| Larry L. Skeen, Esq.
Skeen and Skeen
Charleston, West Virginia
Attorney for Appellant
| Andrew S. Zettle, Esq.
Huddleston, Bolen, Beatty,
Porter & Copen, LLP
Huntington, West Virginia
Attorney for Appellee
CSX Transportation, Inc.
The Opinion of the Court was delivered PER CURIAM.
JUSTICE ALBRIGHT, deeming himself disqualified,
did not participate in the decision in this case.
JUDGE LOUIS H. BLOOM, sitting by temporary assignment.
JUSTICES STARCHER and McGRAW concur and reserve
the right to file concurring opinions.
A circuit court's entry of a declaratory judgment is reviewed de
novo. Syl. pt. 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d
2. The general rule, subject to certain exceptions, is that appeals will be dismissed where there is no actual controversy existing between the parties at the time of the hearing. Syl. pt. 1, West Virginia Board of Dental Examiners v. Storch, 146 W.Va. 662, 122 S.E.2d 295 (1961).
3. As many times decided, this Court sits to redress wrongs and not to settle moot questions; and whenever it is made to appear that by time or other cause the matter in controversy has been extinguished pending the appeal, the appeal will be dismissed. Syl. pt. 4, Whyel v. Jane Lew Coal & Coke Company, 67 W.Va. 651, 69 S.E. 192 (1910).
This declaratory judgment
action is before this Court upon an appeal from an order entered in the Circuit
Court of Wood County on July 23, 2001. Pursuant to that order, the Circuit
Court held that an 1882 agreement which established a railroad right-of-way
through the tract of land later occupied by the appellant, Ralph E. Gene
Butler, did not provide Butler with an implied right to cross the right-of-way
for commercial purposes. The right-of-way currently belongs to the appellee,
CSX Transportation, Inc. Appellant Butler was under a contract of sale to
purchase the land from its record owner, John E. Price.
This Court has before it
the petition for appeal, all matters of record and the arguments of counsel.
As discussed below, this Court is of the opinion that, inasmuch as the contract
of sale between appellant Butler and Price was terminated and that Butler
was evicted from the property, appellant Butler lacks standing to challenge
the ruling of the Circuit Court upon the implied crossing issue. Consequently,
this appeal is dismissed, and this action is remanded to the Circuit Court
for further proceedings consistent with this opinion.
The tract in question is
located in the City of Williamstown in Wood County. It is bounded on the west
by the Ohio River and on the east by West Virginia Route 14.
By agreement dated May 24,
1882, and of record in the Office of the Clerk of the County Commission of
Wood County, John Fischer granted to the Wheeling, Parkersburg and Charleston
Railway Company a 50 foot right-of-way for the construction of a railroad
track through the property and parallel to the Ohio River and Route 14. As
a result, although the tract could have been entered by way of the Ohio River,
no access was possible from Route 14 without crossing the railroad right-of-way.
Nevertheless, as the Circuit Court noted, no right to cross the right-of-way
was mentioned in the 1882 agreement.
John Fischer is a predecessor
in title to John E. Price, the current record owner of the property. The appellee,
CSX, is a successor to the Wheeling, Parkersburg and Charleston Railway Company.
On May 4, 1999, appellant
Butler and Price entered into a contract of sale pursuant to which Butler
agreed to purchase the property for $130,000. According to the contract, the
purchase included all rights to cross the railroad right-of-way.
The contract further provided that, in the event of the failure of Butler to make monthly
payments, Price could terminate the contract and regain possession of the
Appellant Butler made improvements
to an existing structure on the property and converted it into a seafood restaurant
known as Steamers. From the beginning, however, Butler's commercial
activities were subject to a dispute with appellee CSX concerning the railroad
right-of-way. Butler maintained that, based upon necessity and upon the representations
of Price, he and his customers had an implied right to cross the railroad
right-of-way for commercial purposes. CSX, on the other hand, maintained that
no such right existed and that, in fact, the presence of the restaurant and
its customers constituted a safety hazard. In the latter regard, CSX asserted
that Butler had a responsibility for, but never pursued, the installation
of safety equipment, such as lights and guardrails, in the area. Ultimately,
CSX fenced off the alleged crossing, and the restaurant closed.
In January 2001, Butler
filed this action in the Circuit Court of Wood County, seeking a declaratory
judgment to the effect that he and his customers had an implied right to cross
the railroad right-of-way for commercial purposes. In addition, Butler sought
damages from CSX and Price for interference with his restaurant business.
With regard to Price, Butler requested a refund of monies paid for the property
to date or, in the alternative, a reformation of the contract of sale in order
to reduce the purchase price. The claims against Price were based upon Butler's allegation that Price misrepresented the
existence of an established right to cross the railroad right-of-way.
