IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1996 Term
A & M PROPERTIES, INC.
Plaintiff Below, Respondent
NORFOLK SOUTHERN CORPORATION AND
NORFOLK SOUTHERN RAILWAY COMPANY,
A SUBSIDIARY OF NORFOLK SOUTHERN CORPORATION
Defendants Below, Petitioner
Certified Question from the Circuit Court of Jefferson County
Honorable David H. Sanders, Judge
Civil Action No. 95-C-224
CERTIFIED QUESTION ANSWERED
Submitted: May 13, 1998
Filed: July 15, 1998
Tracey B. Dawson
Steptoe & Johnson
Martinsburg, West Virginia
Attorney for the Respondent
Clarence E. Martin, III
Martin & Seibert
Martinsburg, West Virginia
Attorney for the Petitioners
JUSTICE McCUSKEY delivered the Opinion of the Court.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
. 1. "Railroads heretofore
constructed, or that may hereafter be constructed in this State, are hereby declared
public highways and shall be free to all persons for the transportation of their persons
and property thereon, under such regulations as shall be prescribed by law; and the
legislature shall, from time to time, pass laws, applicable to all railroad corporations
in the State, establishing reasonable maximum rates of charges for the transportation of
passengers and freights, and providing for the correction of abuses, the prevention of
unjust discriminations between through and local or way freight and passenger tariffs, and
for the protection of the just rights of the public, and shall enforce such laws by
adequate penalties." The Constitution of West Virginia, Article XI, Section 9.
2. "Railroads are generally
incorporated and operated as private companies. The capital comes from private investors
and the profits are likewise returned to the private sector. Despite this fact, however,
railroads are not viewed strictly as private corporations since they are publicly
regulated common carriers. Essentially, a railroad is a highway dedicated to the public
use. This dedication imparts to the railroad the status of a quasi- public
corporation." Marthens v. B & O Railroad Co., 170 W.Va. 33, 37, 289 S.E.2d
706, 711 (1982) citing Eckington & Soldier's Home R. Co. V. McDevitt, 191 U.S.
103, 24 S.Ct. 36, 48 L.Ed. 112 (1903); United States v. Trans-Missouri Freight Assoc.,
166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897).
3. "The public easement in the
public highways, including roads, streets, alleys, and other public thoroughfares,
dedicated to the use of the general public by individuals, or under the right of eminent
domain, is such property, and cannot be lost to the people by the negligence of public
officials or the unlawful acts of individuals." Syllabus point 4, Ralston v. Town
of Weston, 46 W.Va. 544, 33 S.E. 326 (1899).
4. "An individual cannot destroy
such easement by setting up a claim by prescription, adverse possession under the statute
of limitations, or equitable estoppel, as the people cannot be deprived of their sovereign
rights in any of these ways." Syllabus point 5, Ralston v. Town of Weston, 46
W.Va. 544, 33 S.E. 326 (1899); Huddleston v. Deans, 124 W.Va. 313, 21 S.E.2d 352
(1942); Bauer Enterprises v. City of Elkins, 173 W.Va. 438, 317 S.E.2d 798 (1984).
5. Under Article XI, Section 9, of the Constitution of West Virginia, the track of a railroad is to be considered a public highway. As neither adverse possession, prescriptive easement, nor equitable estoppel may lie against a public highway, no party may establish an interest in the trackway of a railroad through any of these methods, so long as the trackway continues to be used for railroad purposes.
This certified question comes before the Court upon the
petition of Norfolk & Western Railway Co., defendants in a suit in the Circuit Court
of Jefferson County. Respondent had commenced a civil suit in the Circuit Court of
Jefferson County seeking declaratory judgement that it had obtained a prescriptive
easement across active railroad trackage owned in fee simple by the Petitioner, thereby
creating a private railroad grade crossing. The circuit court allowed Petitioner's motion
to dismiss, in which Petitioner averred, that, as a matter of law, prescriptive easement
could not lie against the trackway of a railroad. Respondents filed a motion to alter or
amend the judgement, or in the alternative to certify the question. In response to this
motion the circuit court altered its answer, allowing prescriptive easement to lie against
the trackway of a railroad and certified the question to this Court. For the reasons
enumerated below, we answer the certified question in the negative.
