Miller v. Hoskinson

429 S.E.2d 76, 189 W. Va. 189, 1993 W. Va. LEXIS 32
CourtWest Virginia Supreme Court
DecidedMarch 26, 1993
DocketNo. 21140
StatusPublished
Cited by3 cases

This text of 429 S.E.2d 76 (Miller v. Hoskinson) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Hoskinson, 429 S.E.2d 76, 189 W. Va. 189, 1993 W. Va. LEXIS 32 (W. Va. 1993).

Opinion

PER CURIAM:

This is an appeal by Geoffrey S. Miller and Paula A. Miller from a decision of the Circuit Court of Doddridge County which declared a portion of a road on the Appellants’ property to be a public road. The Appellants contend that the road in question is not a public road, and we agree and reverse the decision of the Circuit Court of Doddridge County.

[191]*191I.

The road in dispute is known as the “Stagecoach Road” or the “Old Tyler Ridge Road.” In 1892, the Circuit Court of Doddridge County declared the road to be a public road. In 1933, however, the West Virginia Legislature repealed the county system of road maintenance and adopted a state system through West Virginia Code §§ 17-10-1 to -25 (1991). Effective July 1, 1933, counties relinquished authority over county-district roads to the State Road Commission.

The Appellants maintain that the road in question was never accepted into the state highway system. They emphasize that since 1933, no public funds have been expended for the maintenance or upkeep of the Stagecoach Road, and no state-owned equipment has been used to repair or maintain the road.

On September 8, 1980, the Appellants purchased approximately 100 acres of land in Doddridge County. The Stagecoach Road crosses the Appellants’ property and was referenced in their deed.1 The Stagecoach Road is situated in a meadow owned by the Appellants. Only four-wheel-drive vehicles, all-terrain vehicles, or horses traverse the road. Since 1933, it has been used primarily for recreational purposes such as riding all-terrain vehicles, riding horses, or gaining access to hunting areas. There has also been some suggestion that the road would be useful for firefighters to gain access to remote areas if the need arises.

Shortly after the Appellants moved to the property in 1982, Appellee Delores Weekley requested permission to ride her horses across the Appellants’ property. Although the Appellants initially granted that permission, they later informed her that she could not use their property for that purpose. Mrs. Weekley is not an adjoining landowner and has no claim to the road through an easement by necessity. Appellee David Hoskinson is likewise not an adjoining landowner. He had sporadically used the road for several years to haul hay or to operate recreational four-wheel-drive vehicles and all-terrain vehicles. When the Appellees were informed by the Department of Highways that the Stagecoach Road was not part of the state highway system, criminal warrants were filed by Delores Weekley in the Magistrate Court of Doddridge County against Appellant Geoffrey Miller for denying the use of the Stagecoach Road to the public. Upon dismissal of the criminal warrants, the Ap-pellees allegedly destroyed fences on the Appellants’ property and hauled rocks onto the Stagecoach Road. In 1988, the Appellants Qsought a temporary injunction and instituted this declaratory judgment proceeding. Subsequent to a trial by the Circuit Court of Doddridge County, the lower court ruled that the Stagecoach Road was a public road. The Appellants have appealed to this Court asserting that the facts do not support the conclusion that the Stagecoach Road is a public road.

II.

The Appellants contend that the Stagecoach Road was abandoned as a public road in 1933 when the state failed to incorporate that roadway into the state road system. The Appellants further contend that such abandonment is evidenced by the state’s lack of expenditure of public funds to maintain the road and the absence of any reference to the road on state maps or tax maps.2 Although sporadic use by the public is conceded, the Appellants contend that the road cannot be presumed public in the absence of acceptance by the public in the form of expenditure of funds or some other overt act of acceptance into the state road system. As we explained in State Road Commission v. Oakes, 150 W.Va. 709, 149 S.E.2d 293 (1966), mere [192]*192public use of a road will not make that road a public road unless that use is accompanied by some recognition by a public authority or maintenance through public funds. Id. at 716, 149 S.E.2d at 298. Certainly, the absence of public recognition of a road for almost sixty years lends support to the contention that the road can no longer be considered public. We have even emphasized that isolated and sporadic instances of public maintenance do not establish a road as public. Wilson v. Seminole Coal, Inc., 175 W.Va. 518, 520, 336 S.E.2d 30, 32 (1985).

In Wilson, we identified the three means by which a roadway may become a public road. These methods included condemnation, dedication, and public use coupled with official recognition that the road is public. 175 W.Va. at 519, 336 S.E.2d at 31. In Wilson, as in the present case, no contention is made that the road in issue became a public road through condemnation or dedication. We held in Wilson that although the road had never been chained or posted as a private road and had always been open to public use, the road was not a public road since there was no evidence of any public maintenance for forty-two years. While the case at bar differs from Wilson to the extent that we are presented herein with a road which was previously specifically identified as a public road, we do not believe that such a distinction renders the reasoning of Wilson inapposite. We explained the following in the syllabus of Wilson:

‘In order that a road, by virtue of Section 3, Article 1, Chapter 17, Code, 1931, shall be conclusively presumed to be established as a public road, it must have been used by the public for a period of ten years or more and public moneys or labor, duly authorized by a public agency or official empowered to maintain, repair or accept such road, must be expended on it; and the occasional expenditure of public money or the occasional performance of public labor on such road ..., even though such road has been used by the public for ten years or more, does not satisfy the requirements of the statute or render effective the statutory presumption of its establishment as a public road.’ Syllabus Point 3, in part, Baker v. Hamilton, 144 W.Va. 575, 109 S.E.2d 27 (1959).”

In Cramer v. West Virginia Dep’t of Highways, 180 W.Va. 97, 375 S.E.2d 568 (1988), we held that sporadic grading and snow plowing, through the use of public funds, did not constitute sufficient application of public monies and labor to render the road public. Id. at 100, 375 S.E.2d at 571, see also, State ex rel. Riddle v. Dep’t of Highways, 154 W.Va. 722, 725,179 S.E.2d 10, 13 (1971) (holding that “[m]ere use of a road will not make a road a public road even though such use is with the knowledge and consent of the landowner unless the use is accompanied by ... recognition by public authority or by its maintainance [sic]_”).

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429 S.E.2d 76, 189 W. Va. 189, 1993 W. Va. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-hoskinson-wva-1993.