In May 2001, appellant Butler
and Price joined in a motion for declaratory relief and for partial summary
judgment in which they alleged that the agreement of May 24, 1882, resulted
in the retention by the landowner of an implied right to cross the railroad
right- of-way. A hearing on the motion was conducted by the Circuit Court
in June 2001. On July 23, 2001, the Circuit Court entered an order holding
that the 1882 agreement provided no implied right to cross the right-of-way
for commercial purposes. The Circuit Court did not decide whether
the 1882 agreement provided such an implied right for other purposes, such
as residential, farm or recreational uses. As the order of the Circuit Court
[A]t the time the right-of-way agreement was made between Fischer and the Railway Company, there was no apparent or necessary use for commercial purposes being made by John Fischer of any portion of the railway right-of-way; and the Court is of the opinion, and does find and declare that there was no implied right to use the railway right-of-way for commercial purposes reserved to Fischer and his successors in interest by the agreement dated May 24, 1882 [.] * * * [T]his Court makes no ruling whether an implied crossing easement for residential, farm or recreational uses was reserved to Fischer and his successors in interest [.] * * * [T]he agreement dated May 24, 1882, . . . created no express or implied easement to use or occupy any portion of the railway right-of-way for commercial purposes in connection with Butler's operation of Steamers Restaurant.
In the meantime, Price served
appellant Butler with a notice of termination of the contract of sale, based
upon the failure of Butler to make the monthly payments for the property. In
July 2001, Price filed an action in the Magistrate Court of Wood County and
obtained an eviction order against Butler in that Court. Butler's appeal from
Magistrate Court was rejected by the Circuit Court of Wood County, as reflected
in an order entered in the Circuit Court on September 25, 2001.
In syllabus point 3 of Cox
v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995), this Court noted: A
circuit court's entry of a declaratory judgment is reviewed de novo.
Syl. pt. 1, Painter v. Coleman, 211 W.Va. 451, 566 S.E.2d 588 ( 2002).
More specifically, this Court, in Cox, supra, stated that because
the purpose of a declaratory judgment action is to resolve legal questions,
a circuit court's ultimate resolution in a declaratory judgment action is
reviewed de novo; however, any determinations of fact made by the circuit
court in reaching its ultimate resolution are reviewed pursuant to a clearly
erroneous standard. 195 W.Va. at 612, 466 S.E.2d at 463. See also,
Stull v. Firemen's Pension and Relief Fund, 202 W.Va. 440, 444, 504 S.E.2d
903, 907 (1998).
However, preliminary to
an application of the above standards of review is the question of appellate
jurisdiction, particularly in terms of Butler's standing to bring this appeal. As indicated above, the July 23, 2001, order of the Circuit Court
now before this Court resulted from the filing by appellant Butler and Price
of a motion for a declaratory judgment and for partial summary judgment. The
Circuit Court denied relief to Butler and Price, and only Butler, who was
evicted from the property, filed an appeal to this Court. A number of claims
remain at the Circuit Court level, such as Butler's allegation of misrepresentation
against Price, as well as Butler's claim for damages against CSX for interference
with the restaurant.
Those remaining claims notwithstanding,
the Circuit Court indicated, on the record, that the order of July 23, 2001,
is appealable to this Court pursuant to Rule 54(b) of the West Virginia Rules
of Civil Procedure. As Rule 54(b) states in part:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
However, the Circuit Court's
designation of its order as appealable to this Court under Rule 54(b) is not
dispositive. As this Court noted in Province v. Province, 196 W.Va. 473, 473
S.E.2d 894 (1996): Even if we were to assume that the mandates of Rule
54(b) have been met, a circuit court's determinations, which directly affect
the scope of our appellate jurisdiction are not conclusive on us. 196 W.Va. at 478,
473 S.E.2d at 899. Accordingly, the designation of the July 23, 2001, order
of the Circuit Court as an appealable order under Rule 54(b) does not resolve
the issue of this Court's jurisdiction to review the Circuit Court's ruling
upon the implied crossing issue, especially in the context of the question
of appellant Butler's standing to challenge that ruling and in view of the
fact that Price, the record owner of the property, did not join in the appeal.
The appellee, CSX Transportation,
Inc., contends, inter alia, that appellant Butler lacks standing to challenge
the July 23, 2001, order of the Circuit Court. As stated by CSX, Butler is
asking this Court to determine the respective rights of the successors in
interest to the May 24, 1882, agreement between John Fischer and the Wheeling,
Parkersburg and Charleston Railway Company. That agreement is the basis of
the controversy concerning the existence of an implied right to cross the
railroad right-of-way. According to CSX, Butler is not a successor in interest
to the 1882 agreement because: (1) his contract of sale with Price was terminated,
(2) the restaurant has closed and (3) Butler's eviction from the property
was upheld in a separate action. Consequently, Butler has no standing to pursue
Appellant Butler, on the
other hand, contends that the claims remaining before the Circuit Court, including
his claim for damages against Price for misrepresentation, are dependent upon
this Court's resolution of the implied crossing issue. Butler asserts that
he, thus, has standing to pursue this appeal. CSX responds, however, by stating
that the July 23, 2001, order of the Circuit Court, holding that Butler is
not entitled to an implied right to cross the right-of-way, is the law of
the case (especially since Price did not challenge that ruling) and that,
without this appeal, Butler can still litigate his claim against Price for
In syllabus point 1, of
West Virginia Board of Dental Examiners v. Storch, 146 W.Va. 662, 122
S.E.2d 295 (1961), this Court held: The general rule, subject to certain
exceptions, is that appeals will be dismissed where there is no actual controversy
existing between the parties at the time of the hearing. Gilmore
v. State Department of Education, 191 W.Va. 227, 445 S.E.2d 168 (1994).
