136 S.E. 195 | W. Va. | 1926
By separate rules in prohibition, petitioners in the first entitled case seek to prohibit respondents from prosecuting against them; first, a suit in trespass for unlawfully and wrongfully breaking and entering the messuage and close of respondents Robert S. Radcliff and Gail Radcliff, and tearing down and destroying the retaining wall in front of their property, and tearing up the soil and shrubbery within said close, situated on the public road between Fairmont and Morgantown, in Monongalia County; and in the second case petitioner seeks to prohibit respondents from prosecuting against Hon. I. Grant Lazzelle, Judge, etc. and State Road injunction suit, restraining them and each of them from entering upon or taking and appropriating a strip of land belonging to plaintiffs, lying alongside the public road, for the purpose of widening said road, or for any purpose, without the consent of the owners, or acquiring the right to do so, and for general relief. *665
Respondents met the petition in each case with motions to dismiss, demurrers and answers, the answers denying all the material allegations of the petitions on which petitioners aver right or title to that portion of respondents' land abutting on the public road upon which the alleged trespass was committed, and denying any right or title to pull down or destroy said retaining wall and shrubbery as alleged, situated upon their property.
The basis of petitioners' claim or right to prohibit is substantially the same in both cases:
First, absolute and indefeasible title in the State to The strip of land on which the retaining wall was located, and lawful right to enter and tear down the wall;
Second, that the trespass suit against Downs and others, employees of the State Road Commission, is in legal effect a suit against the State, and is inhibited by section 35 of article vi of the Constitution;
Third, that both suits being against public officers, and agents of the State Road Commission, a distinct public agency, and involving the right and title of the State to the land in dispute, can not be maintained against them elsewhere than in Kanawha County, where the seat of the State government is located, as provided by section 4 of chapter 37 of the Code.
The attorney general, for petitioners, concedes that the jurisdiction of this court to control by prohibition the proceedings of the circuit court depends on the single question whether that court has jurisdiction, and if that jurisdiction depends on an issue of fact presented by the pleadings, the lower court has jurisdiction to determine the question and can not be controlled therein by prohibition or any other collateral proceeding. State ex rel. Keeney v. Bland, Judge,
The petitioners Downs and others, in the first case, base their claim to immunity from damages for the alleged trespass upon the theory that by entry upon respondents' land by the county court when beginning the construction of the road in 1917, and subsequently completing it in front of respondents' house in 1921, and which subsequently in August *666 1922, when it was taken over for maintenance and further construction and reconstruction and repair by the State Road Commission, the State thereby acquired title to the whole of the right of way, alleged to be twenty feet on each side of the center line of the concrete slab or hard surface part of the road and including the whole of the strip on which said retaining wall was located, and as to which petitioners claim there remains no material disputed fact.
To sustain this position they rely: First, upon the alleged dedication of a road or street by the partitioners of what is known as the Crowl land, made in August 1919, lot number 17 of that partition being now owned by respondents, acquired by them by deed of January 3, 1921, through one of said petitioners, and on a plat of which land the road now in question was laid down through said tract as a road forty feet in width; Second, the alleged acceptance of such dedication by the county court by an order of June 26, 1919, whereby it was resolved to improve 2.1 miles of the Morgantown-Fairmont road, inclusive of the road through said Crowl tract, described as a main county road, by grading to a width of not less than 26 feet, and draining the property and laying thereon a surface of not less than 16 feet in width, 8 feet on each side of the center line thereof; Third, the action or resolution of April 29, 1922, of the State Road Commission, in taking over said road after the completion thereof by the county court as described, for the purpose of maintenance and further construction and reconstruction as to the commission might seem necessary and proper; Fourth, upon the provisions of section 19 of chapter 43 of the Code, section 19, chapter
But the fact of such dedication and the alleged acceptance thereof in the way indicated is controverted, and whether the road as constructed occupied the road as laid down on the plat of said partition, and whether the retaining wall destroyed by petitioners was constructed upon any part of the road so built, or was within the survey or location of said road by the county court, is vigorously controverted by respondents in pleading and proof. And there is little, if any doubt that in the building of said road the county authorities invaded the lands of respondents, not only outside the boundary of the old road, but also the road as platted on said partition map; and there is little doubt but that a part of said wall was wholly outside any of the right of way claimed to have been taken by said county court, consisting of a strip from about the center of the front steps eastward to the line of lot number 16 on said plat, from 15 to 20 feet wide, and on which a part of said wall stood before it was torn down by petitioners. The effect of the resolution of the county court proposing to build said county road, upon said partition and the record thereof, as an acceptance of a supposed dedication thereof, and the fact of said dedication are all controverted facts, depending on the record and the oral evidence taken herein.