FACTUAL AND PROCEDURAL HISTORY
A & M Properties, Inc. (A & M) is the owner of a tract of property in Shepherdstown District, Jefferson County, West Virginia. The Norfolk & Western Railway Co., (N & W) a subsidiary of Norfolk Southern Railway Co., owns a sixty-six foot wide strip of real property running through Shepherdstown District, upon which is laid the trackbed of the Norfolk & Western Railway and which is, for a segment of its length, adjacent to the tract owned by A & M. A & M purchased the aforementioned tract on May 14, 1990, and for a period after that time, along with its various invitees and licensees, made use of a dirt road which extended across the tracks of the Norfolk & Western Railway Co.
A & M claimed that it made use of the crossing over N &
W's tracks as a matter of right. A & M also claimed that the railroad had notice of
its use from the existence of the crossing and the position of certain buildings on the
tract. As N & W had never ordered A & M to desist, A & M's belief was that it
had implicit permission from N & W to continue to use the crossing.
In April of 1995, the events which gave rise to this suit
transpired. N & W prevented the further use of the grade crossing by A & M by
placing a gate across the road on either side of the tracks. Later, the entire portion of
the crossing which was on N & W's property was removed by N & W personnel.
Subsequently, A & M brought suit against N & W in the
Circuit Court of Jefferson County. A & M alleged that the use of the grade crossing
was open and notorious, continuous and uninterrupted for a period of five years on its
part, and for more than ten years when the use of the crossing by its predecessors in
title was tacked; thus, A & M had established a valid prescriptive easement to cross
the track of the Norfolk & Western Railway Co. in the location of the grade crossing.
A & M also asked for $10,000.00 in damages as compensation for its inconvenience,
deprivation of access, property damage, and additional costs resulting from the
destruction of the grade crossing.
N & W made a motion to dismiss alleging that a
prescriptive easement would not lie against a railroad trackway, due to the functional
equivalence of a railroad to a public highway. The Circuit Court of Jefferson County
granted N & W's motion to dismiss. However, the Circuit Court of Jefferson County then
granted A & M's motion to alter or amend the judgment and certified the following
question to this Court: "Whether West Virginia law provides a cause of action for
prescriptive easement against property owned in fee simple by a railroad." The facts
of this case, however, show that the easement sought by plaintiff was made not merely
against property owned in fee simple by a railroad, but upon the actual trackway of the
railroad. Therefore, answering this question in the context of these particular facts, it
is the opinion of this Court that it does not.
STANDARD OF REVIEW
The standard of review to be applied in reviewing a certified question was recently set forth in Syllabus Point One of Gallapoo v. Wal-Mart Stores, Inc. 197 W.Va. 172, 475 S.E.2d 172 (1996), wherein we held that "[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo."
It is axiomatic to state that the Constitution of West Virginia is the supreme law of this State. In that august document we find language to the effect that "[r]ailroads heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways . . . ." Constitution of West Virginia, Art. XI, §9. This was no innovation by our founders, for, as Lord Chief Justice Hale noted more than three hundred years ago in the legal treatise "De Portibus Maris", "if a man set out a street in or near a building on his own land, it is no longer bare private interest, but is affected by a public interest." Lord Chief Justice Hale, "De Portibus Maris", in, 2 Hargrave's Law Tracts, 78 (Hargrave, ed.) quoted in Laurel Fork & Sand Hill Railroad Co. v. West Virginia Transportation Co., 25 W.Va. 324, 336 (1884). This ancient doctrine regarding construction of private thoroughfares for public use, no less relevant now than when it was first enunciated, is the hinge upon which the issue presented by this case turns.