That principle is consistent with syllabus point 4 of Whyel v. Jane Lew
Coal & Coke Company, 67 W.Va. 651, 69 S.E. 192 (1910), which states:
As many times decided, this Court sits to redress wrongs and not to
settle moot questions; and whenever it is made to appear that by time or other
cause the matter in controversy has been extinguished pending the appeal,
the appeal will be dismissed. See also, syl. pt. 1, Orwasky v. Chuma,
148 W.Va. 349, 135 S.E.2d 248 (1964), and syl. pt. 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908), both of which state
that moot or abstract propositions are not cognizable by this Court. As stated
The law is well settled that when it appears from the record or extrinsic evidence that no controversy exists between the litigants or that a previously existing controversy has been settled or has ceased to exist a writ of error or an appeal will be dismissed for the reason that courts do not sit to determine moot questions.
(emphasis added) 148 W.Va. at 352, 135 S.E.2d at 250.
Closer to the circumstances
of this action is Rippetoe v. O'Dell, 166 W.Va. 639, 276 S.E.2d 793
(1981). In Rippetoe, a dispute arose between property owners concerning
the use of a road dividing the parties' respective parcels. Specifically,
the appellants asserted that, by moving a gas line under the road to another
section of the road, the appellees violated the appellants' right to use the
road for ingress and egress to the appellants' property. This Court, in Rippetoe,
held that, although the appellants could sue for damages brought about by
the construction work attendant to the moving of the gas line, the appellants,
who had no ownership interest in the road, lacked standing to assert that
the appellees' right to maintain a gas line beneath the road had been exceeded.
As stated in the Rippetoe opinion:
The record of this case does not disclose the present fee owner of the roadway, but it is only that fee owner who has standing to raise an objection to the alleged violation by the appellees of the terms of their easement. * * * [T]he disposition of this case is controlled by the absence of any legal right of the appellants to challenge the appellees' actions, and not by the nature of the appellees' rights [.]
166 W.Va. at 642-43, 276 S.E.2d at 796-97. See also, Pingley v. Pingley, 82 W.Va. 228, 95 S.E. 860 (1918), in which the plaintiff claimed an easement over the adjoining land of the defendant in order to access a county road. Later, the defendant acquired the tract of the plaintiff, thereby becoming the owner of both properties. The controversy, in Pingley, between the parties concerning the easement, thus, became moot, and the plaintiff's appeal to this Court was dismissed.
As in Rippetoe and
Pingley, appellant Butler does not have an ownership interest in the
property in question. He is neither a successor in the chain of title to the
property nor a successor to the agreement of May 24, 1882, which established
the railroad right-of way. Appellant Butler's 1999 contract of sale with Price
expressly provided that, in the event of the failure of Butler to make monthly
payments, Price could terminate the contract and regain possession of the
land. Appellant Butler failed to make the payments, and Price terminated the
contract. The restaurant closed, and Price regained possession of the property
by way of an eviction proceeding instituted in the Magistrate Court of Wood
County. The eviction was upheld by the Circuit Court. In every view, therefore,
appellant Butler lacks standing to challenge the July 23, 2001, ruling of
the Circuit Court upon the implied crossing issue. See, Guido v. Guido,
202 W.Va. 198, 202, 503 S.E.2d 511, 515 (1998), and Coleman v. Sopher,
194 W.Va. 90, 95 n. 6, 459 S.E.2d 367, 372 n. 6 (1995), which cases state, in part, that, in order to have standing to challenge
an action sought to be adjudicated upon appeal, a party must have a legally
In so holding, this Court
is aware that the record indicates that Butler's loss of the purchase of the
property is directly related to his inability to secure a right to cross the
railroad right-of-way. The conclusion that Butler lacks standing to appeal
the crossing issue, however, does not affect Butler's claim for damages against
Price based upon Price's alleged misrepresentation of the existence of an
established right to cross the right-of-way. In that regard, although Price
did not appeal from the Circuit Court's order of July 23, 2001, which found
no such right to cross, the parties, in litigating the misrepresentation claim,
may develop the record upon remand by submitting evidence concerning the prior
uses of the property. Such evidence may bear upon Price's intent to misrepresent
the true circumstances to Butler. In fact, such prior use evidence may disclose:
(1) whether a crossing for any purpose existed over the railroad right of
way, (2) whether access to the property from the Ohio River was ever utilized
and (3) if utilized, whether such access eliminated the necessity of crossing
the railroad right-of-way.
For the reasons stated above,
the appeal of the appellant, Ralph E. Gene Butler, from the July
23, 2001, order of the Circuit Court of Wood County is dismissed, and this
action is remanded to the Circuit Court for a resolution of the remaining
issues in a manner consistent with this opinion.
remanded with directions.