The City of Charleston v. Robert Romaine

STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS May 16, 2023
released at 3:00 p.m.
THE CITY OF CHARLESTON, EDYTHE NASH GAISER, CLERK
Defendant Below, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Petitioner,
vs.) No. 21-0776 (Kanawha County 18-C-1495)
ROBERT ROMAINE,
Plaintiff Below,
Respondent.
MEMORANDUM DECISION
Petitioner, The City of Charleston, by counsel, Michael D. Dunham and
Karen T. McElhinny, appeals the Circuit Court of Kanawha County’s grant of summary
judgment against it. Respondent, Robert Romaine, filed a response, by counsel, Scott H.
Kaminski. Additionally, the amicus curiae West Virginia Municipal League, by counsel,
Michael W. Taylor and Samuel M. Bloom, filed a brief. Petitioner filed a reply and oral
argument was held before this Court on March 22, 2023.
This Court has considered the parties’ briefs, the amicus curiae brief, the
record on appeal, and the oral argument of the parties. From that review, the Court finds
that the circuit court erred in granting summary judgment in favor of Respondent.
Accordingly, this case satisfies the “limited circumstances” requirement of Rule 21(d) of
the West Virginia Rules of Appellate Procedure and is appropriate for reversal by
memorandum decision.
I. FACTUAL AND PROCEDURAL BACKGROUND
Respondent brought this declaratory judgment action seeking an order
declaring that Petitioner is responsible to “make needed repairs” to the portion of Shannon
Place located outside the corporate limit of the City of Charleston, West Virginia. After
engaging in discovery, the parties filed cross-motions for summary judgment. In granting
summary judgment in favor of Respondent, the circuit court found, “[i]t is not disputed that
the portion of Shannon Place in front of Plaintiff’s home is outside the city limits, leaving
at least part of the area in need of repair outside of city limits.”
Despite finding the relevant portions of Shannon Place to be outside the
Charleston city limits, the circuit court found that pursuant to West Virginia Code § 17-1-
3 (2013), Petitioner, through its actions, assumed responsibility for Shannon Place. That
Code section provides, in pertinent part:
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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.
Id.
Applying this statute, the circuit court found that Shannon Place was a public
street, having “been open to the public and used by various delivery and service providers.”
The circuit court further found Petitioner had expended money and labor on Shannon Place
through Petitioner’s “collect[ion of] fees and taxes, and in return has provided services to
the residents of Shannon Place.” Specifically, the circuit court found these services to be
“refuse collection, recycling, and road maintenance from” Petitioner. The circuit court
further found that Petitioner had sporadically performed garbage collection, street
sweeping, snow removal and ice control, tree limb removal services, sewer services, and
had driven a recycling truck on Shannon Place.
However, Petitioner demonstrated that it did not officially authorize any
maintenance to Shannon Place because the street was located outside Petitioner’s corporate
boundary. This was shown by a memorandum from David Alvis, Planning Director, to
Mark Holstein, Public Works Director, dated January 8, 1997, in which Alvis clarified to
Holstein the status of Shannon Place: “The last 350’ of street down to the turning area is
outside the City, even though all the houses on the left side of the street are in the City.”
This evidence is buttressed by affidavits of Petitioner’s employees attached to its Motion
for Summary Judgment, all of which consistently state that the portion of Shannon Place
at issue in this appeal is located outside the City limits. These affidavits were submitted
by Brent Webster, Director of Public Works, William “Bill” Tate, Deputy Director of the
Street Department, and Chris Knox, City Engineer. Webster and Tate both emphasize that
no maintenance on Shannon Place was authorized outside the City limits. Knox stated
Petitioner had no right of way for the street outside the City limits.
After the circuit court granted Respondent’s motion, Petitioner appealed to
this Court, arguing the circuit court erred in three respects. First, the circuit court erred in
finding Petitioner responsible for maintaining a street located outside its jurisdictional
limits. Second, the circuit court erred in determining that the street at issue is a public
street. Third, the circuit court erred in not joining indispensable parties.
II. STANDARD OF REVIEW
The entry of both a declaratory judgment and summary judgment are
reviewed de novo. See Syl. Pts. 1 & 3, Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459(1995).
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“‘“Summary judgment is appropriate where the record
taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, such as where the nonmoving party
has failed to make a sufficient showing on an essential element
of the case that it has the burden to prove.” Syl. pt. 4, Painter
v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).’ Syl. pt. 3,
Cannelton Industries, Inc. v. Aetna Casualty & Surety Co. of
America, 194 W.Va. 186, 460 S.E.2d 1 (1994).”
Syl. pt. 3, Davis v. Foley, 193 W.Va. 595, 457 S.E.2d 532 (1995). Mindful of our standard
of review, we now discuss the issues raised in this appeal.
III. ANALYSIS
We believe the issue of whether the provisions of West Virginia Code § 17-
1-3 require a city to assume responsibility for a street located outside its corporate limit is
dispositive of this appeal. This Court has been called to examine the applicability of West
Virginia Code § 17-1-3 on numerous occasions. We have held that “[t]he mere use by the
public of a private alley in common with the owners of the alley does not show a dedication
thereof to public use, or vest any right in the public to the way.” Syl. Pt. 2, MacCorkle v.
