Town of Bancroft v. Turley

287 S.E.2d 161 (1982)

TOWN OF BANCROFT, a Municipal Corporation v. James TURLEY and Jo Turley.

No. 14925.

Supreme Court of Appeals of West Virginia.

November 3, 1981.

Rehearing Denied February 23, 1982.

*162 Leo Catsonis, J. David Cecil, Charleston, for appellants.

W. Stuart Calwell, Jr., Franklin Lee Gritt, Jr., Nitro, for appellee.

PER CURIAM:

This is an appeal by James Turley and Jo Turley from an Order of the Circuit Court of Putnam County enjoining them from blocking a "public way" in the Town of Bancroft. The case arose after the appellants installed a mobile home across "Kanawha Street" in Bancroft. In this appeal, the appellants assert that the Town failed to establish that "Kanawha Street" was a public way rather than their private property, and that the Court committed a number of procedural errors in resolving the issues in the case. After considering the record, we find that the Court did not commit reversible error, and we affirm its judgment.

In State ex rel. Riddle v. Department of Highways, 154 W.Va. 722, 725, 179 S.E.2d 10, 13 (1971), we outlined the methods by which a public road could be established. We said:

"This Court has said that generally there are three methods by which a public road or highway may be established, namely, by condemnation, by continuous and adverse use by the public for the statutory period accompanied by some official recognition of such road by public authority, and by dedication of the land by its owner to public use, or by his written consent to such use, and acceptance of the dedication by the proper authorities. Ryan v. The County Court of Monongalia County, 86 W.Va. 40, 102 S.E. 731." This case was tried by the circuit court without a jury. In the course of the proceedings, evidence was introduced by the Town showing that the public had used "Kanawha Street" adversely for ten or more years prior to the placement of the appellants' trailer and that the Town had paid for materials to top it and had periodically and officially requested that the State Road Commission assist in maintaining it. The evidence also showed that the appellant, before placing his trailer on the property, had contacted the Town and was informed that "Kanawha Street" was a public road. While not uncontradicted, this evidence, if believed by the trial court, was sufficient to establish a public way by continuous and adverse possession coupled with official recognition.

In syllabus point 8 of Sanders v. Roselawn Memorial Gardens, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968), we said:

"A finding of fact made by a trial chancellor or by a trial court sitting in *163 lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by this Court on appeal unless the evidence plainly and decidedly preponderates against such finding." See, Foglesong v. Foglesong Funeral Home, Inc., 149 W.Va. 454, 141 S.E.2d 390 (1965); Lusher v. Sparks, 146 W.Va. 795, 122 S.E.2d 609 (1961).

In as much as evidence in the case before us supports the court's finding that "Kanawha Street" was a public way, we believe, in accordance with syllabus point 8 of Sanders, that the court's finding should not be disturbed on appeal.

After thoroughly examining the procedural points which relate principally to the pleadings filed by the Town, we conclude that substantial justice has been done. Even if technical error has been committed, correction of that error and retrial would not tend in any measure to produce a different result. In such a situation, the judgment of the lower court should not be reversed. See, Napier v. Plymale, W.Va., 280 S.E.2d 122 (1981); Barnes v. City of Grafton, 61 W.Va. 408, 56 S.E. 608 (1907).

Accordingly, the judgment of the Circuit Court of Putnam County is affirmed.

Affirmed.