Armstrong v. County Court of Taylor County

McWhorter, President : Tinder section 50, chapter 54r Code, and the sixth clause thereof, the Buchanan and Northern Railroad Co., applied to the county court of Taylor county for permission to use certain portions of the public road on the west side of the Tygarts Valley River between the west end of Fetterman’s Bridge and Short Creek, being two certain pieces of said road described in the proceedings, which permission was granted by order of the court. The pieces of road so to he used are on narrow strips of ground lying between perpendicular bluffs and the Tygarts Valley River. The double occupancy of the same as public road and for the railroad will render them highly inconvenient and dangerous both to the public and the railroad, and as the railroad would have the paramount right of user the public in the ordinary means or mode of travel would be almost entirely excluded therefrom, except at the great risk of life and limb. Many of the citizens of the vicinity appreciating the great danger from •such use of the road and deeming it wise to have the same discontinued as public roads petitioned the county court “because of the extreme danger to the traveling public” to discontinue as public roads the two pieces mentioned. In response to the said petition the county court proceeded under section 30, chapter 43, Code, after giving the notice required by said section, on the 22d of September, to appoint from its own body the three members of the court a committee to view such roads “and report, in writing whether in their opinion any, and if any, what inconvenience would result from discontinuing the same.” Which committee reported to the regular term of the county court, held on the 10th of October, 1903, recommending the discontinuance of the roads from the month of Short Creek to the west end of the Fetterman Bridge across the Tj^garts Valley River, and that a road in lieu thereof he constructed from the Northwest Turnpike across to said Short Creek road at the earliest convenience and further reported that they had viewed the road from near the residence of C. N. Mason, the point [504] designated in the petition down tlio Tygarts Yalley River to the point designated as a station, and had ascertained that said road was a post road and' a route for the carrying of United States mails; recommended its discontinuance, hut to be kept open for the uses and purposes of carrying the mails until another road in lieu thereof should be constructed and reported that in their opinion travel on the two sections of road along the cite of the Buchanan and Northern Railroad there would be extremely hazardous to the traveling public and would menace the lives of those, who saw fit to travel said road and that the interests of the citizens and taxpayers of the districts in which said roads were respectively located, and the general safety of the public would be subserved by the discontinuance of tire same, and that when the proposed roads in lieu of said discontinued sections should be established that it would not inconvenience the traveling public but it would be a great benefit to the same, and the Buchanan and Northern Railroad Go., offered to the said court the sum of $3,000 for tire exclusive use and occupation of said two parts and parcels of said road for the purpose of constructing the line of said railroad; and it further appeared to the court that it was desirable and necessary to alter and change the present location of* said roads in order to place the same on better ground and better and more convenient location for the public and that there would be no inconvenience to-the public resulting from the discontinuance of the said two parts and that the $3,000 so offered by the Buchanan and Northern Railroad Go., would build and construct a county road on better ground and more desirable location for the public and thereupon said parts of said roads were discontinued but the said post road to be kept open for post road purposes until another road should be established by said court in lieu thereof. Adolphus Armstrong tendered his petition praying to be made a party defendant in opposition to the discontinuance of said roads, which was refused to be filed. Under section 30, chapter 43, Code, a county court is given authority to discontinue a county road or portion thereof whenever the interests of the public demand such discontinuance. It cannot discontinue such road for private benefit of a person or corporation unless the uses to which such discontinued road should bo put is a public use, under the sanction of the legislature. Pence v. [505] Bryant, decided at the present term. And the Buchanan and Northern Railroad Co., is authorized by law to occupy the portions of the roads discontinued, having first obtained the consent of the lawful authority having control and jurisdiction thereof, under said section 50, chapter 54, Code. In State v. County Court, 33 W. Va. 589, where it is said “Prohibition is simply the converse of mandamus and governed by the same principles,” point four of the syllabus holds that, "mandamus cannot be permitted to usurp the place of a writ of error nor appeal, nor will it lie when there is any other adequate and complete remedy,” and point 5, "Mandamus will not lie to compel the county court, under the provisions of section 23, chapter 39, Code, to rebuild a county bridge which had been destroyed, when it appears that said court has, under the provisions of chapter 43, Code, decided to build a bridge across the same river 110 yards from the site of the former bridge and thereby in effect deciding to change the location of the former bridge.” At page 595, Judge Snyder., in delivering the opinion of the Court, says: “It is a well established rule both in mandamus and prohibition, that neither will lie where another specific and adequate remedy exists, nor to correct the errors of inferior courts in matters properly within their jurisdiction. It is a fundamental principle, that neither of these writs can be allowed to usurp the functions of a writ of error or certw-ari, and can never be employed as a process for the correction of errors of inferior tribunals,” and cites High on Ex. L. Rem. sections 156, 243; State v. McAuliffe, 48 Mo. 112; McConiha v. Guthrie, 21 W. Va. 134. Buskirk v. Judge of the Circuit Court, 7 W. Va. 91, (syl. pt. 3). “Prohibition can only be interposed in a clear case of excess of jurisdiction on the part of some inferior judicial tribunal. Where the matter is clearly within the jurisdiction of the inferior court a more error in the proceedings may be ground of appeal or review, but not of prohibition.” In Haldeman v. Davis, 28 W. Va. 324, (syllabus pt. 1), it is held: “Prohibition does not lie to restrain an inferior tribunal after its judgment has been given and fully executed.” The county court, in case at bar had completed the discontinuance of the said parcels of road. The only inconvenience that will result to the public is that it will cause those using the ordinary means of traveling on these discontinued [506] roads to travel a longer distance to their places of destination, while they will avoid the danger of traveling along or immediately upon the railroad. These things the county court had the right to take into consideration in determining whether the portions of the public road should be discontinued or not. The discontinuance is a question of sound discretion with tire county court, and cannot be controlled by prohibition. The fact that the railroad company is willing to pay the county court $3,000 to enable it to provide a more convenient way for the public, causing less damages, does not affect tire court’s discretion as to such discontinuance, but only emphasizes the fact that the railroad company is anxious to get rid of the two extremely dangerous places along the line of its road, where probably it would be, otherwise necessary to keep watchmen continually to protect itself and the traveling public from otherwise unavoidable or negligent accidents greatly endangering life and entailing great loss and expense. The apparently exclusive grant of the use and occupancy of said road can amount to nothing more than the discontinuance of the road for such use, with full notice to the public of complete abandonment, it matters not what language is used, the county court can grant to the company no right in the roads for it possesses none. All it docs or can do is to relieve the land occupied from use as public roads. This is what it is clothed with the power to do when the public necessities require its action. In so doing it does not act in excess of its jurisdiction and its action cannot be controlled by prohibition. Writ Denied.