As to the provisions of section 19 of chapter
Prohibition will not lie against an inferior court or the judge thereof to deprive it or him of the right to pass upon the extrinsic facts determinative of jurisdiction.Steamship Co. v. Hudson, Judge,
To warrant petitioners in invading the curtilage and close of the plaintiffs and tearing down their wall, they must have a clear legal right to enter for that purpose. Otherwise they will be without immunity from damages for their wrong; and the fact that they are officers or agents of the State furnishes no defense, unless they be clothed with the full panoply of the law. Their color of office will not protect their unlawful invasion of another's rights. They will act at their peril.Coal Coke Ry. Co. v. Conley et al.,
The case presented by the pleadings in the action for damages does not involve any contractual or property rights of the State, if the facts be as pleaded; and if the State's agents traveled outside their lawful rights and committed an unlawful act against respondents, they did not represent the State and can not claim the protection of the State against a suit for their wrongdoing. For such a wrong the State is not liable, and such a wrong can not be imputed to the State. Only the individuals responsible therefor are liable, and they in their collective or individual capacities. The inhibition against actions against the State and officers and agents thereof applies only where the officers represent the State in *669
respect of contract or property rights. Section 35, article vi of the Constitution. Barber v. Spencer State Hospital,
Enough has been said to warrant our conclusion to deny the writ in the Downs case. But we must not be regarded as intending to express any opinion on the merits of the case as they may be developed on the trial in the court below. Our discussion of the legal propositions applicable to the case, has been solely for the purpose of sustaining the jurisdiction of the circuit court in the premises.
But can jurisdiction to hear the cause in the circuit court be defeated upon the theory that the State Road Commission, a State agency, represents the State in the alleged acts of trespass enjoined, rendering it immune as the State would be, from injunctive process? Of course, as we have decided a number of times, in the cases cited and relied on by the attorney general, the State can not be made defendant in any suit at law or in equity, either in its own name or in the name of one of its agents, when such suit involves a contract or property right. But may the State Road Commission, which the statute creating it renders competent to sue and be sued, invade the land and property of another without notice or lawful process and commit a trespass, and then go unpunished? The constitution which protects the State is also over all its citizens, and gives to them protection against the unlawful invasion of their rights, from the least to the greatest. And what respondents pray for in their bill is that kind of relief, if the allegations thereof be true. If the petitioner and the county court cooperating with it, are proposing to take respondents' land for the purposes alleged, and without notice or process, their acts are absolutely void and of no effect so far as these rights are concerned. Ice v. County Court,
The fact that the petitioners may claim that the land in dispute is the property of the State, the very matter in controversy, presents no obstacle against the jurisdiction of the court to restrain the actions and conduct of the State agency when they amount to a trespass. Coal Coke Ry. Co. v.Conley et al., supra. In United States v. Lee, supra, involving the right and title of the United States to the National Cemetery at Arlington, the Attorney General intervened, claiming the immunity of the government from suit; but his petition was denied. That was a suit in ejectment by Lee against Kaufman and Strong in possession for the government. It was held that the possession of the government agents imposed no bar to the suit to try right and title to the land. This principle was recognized and applied in the case of Tindal v.Wesley,
But the objection remains that such public officer or corporation of the State can only be sued in the county where the seat of government is located. We think there is no merit in this proposition as applied to the case presented by the bill here involved. The act sought to be prohibited is to take place in Monongalia County, and section 4 of chapter 133 of the Code says that suit shall be in the county where the act is to be done or is apprehended. The statute invoked by the attorney general should be construed as applying to those cases involving contractual or property rights and the enforcement of those rights against the State. The two statutes, if possible, must be so construed as to give force and effect to both without doing violence to either. In the comparatively recent case of State ex rel. Chafin v. Hudson, Judge, et al.,
As in the first case, we express no opinion on the merits of the controversy as they may be presented by the subsequent proceedings in the cause. Our purpose has been simply to justify by law our conclusion to deny the writ in this case also.
The writs in both cases will, for the reasons given, be denied, but without costs against the parties.
*673Writ denied.