Railroads in West Virginia have traditionally been recognized
as uniquely situated corporations. No less than five sections of Article XI of the
Constitution of this state deal with railroads. The special status of railroads as
quasi-public corporations was foremost in the minds of the framers of our Constitution.
Only twelve years after the adoption of our current Constitution, this Court addressed its
provisions concerning railroads and found that the result of the combination of these
provisions was that railroads had the status of a quasi- public corporation. Laurel
Fork & Sand Hill Railroad Co. v. West Virginia Transportation Co., 25 W.Va. 324
As recently as 1982, this Court continued to state that
railroads have a dual public- private status. In that year, Justice Neely provided a clear
exposition of the traditional current of thought regarding the status of railroads when he
stated that despite the fact that they were private corporations "railroads are not
viewed strictly as private corporations since they are publicly regulated common carriers.
Essentially, a railroad is a highway dedicated to the public use. This dedication imparts
to the railroad the status of a quasi-public corporation." Marthens v. B & O
Railroad Co., 170 W.Va. 33, 37, 289 S.E.2d 706, 711 (1982) citing Eckington &
Soldier's Home R. Co. V. McDevitt, 191 U.S. 103, 24 S.Ct. 36, 48 L.Ed. 112 (1903); United
States v. Trans-Missouri Freight Assoc., 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007
It is the opinion of this Court that a departure from the plain
and unambiguous language of our Constitution and from over a century of precedent is not
advisable. Therefore, this Court finds that a railroad is, as the Constitution says, a
"public highway." Constitution of West Virginia, Art. XI, §9. Having
acknowledged this to be true, application to the case at bar is clear. It has been settled
law in this State for almost a century that "[t]he public easement in the public
highways . . . dedicated to the use of the public by individuals . . . cannot be lost to
the people by . . . the acts of individuals." Syllabus point 4, Ralston v. Town of
Weston, 46 W.Va.544, 33 S.E. 326 (1899). Here, despite A &M's prior use of the
crossing, they are not entitled to have continued rights to use it as they may not
appropriate the property of a quasi-public corporation which is used in the public
interest by "prescription, adverse possession under the statute of limitations, or
equitable estoppel, as the people cannot be deprived of their sovereign rights in any of
these ways." Bauer Enterprises v. City of Elkins, 173 W. Va.
438, 317 S.E.2d 798 (1984); Huddleston v. Deans, 124 W.Va. 313, 21 S.E.2d 352
(1942); Syllabus Point 5, Ralston v. Town of Weston, 46 W.Va. 544, 33 S.E. 326
Respondent cites Dulin v. Ohio River Railroad Co., 73
W.Va 166, 80 S.E. 145 (1913), as controlling authority for the proposition that a
prescriptive easement may be created within a railroad right-of-way. There are major
factual distinctions between this case and Dulin. Dulin, for example, involved
a mere easement to the railroad to cross the land of a dominant estate, not, as in this
case, a trackway owned in fee simple by the railroad. The successors in interest of the
grantor of the easement to the railroad subsequently claimed they had cultivated a small
strip within the granted easement for the requisite number of years to establish title by
adverse possession. This Court in Dulin found against these plaintiffs, and
explicitly noted that they had not adversely possessed the land in question as their
"cultivation of a portion of the right-of-way land was not necessarily hostile or
adverse to the railroad company's right." Dulin, 73 W.Va 166, 172, 80 S.E.
