10 W. Va. 784 | W. Va. | 1877
delivered the opini on of the Court:
On the 2d day of December, 1873, the county court oí Lewis county, on motion of Hudson Jeffries, appointed three persons as viewers, “ to view and mark a way for an alteration in the road leading up "West Fork river,” between certain described points. Only two of the. .viewers acted; they reported in favor of the alteration, and stated in their report that the new road to be established ran only through the lands of Joseph Hall. During the same term of the court, on the 6th day of December, 1873, said Hall, waiving a summons, and consenting to such alteration, the court ordered that said alteration be established as a public road, and further ordered that so much of said road leading up "West Fork river as heretofore existing, and lying between the terminal points of said alteration, be discontinued. Seven months thereafter, some fifty-one citizens of the county, including one Joseph Mathews, a stockholder in the Weston and Gawley Bridge Turnpike Company, filed a petition to revoke the order which discontinued said road, and on their motion to revoke said order, they proved that the road discontinued was a part of the Weston and Gawley turnpike, which had been made by said company and operated as a turnpike till the breaking out of' the war, but that since then said company had taken no control over the road. But that in 1866, Lewis county had taken charge of so much of the road as laid in that county, the state owning three-fifths of the stock of said company, and all its stock in turnpike companies
“ It appears from the record of the proceedings in the matter complained of, that the alteration of the road in the proceeding mentioned, and the discontinuance of so much of the old road as was so altered, was made final by an order to be found in the proceedings of the court, entered on the 6th of December, 1873, and that said final order remained unreversed and in full force; that on the 6th of June, 1874, the said Conrad and others petitioned the said court to revoke so much of the said order as operated a discontinuance of the part of the old road so altered. If the'proceedings of the county court, which were concluded by the order of December, 1873, were irregular, unauthorized and erroneous, the said final order could only be reversed on the petition of some party to the procoedings. The petitioners were not parties to said proceedings. If they were not parties, they should not be entertained to reverse the said final order of December, 1873. Certainly citizens, not parties to such proceedings, should not be entertained in an appellate court because they may think themselves interested. Wingfield v. Crenshaw, 3 Hen. and Munf., p. 245, 255,*787 257: 2 Tuck., side page 355, &c., after the final order in December, 1873, the court is of opinion that the appellants would not by the rejection of their petition presented in June, 1874, and rejected, make themselves parties so as to be entertained here, and I see no error of the county court in refusing to entertain their petition. If the action of the county court in establishing the alteration and discontinuance referred to was unlawful and unauthorized, the petitioners were not without the means of redress. The court is of opinion the writ of superse-deas should be quashed as improvidently granted, and these proceedings dismissed.”
And upon the petition of said petitioners a supersede.as was awarded to this judgment of the circuit court of Lewis county by this Court.
The law then provided and still provides, two modes of proceeding in reference to roads. If a road is to be discontinued, the parties file their petition therefor, but before it can be acted upon, notice of such petition must, three weeks at least, before it is acted upon, be posted at the front door of the court house and at three public places in every district in which any part of the road may be. Code of W. Va., ch. 43, §30: acts of 1872-73, ch. 194, §30. If a road is to be established, the parties file their petition, and take certain steps before said petition is finally acted upon. The proprietors and tenants of ihe property which would have to betaken or injured, if the road were established, must be summoned, to show cause against it, but no public notice is given, as is required when a road is to be discontinued. Code of W. Va., ch. 43, §35 and 36; acts of 1872-73, §35 and 36. If a road is to be altered, a petition therefor, is filed, but as such alteration necessarily implies the establishment of one road and the discontinuance of another, it is obvious that the proprietors and tenants of the property to be taken or injured by the establishment of the new road must be summoned, and likewise the three weeks’ public notice aforesaid must be given, for without this no road
So in the case before us, the order of the county court made on the 6th day of December, 1873, so far as it discontinued a portion of a road Avithout any notice to the public, is to be regarded as “ a mere police order Avhich might be set aside, upon motion at a subsequent term.” And as any citizen, had the proper public notice been given, could have appeared in answer to such public notice, and resisted the discontinuance of the road, it follows that no such notice having been given, any citizen of the county had a right to appear at a subsequent term and move the court to set aside so much of its- order as discontinued a portion of a public road. The county court, therefore, properly permitted the petitioners, citizens of Lewis county, to appear at the May term, 1874, and make themselves parties to this proceeding, and move to set aside this order discontinuing this road
The judgment of the circuit court must be reversed and annulled, and this court, proceeding to render such jndgment as it ought to have done, doth reverse and annul the order of the county court made in this cause, on the 6th day of December, 1873, and on the 6th day of June, 1874, and doth dismiss the proceedings and motion of Hudson Jeffries for the alteration of said road; and doth order that the plaintiffs in error recover of the defendant in error their costs incurred in this Court, in the circuit court of Lewis, and in the county court of Lewis.
Judgment Reversed.