City of Charleston, 105 W. Va. 395, 142 S.E. 841 (1928). In Wilson v. Seminole Coal,
Inc., 175 W. Va. 518, 336 S.E.2d 30 (1985), we thoroughly discussed West Virginia Code
§ 17-1-3 and how public roads come into existence:
West Virginia recognizes three ways in which a
roadway may become a public road: (1) condemnation, (2)
dedication, and (3) public use coupled with official recognition
that the road is public, as by maintenance. Reger v. Weist, 172
W.Va. 738, 310 S.E.2d 499 (1983); State ex rel. Riddle v.
Department of Highways, 154 W.Va. 722, 179 S.E.2d 10(1971). No one contends that the road in controversy became
a public road by condemnation or dedication. The appellee’s
theory of the case has been that the road became a public road
by operation of W.Va. Code, 17-1-3, which provides in part
that “[a]ny 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.”
It is clear that public use alone is not enough to establish
the public nature of a road under W.Va. Code, 17-1-3. In
addition, “public moneys or labor duly authorized by a public
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agency or official empowered to maintain, repair or accept
such road must be expended on it.” State Road Comm’n v.
Oakes, 150 W.Va. 709, 716, 149 S.E.2d 293, 298 (1966). See
also State ex rel. Riddle v. Department of Highways, supra.175 W. Va. at 519, 336 S.E.2d at 31 (emphasis added). Occasional performance of
unauthorized maintenance work does not satisfy the provisions of West Virginia Code §
17-1-3:
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, which is not so authorized, 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.
Syl. Pt. 3, Baker v. Hamilton, 144 W. Va. 575, 109 S.E.2d 27 (1959).
In previous cases, we have held that isolated and
sporadic instances of public maintenance will not suffice to
meet the requirements of W. Va. Code [§] 17-1-3. See, e.g.,
Teter v. Teter, 163 W.Va. 770, 260 S.E.2d 270 (1979) (per
curiam); Blamble v. Harsh, 163 W.Va. 733, 260 S.E.2d 273(1979) (per curiam); State ex rel. Riddle v. Department of
Highways, supra; Baker v. Hamilton, 144 W.Va. 575, 109
S.E.2d 27 (1959). In many of these cases, we have emphasized
the lack of authorization by a public official responsible for
making maintenance decisions as much as, if not more than,
the quantum of work involved, but even authorized work can
fail to satisfy the requirements of W. Va. Code [§] 17-1-3,
where it is very infrequent. See Monk v. Gillenwater, 141
W.Va. 27, 87 S.E.2d 537 (1955) (single scraping of road);
MacCorkle v. City of Charleston, 105 W.Va. 395, 142 S.E. 841(1928) (some grading, draining, and filling of mudholes).
Wilson, 175 W. Va. at 520, 336 S.E.2d at 32 (footnote omitted noting other states “have
held that occasional maintenance is not enough to meet the requirements of their statutes.”).
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There was no dedication of public use of Shannon Place by Petitioner. Additionally,
Petitioner’s expenditure of funds on Shannon Place was both sporadic and unauthorized.
Further, the street in question is located outside the corporate boundary of
the City of Charleston, where the city not only lacks an obligation to maintain it but, indeed,
except in certain circumstances, lacks legal authority to act:
A municipal corporation has only the powers granted to
it by the legislature, and any such power it possesses must be
expressly granted or necessarily or fairly implied or essential
and indispensable. If any reasonable doubt exists as to whether
a municipal corporation has a power, the power must be
denied.
Syl. Pt. 2, State ex rel. City of Charleston v. Hutchinson, 154 W. Va. 585, 176 S.E.2d 691(1970). As a prerequisite to incorporation, a city must distinctly define its corporate limits.
See W. Va. Code §8-2-1(a)(5) (2001). The City of Charleston is so distinctly defined. 1
Because a city’s boundaries are distinctly defined, a city can only act outside
its corporate limit when the Legislature has expressly granted that authority. See Darnall
v. Bd. of Park Comm’rs of City of Huntington, 124 W. Va. 787, 794, 22 S.E.2d 542, 546
(1942) (“Plainly, as we think, the legislature intended to limit the governmental power, if
we may use that term, of the Board of Park Commissioners to the City of Huntington, with
the additional and incidental power to acquire real estate lying outside of the city for
purposes connected with the powers expressly conferred.”); Bernard v. City of Bluefield,
117 W. Va. 556, 559, 186 S.E. 298, 299 (1936) (The City of Bluefield was authorized to
act outside its corporate limit: “The act further provides that for all of the purposes thereof,
the municipal corporations shall have jurisdiction for ten miles outside their corporate
limit.”); Benwood-McMechen Water Co. v. City of Wheeling, 121 W. Va. 373, 374, 4
S.E.2d 300, 302 (1939) (The City of Wheeling, pursuant to statutory authority, “furnished
water to persons and corporations located outside its limits, and for this service made an
additional charge of twenty-five per cent over that imposed upon customers within the
city.”).
