Wachter v. Fowler

• Decision Date: 11 March 1988
• Docket Number: No. 16438,16438
• Citation: 367 S.E.2d 220,179 W.Va. 272
• Court: West Virginia Supreme Court
• Parties: H. Ford WACHTER and W. Thomas Biggert, etc., Plaintiffs Below, Appellants, v. Harry FOWLER and Virginia Fowler and John L. Marple and Virginia L. Marple, Defendants Below, Appellees.

Page 220

367 S.E.2d 220

179 W.Va. 272

H. Ford WACHTER and W. Thomas Biggert, etc., Plaintiffs Below, Appellants, v. Harry FOWLER and Virginia Fowler and John L. Marple and Virginia L. Marple, Defendants Below, Appellees.

No. 16438.

Supreme Court of Appeals of West Virginia.

March 11, 1988.

Syllabus by the Court

"In reviewing the judgment of a lower court, this court does not accord special weight to the lower court's conclusions of law and will reverse the judgment below if it is based on an incorrect conclusion of law." Syl. pt. 1, Burks v. McNeel, 164 W.Va. 654, 264 S.E.2d 651 (1980).

Richard G. Gay, Berkeley Springs, for H. Ford Wachter and W. Thomas Biggert.

Lacy Rice, Joan Casale, Martinsburg, for Fowlers.

David H. Savasten, Berkeley Springs, for Marples.

PER CURIAM:

This case is before the Court upon the appeal of H. Ford Wachter and W. Thomas Biggert, trustees for Tower Acres Joint Venture, from a declaratory judgment order entered by the Circuit Court of Morgan County which found, among other issues, that a certain road in Morgan County is a private road. The appellants contend the circuit court erred as a matter of law since they had established that the road was publicly travelled for more than ten years, and public moneys were regularly authorized and expended for its upkeep; therefore, they were entitled to a conclusive presumption that the road was a public road. We agree and reverse.

I

An undisputed portion of Morgan County Secondary Route 8/2 runs north to south. At its southern point, there is a fork. Swain Road, the disputed road, runs southeast from the fork. Mountain Run Road runs southwest from the fork.

The appellants, Wachter and Biggert, are developers of property on Swain Road. They sought a declaratory judgment that Swain Road is a public road and an injunction, prohibiting their neighbors, appellees, the Fowlers, from obstructing public passage along the road.

W.Va.Code, 17-1-3 [1963] states, in pertinent part:

Any road shall be conclusively presumed to have been established when it has been used by the public for a period of ten years or more, and public moneys or labor have been expended thereon, whether there be any record of its conveyance dedication or appropriation to public use or not.

This Court has stated that the public expenditures must be authorized by public officials on a regular basis. Wilson v. Seminole Coal, Inc., 175 W.Va. 518, 336 S.E.2d 30 (1985); Blamble v. Harsh, 163 W.Va. 733, 260 S.E.2d 273 (1979); State Road Comm. v. Oakes, 150 W.Va. 709, 716, 149 S.E.2d 293, 298 (1966); syl. pt. 3, Baker v. Hamilton, 144 W.Va. 575, 109 S.E.2d 27 (1955).

There is uncontroverted evidence that the statutory requirement of ten years of public travel was met. The road was publicly travelled from, at least, the early 1950's until, at least, 1968. ¹ The second statutory requirement, concerning regularly authorized expenditure of public money for the road was disputed.

The appellants presented the testimony of various Department of Highways (DOH) superintendents and maintenance workers. One maintenance worker testified that his superintendent took him to Swain Road and told him to grade it in 1935. Several other DOH employees testified that from this time until the current dispute arose, they repaired and graded Swain Road on a regular basis.

DOH personnel also testified that Swain Road was listed on the Morgan County map of 1917 and taken into the state highway system in 1933. Swain Road has been listed on all state maps since the 1930's as a continuation of Route 8/2 and, therefore, in their opinion, Swain Road was already within the state road system. DOH assistant maintenance supervisors from 1971-84 testified that work orders for Swain Road, like other state secondary roads, were listed as "Swain Road" not "Route 8/2."

The appellees, the Fowlers, contended that maintenance was sporadic. They presented testimony from a DOH maintenance supervisor from 1955 until 1957, who testified that part of Swain Road was not maintained during his tenure. ²

They also presented evidence that possible error occurred in 1933. In essence, although all DOH maps list Swain Road as a continuation of Route 8/2, the Fowlers contended that when travelling undisputed Route 8/2 to inventory state roads, DOH officials of 1933 travelled southwest to Mountain Run Road (as opposed to southeast to Swain Road), therefore, Mountain Run Road, not Swain Road, was intended as the continuation of Route 8/2. If Mountain Run Road, as opposed to Swain Road, were Route 8/2, the appellees contend that any public money expended on Swain Road could not be validly authorized, as DOH officials intended to authorize the expenditure for Route 8/2, not Swain Road.

The appellees, the Marples, live on Mountain Run Road. They intervened as defendants, specifically due to this last theory espoused by the Fowlers. ³

The trial court found that Swain Road is a private road. ⁴

II

The appellants contend that the appellees did not present sufficient evidence to overcome the conclusive presumption contained in W.Va.Code, 17-1-3, therefore, the trial court erred as a matter of law, in its failure to apply the presumption. We agree.

The appellees did not present sufficient evidence concerning the sporadic and unauthorized expenditure of public funds so as to defeat the presumption.

First, as for the sporadic nature of maintenance, the appellees' evidence of only partial maintenance of Swain Road over a two-year period in 1955-57 must be weighed in light of the appellants' numerous witnesses from DOH (whose combined tenure spanned a 50-year period) who testified that Swain Road was regularly maintained. In order to disallow the operation of the conclusive presumption, the appellees needed to establish that there was only an "occasional expenditure of public money or the occasional performance of public labor." Syl. pt. 3, Baker v. Hamilton, 144 W.Va. 575, 109 S.E.2d 27 (1959). While the appellees established some slight deviation of the norm in maintenance of Swain Road during the two-year period, they did not establish that maintenance was sporadic. Cf. Wilson v. Seminole Coal, Inc., 175 W.Va. 518, 520, 336 S.E.2d 30, 32 (1985) (one incident of maintenance in 42 years is sporadic).

Second, as for whether public money was authorized to repair Swain Road due to the mistaken belief that Swain Road is a continuation of 8/2 and therefore invalid, there are no facts in the record which support this contention. We need not address whether, when approaching the fork in Route 8/2, DOH officials of the 1930's mistakenly veered southwest to Swain Road as opposed to southeast to Mountain Run Road. Even if Mountain Run Road were inadvertently "the road not taken" as a continuation of Route 8/2, DOH officials from 1971 to 1984 testified that they had ordered Swain Road be repaired as "Swain Road" not as Route 8/2. Further, one of the graders testified that as early as 1935, he was taken to Swain Road by a superintendent and...