Ketchum

Rowe

CHARLESTON – Ronceverte city council members who annexed a subdivision four miles away illegally included roads leading to the subdivision without including properties along the roads, the Supreme Court of Appeals decided on Jan. 20.

The Justices voided the annexation of Stoney Glen subdivision, ruling that ownership of about 100 parcels of property along the roads extends beneath the roads.

They reversed Greenbrier Circuit Judge James Rowe, who held that owners along the roads lacked standing to challenge the annexation.

Justice Menis Ketchum wrote that under West Virginia code, a city must enumerate and verify the number of eligible petitioners from the additional territory.

"That was not done in this matter," he wrote. "The record before this Court demonstrates the unlawful exclusion."

He quoted Ernest Lefler, right of way manager for the Division of Highways, who testified that the state assumed jurisdiction of all county roads in 1933.

"According to Lefler, in the absence of documentation to the contrary, the holdings so acquired by the state were in the form of easements and rights of way, with titles to the underlying fee remaining with owners whose property abutted the roads," he wrote.

He wrote that two owners on Morgan Hollow Road produced deeds from 2001 and 2005, extending conveyances upon or underneath the road.

He wrote that the deeds constitute a legal reality entitling the owners to the same consideration as the developer, West Virginia Farm Properties.

The developer, from Virginia, petitioned to annex 293 acres in 2008.

State law allows annexation by election or petitions, and the council chose petitions.

The petition process requires approval from a majority of qualified voters and a majority of freeholders in the additional territory.

The council adopted an ordinance in 2009, annexing Stoney Glen and portions of U.S. Highway 219, Hokes Mill Road, and Morgan Hollow Road.

Robert Doering and other residents of the Organ Cave community, near Stoney Glen, sought an injunction invalidating the ordinance.

They alleged the city failed to properly calculate the pool from which majorities of voters and freeholders would be counted.

Rowe dismissed the action, finding no evidence of any injury.

He wrote that challengers "failed to demonstrate any significant ownership of the property being annexed, other than a possibility of a remote reversionary right to land under a highway."

The right didn't appear so remote to Ketchum.

He quoted a 1919 decision that, "upon the acquisition of a public street, the fee of the land remains in a landowner, and the public acquires an easement in the street for travel."

He quoted a 1964 decision that owners of real estate abutting a highway have a public right in common with others and private rights.

He quoted an Ohio Supreme Court decision that "they own the property underlying the roadway and will be affected if the road that runs directly in front of their property is annexed into the municipality."

William Turner of Lewisburg represented the challengers.

Aaron Ambler of Lewisburg represented the city.

Jesse Guills Jr. of Lewisburg represented West Virginia Farm Properties.




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