1
The City of Charleston was originally chartered as “Charles Town” in 1794.
See W. Va. Blue Book (Clark S. Barnes, Senate Clerk), 2015-2016, p. 965. Its name was
changed to “Charleston” in 1818. See 1817-1818 Va. Acts 160. The “corporate limits of
the city” were first described by our Legislature in 1875. See 1875 W. Va. Acts 47.
The Code of the City of Charleston, West Virginia contains the City’s
Charter. This document further describes the corporate limits but has been rendered
obsolete by subsequent annexations. See Charleston, W. Va., Mun. Code, Charter § 2
(2003).
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Absent specific statutory authority, we have held that a city’s power to act is
constrained by its corporate limit:
The exercise of municipal powers, by proper
construction, is confined to the territorial limits of the
municipality, and are (1) such as are granted by express words;
(2) those fairly implied or incident to those expressly granted;
and (3) those essential to the declared objects and purposes of
the corporation, not simply convenient, but indispensable.
Syl. Pt. 1, Min. Cnty. Ct. v. Town of Piedmont, 72 W. Va. 296, 78 S.E. 63 (1913). We
discussed this issue in Hyre v. Brown, 102 W. Va. 505, 135 S.E. 656 (1926). In Hyre, the
City of Ravenswood, West Virginia, had an electric power plant and constructed electric
lines outside its corporate boundary which fell to the ground and electrocuted a person who
came in contact with them. Id., 102 W. Va. at 506, 135 S.E. at 657. Suit was brought by
the decedent’s intestate heirs against the City. See id. This Court reasoned that “[i]t is very
well established that a municipality without statutory authority, express or implied, cannot
exercise powers beyond its corporate limits.” Id., 102 W. Va. at 510. 135 S.E. at 658.
From that conclusion, we crafted two syllabus points:
A municipal corporation possesses and can exercise
only the following powers: (1) Those granted in express words;
(2) those necessarily or fairly implied in or incident to the
powers expressly granted; (3) those essential to the
accomplishment of the declared objects and purposes of the
corporation-not simply convenient, but indispensable. Dillon
on Mun. Corp. (5th Ed.) § 237.
Where a fair, substantial, reasonable doubt exists as to
whether such corporation is possessed of a power, the power
must be denied.
Syl. Pts. 2 & 3, Hyre.
It is true that the Legislature has granted limited authority for a city to act
outside its corporate boundary when necessary to exercise powers and authority it
possesses within its city limits. See W. Va. Code § 8-12-19 (1969). 2 However, it is clear
2
W. Va. Code § 8-12-19 provides:
(continued . . .)
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from the record in this matter that Petitioner did not authorize the exercise of such power
and authority.
The circuit court erred because Petitioner never dedicated Shannon Place to
public use. Petitioner’s sporadic and periodic driving of vehicles for refuse collection,
recycling, road maintenance, street sweeping, snow removal, and tree limb removal,
coupled with the provision of sewer services does not satisfy the requirements of West
Virginia Code § 17-1-3. Indeed, of the circuit court’s findings of Petitioner’s expenditure
of public funds, only road maintenance (of which both street sweeping and snow removal
are a part) constituted an expenditure on the actual maintenance of the street. In any event,
as reflected by the January 8, 1997 memorandum noted above, these activities were not
authorized by Petitioner. Finally, any activities performed on Shannon Place outside the
corporate boundary of the City were unnecessary to the exercise of Petitioner’s authority
within the city limits. Accordingly, the circuit court erroneously concluded that West
Virginia Code § 17-1-3 required Petitioner to maintain the relevant portion of Shannon
Place and, thus, its grant of summary judgment in favor of Respondent was in error.
IV. CONCLUSION
For the foregoing reasons, we find the circuit court erred and we reverse and
remand this matter to the circuit court for further action consistent with this decision.
Wherever the powers and authority granted in this
chapter cannot be reasonably and efficiently exercised by
confining the exercise thereof within the corporate limits of the
municipality, the powers and authority of the municipality
shall extend beyond the corporate limits to the extent necessary
to the reasonably efficient exercise of such powers and
authority within the corporate limits. Such powers and
authority, unless otherwise provided in this code or elsewhere
in law, shall not, however, extend more than one mile beyond
the corporate limits, and such powers and authority shall not
extend into the corporate limits of another municipality
without the consent of the governing body thereof.
(emphasis added). Similarly, the Code of The City of Charleston, West Virginia provides,
“[f]or all such purposes, except that of taxation and for purposes otherwise limited by this
[Charter], the council shall have jurisdiction for one mile beyond the corporate limit.”
Charleston, W. Va., Mun. Code, Charter § 7, in part (2003). Thus, if necessary to exercise
power and authority within a city, a city may act without its corporate boundary. No party
to this action cited to the provisions of either the Charleston City Code or West Virginia
Code § 8-12-19.
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Reversed and remanded.
ISSUED: May 16, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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