The Supreme Court of Appeals of West Virginia recently issued a ruling regarding the procedures that a city is required to follow when annexing property without an election, or what is more commonly known as a shoestring annexation. In the past, this process has ignored the rights of property owners abutting the highways used to extend city limits.
In Doering, et al v. City of Ronceverte, the court reversed the annexation of Stoney Glen subdivision into the city of Ronceverte. The city chose to follow the right-of-ways of three state highways (the shoestring) and then lasso the subdivision.
Writing for the court, Justice Menis Ketchum does an admirable job in explaining that property owners abutting certain state roads own the land under the roadway, and that the roadway is built on an easement. This is particularly true with the county road system that the state took over from the counties in 1933. Referring to the testimony of a Division of Highways right-of-way manager, Justice Ketchum wrote:
“… in the absence of documentation to the contrary, the holdings so acquired by the state were in the form of easements and right-of-ways, with titles to the underlying fee remaining with owners whose property abutted the roads.”
The Supreme Court ruled that certain property owners abutting roads leading to Stoney Glen were “… voters and freeholders of the annexed territory but were unlawfully excluded from the annexation process …” The court has made the correct ruling in this case, and the justices should be applauded.
But you won’t hear any hand clapping in city halls or county courthouses. You can rest assured that no county commission has ever considered property rights as set forth in Doering in past shoestring annexations.
I won’t say that the Supreme Court has opened a can of worms, but it has opened a can of Vienna sausages, a food that a late farmer friend of mine derisively called “lips and noses.”
The Greenbrier County Circuit Court previously ruled the land owners abutting the road lacked standing to file their lawsuit, and further, that these land owners “… failed to demonstrate any significant ownership of the property being annexed …” Doering corrects these errors.
The county tax assessor does not discriminate the easement from the underlying land. Thus, the landowner is taxed for land he cannot use for his purposes. In the aggregate, this amounts to a hefty property tax bill. Typically, a county road easement is 30 feet wide. For every 1,000 miles of county roads, there are 3,636 acres of land covered by a road easement.
Indirectly, Doering may have opened the question as to whether land taken by an effectively perpetual, county road easement, the use of which is controlled by the state, is taxable by the state.
The determination of who owns the land under our roadways is often confusing. As mentioned above, most of the county roads follow easements over private lands. There are exceptions, however. For example, sections of the Staunton-Parkersburg Turnpike in Randolph County (built in the 1840s) reverted to county roads when U.S. 250 replaced part of the turnpike using a different route.
Modern roads such as interstates and Appalachian Corridor highways are built on land condemned by and purchased by the state. Again, there are exceptions. Appalachian Corridor D follows, but not always, U.S. 50 from Clarksburg to Parkersburg. U.S. 50 follows, but not always, the Northwest Turnpike from the 1830s.
You can hire the best lawyer in the state to examine the title to your land, and that lawyer won’t be able to find all the property records regarding highway ownership. Some records are located in the local courthouse. The Division of Highways exclusively maintains some other records. Some records are located in Virginia courthouses or the state capitol at Richmond. And some records are lost to time because the courthouse in West Virginia or Virginia burned to the ground.
The state, then, should use Doering as an impetus to reconcile its highway land records and make those records available to the public at the appropriate courthouse record room. This reconciliation is needed.
As of this writing, the city of Clarksburg and the Division of Highways are at loggerheads as to who owns portions of Chestnut Street in that city. In 1863, the mayor of Clarksburg knew whether Chestnut Street was a city street, an easement or a Virginia turnpike. Why is this now a mystery?
Property rights are an integral part of democracy and capitalism.
In reversing Doering, the Supreme Court deserves praise, especially since this ruling recognizes the standing of property owners in an annexation without election.
