Va....
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