145, 147. Justice Williams, writing for the majority in Dulin, noted
parenthetically that "Judge Miller and myself think that the doctrine of adversary
possession does not apply to a railroad company's right of way, and the other members of
the court hold that it does" Dulin, 73 W.Va. at 170. Adverse possession
against the trackway of a railroad might be said to exist under this ambiguous
language. However, this hypothetical language was mere dicta in Dulin and will not
stand as precedent under our policy that "[o]biter dicta or strong
expression in the Court's opinion, where such language was not necessary to the decision
of the case, will not establish a precedent." In re Kanawha Valley Bank, 144
W.Va. 346, 382, 109 S.E.2d 649, 669 (1959), quoting Chesapeake & Ohio R. Co.
v. Martin, 154 Va. 1, 152 S.E. 335 (1930). Therefore, in light of this policy and to
put an end to any latent ambiguity remaining as a result of Dulin, this Court feels
compelled to set forth an unambiguous standard in the light of the unambiguous language
found in our Constitution.
While this Court has not been presented with this issue for
many years, the Supreme Court of Virginia has seen it quite recently in the case of Norfolk
& Western Railway Company V. Waselchalk, 244 Va. 329, 421 S.E.2d 424 (1992). In
that case the Supreme Court of Virginia cited the principle established in City of
Lynchburg v. Chesapeake and Ohio Ry. 170 Va. 108, 195 S.E. 510 (1938), that "no
prescriptive right can be acquired in property affected with a public interest or
dedicated to a public use." City of Lynchburg v. Chesapeake and Ohio Ry. 170
Va. at 116, 195 S.E. at 514. The Supreme Court of Virginia then added that "[t]here
can be little doubt that this railroad property is affected with a public interest"
as numerous trains passed over the crossing each day, exactly as they do through the grade
crossing in Shepherdstown which is of particular concern in this case. Waselchalk,
244 Va. At 330, 421 S.E.2d at 425.
We approve of this stance of the Supreme Court of Virginia. As
under Article XI, Section 9 of the Constitution of West Virginia, the track of a railroad
is to be considered a public highway. As neither adverse possession, prescriptive
easement, nor equitable estoppel may lie against a public highway, no party may establish
an interest in the trackway of a railroad through any of these methods. This is, of
course, subject to the limitation implied by Marthens, supra, and supported
by Waselchalk, supra, that the trackway must be in use for railroad
To those who claim that this standard grants too much
protection to railroads, it must be remembered that it is founded in our Constitution and
also, that in exchange for such special protection as our Constitution gives to the
trackway of a railroad, there are equal and opposite responsibilities enjoined upon these
quasi-public corporations. This principle is not an innovation, but is as old as our
nation. Lord Ellenborough noted that if a landowner or corporation would take the benefit
of providing a public service, "he must as an equivalent perform the duty attached to
it on reasonable terms." Aldnutt v. Ingels, 104 Eng. Rep. 206, 211, 12
East 527, 537 (K.B. 1810). Railroads are not free to act in numerous intimate functions of
their business in which normal corporations are at liberty to act as they please without
any restraint save that of the market; rather, they are governed by the state as to the
rates which they charge and in the employment of their property which is devoted to a
public use. Syllabus Point 3, Laurel Fork & Sand Hill Railroad Co. v. West Virginia
Transportation Co., 25 W.Va. 324 (1884).
Not only are the fundamental principles of our law engaged
here, but there are sound policy reasons for this stance as well. This Court does not wish
to encourage the creation of impromptu, non-marked, grade crossings by every property
owner who wants to create a shortcut across the trackway of a railroad. The dangers to
public safety of such a practice, especially when continued for such an amount of time as
to establish adverse possession or a prescriptive easement in a grade crossing, are all
too high. It is equally true that the inconvenience to railroads of being forced to
maintain grade crossings created at any place a hostile party chose would unnecessarily
burden the flow of goods and services to consumers.
We reiterate that, for the reasons explained above, under Article XI, Section 9, of the Constitution of West Virginia, the track of a railroad is to be considered a public highway; as neither adverse possession, prescriptive easement, nor equitable estoppel may lie against a public highway, no party may establish an interest in the trackway of a railroad through any of these methods, so long as the trackway continues to be used for railroad purposes. Therefore, the amended question certified from the Circuit Court of Jefferson County is answered in the negative, and this matter is remanded to that Court for further proceedings.