CHARLESTON.

#### James Ryan *et al. v.*The County Court of Monongalia Country

(No. 6614)

Submitted January 8, 1930.

Decided January 14, 1930.

*405
      *Lazzelle & Lazzelle,*for plaintiffs in error.

*406
      *Albert Shuman*and *John*D. *Downes,*for defendant in error.

Woods, Judge:

This is a proceeding in mandamus to compel tbe county-court of Monongalia county to re-locate, alter and open, a certain road in Union district of said county, to-wit, tbe Sand Spring road. From a judgment of tbe circuit court, trying tbe case in lieu of a jury, denying tbe writ and dismissing tbe case, error is prosecuted to tbis Court.

Tbe relators base tbeir right to tbis summary remedy on an express oral authorization and establishment of tbe alteration and re-location of the Sand Spring road by tbe county court as a corporate body. Tbe denial of such authorization by tbe answer of tbe county court defines tbe chief issue.

Tbe county court is possessed only of such powers as are expressly conferred by tbe constitution and legislature, together with such as are reasonably and necessarily implied in the full and proper exercise of tbe powers so expressly given. It can do only such things as are authorized by law, and in tbe mode prescribed. *Barbor*v. *County Court,*85 W. Va. 359; *Goshorn*v. *County Court,*42 W. Va. 735. Our statute provides tbe course to be followed by tbe county court in the establishment or alteration of a county road. It may be done either upon a petition of any person setting forth specifically *the*nature and location of tbe proposed work, or tbe court may do so without such petition after notice, in any case in which they deem tbe best interests of tbe people of tbe county require it. It further provides that viewers shall be appointed, ór a committee of tbeir own body, who shall view tbe ground and report tbe advantages or disadvantages, which, in tbeir opinion, will result as well to individuals as to tbe 'public from the proposed work and tbe facts and circumstances that may be useful to enable tbe county court to determine whether such work ought to be undertaken by tbe county. Tbe court is further required to make careful examination of other routes or locations than that proposed or petitioned for, keeping in view at all times tbe possible future development of tbe county and the accommodation *407of tbe general traveling public, and shall report in favor of tbe one they prefer, with tbe reasons for tbeir preference, and a map giving tbe grades and bearings of tbe routes and locations shall be returned with tbeir report. This report may be recommitted. Code, Chapter 43, section 137. Tbe petition in tbe present case is to alter a road already established. This Court has held that a change in tbe location of a road, thus abandoning it on a former location, requires some affirmative act or order of tbe court authorizing or directing tbe change. *County Court*v. *Hopkins,*80 W. Va. 393; *Dudding*v. *White,*82 W. Va. 542.

Tbe foregoing recital of statutory law and tbe construction put upon it by this Court reveals tbe prerequisite of a showing at least of a definite act of, the court as a corporate body establishing a proposed change in a public, highway. That a record of tbe fact would be tbe best evidence goes without saying. In fact, tbe absence of such record evidence generally is of itself conclusive in such matters. *Williams*v. *Main Island Creek Coal Company,*83 W. Va. 464. Tbe only record made here in regard to tbe establishment and alteration of tbe. Sand Spring road is an order of tbe court filing tbe petition therefor, and reserving consideration of it until a future term thereof. This action of the court was taken on May 3, 1921. However, tbe relators rely upon tbe fact that a proceeding was instituted six years later in tbe circuit court for a condemnation of tbe lands which tbe proposed road would require to be taken. "We are not advised of the full import of this alleged proceeding, except a recital in tbe petition for mandamus that a final order was entered therein on October 15, 1927, and that it approved tbe report of tbe commissioners, directed tbe payment to tbe property owner of tbe amount stated in tbe commissioner’s report, ordered that tbe title to tbe easement of tbe lands so taken should vest in tbe applicant, and that tbe damages therein assessed were paid to tbe property owner by tbe county court. In valid proceedings of this kind it is sufficient to show that tbe lands proposed to be taken are to be used for public purposes, and that they are necessary for such purposes. It is a matter of common knowledge that oft-times the damages assessed are *408more than the governing body of the municipality deems able to pay and the project is abandoned. Where the damages have been paid by the county, as appears in the case under consideration, the court, in view of the public funds available, would still be vested with discretionary power as to the time when the proposed project be entered upon. Mayhap it would not be estopped from refusing to use the land for the purposes for which it was condemned if for any reason the public interest demanded such action to be taken. So, this proceeding of itself would not necessarily establish the fact that the court had by an affirmative act authorized or directed the alteration and re-location of the road in question. Other acts reliedá on to the effect that certain proponents of the change in the highway had been furnished material for clearing the proposed changed highway of stumps, etc., likewise fall short of evidence within "themselves of the establishment of the road.

Admitting that oral testimony can be received to show that the court in fact established the road by an affirmative action of the court in session, and which lacked only a recordation of its action, is the evidence proffered here of that cogency required to sustain mandamus? Judge Lazzelle’s testimony in regard to the situation as he found it on appearing before the county court, for the relators, in June, 4929, is illuminating. He found the court at that time adverse to taking any action toward opening the road. The court expressed a desire “to go out and look the road over again.” So, up to this time it did not look as if there had been any agreement. Subsequently the court in discussing the matter with Judge Lazzelle, in the language of the latter: “After talking some time, all talking together, all talking and taking an interest in it, Mr. Keener, the other two members being present and clearly by their attitude assenting to it, they said, 'Now, that is alright, we are going to open that road, that is settled.’ ” On the contrary, we have the testimony of one of the members of the court, who went upon the bench in January, 1929. He had formerly served as a supervisor of roads in Union district, where the proposed road was located. While occupying the latter position he *409was inquired by tbe county court in March, 1927, to go out and make investigation of tbe proposed location of tbe Sand Spring road. He did so and reported adversely as to its feasibility. Upon being told by tbe supervisor of tbe estimated cost of the project, tbe supervisor says: “They (tbe court) tbrowed up their bands and said: ‘We weren’t figuring on spending more than three or four hundred dollars’. That is1 all I know about tbe road at that time. ’ ’ He further states that while he was a member of the court that body took no action in the matter. As already shown, two modes are prescribed by law for the alteration and re-location of a public highway, either upon petition by taxpayers or by the county court of its own volition. There is no evidence in the record showing which method is relied on here. Nor is there shown the appointment of viewers, a return to the court of a report showing advantages or disadvantages of the proposed work, with map thereof, basic steps ordered by the statute to be taken in the proceedings of this kind. In view of the statute (Code, Chapter 39, section 46) requiring “all the proceedings” of the court to be entered of record, the fact that no record was made is potential evidence in determining whether the county court actually accepted the easement of the right-of-way and authorized the alteration and re-location •of the road.

The evidence offered by the relators to show an affirmative action of the county court in making the proposed change in the highway under consideration is not of that clear and convincing character required to sustain mandamus. The public has a right to be advised from the records of the corporate body entrusted with the establishment, alteration and relocation of its public highways of all its actions in relation thereto. Courts should be slow to enforce affirmative action ■of such body where there is absence of such record. Rather that the relators should suffer injury than the public welfare be endangered by such forced action. The statute vests in the county court discretionary power respecting their right to control the location, establishment, alteration and opening for use and travel of the public roads in their counties. In the absence of a clear showing of affirmative action, by such *410tribunal, locating, establishing and altering a highway, this power will not be controlled by mandamus. *Ryan*v. *County Court,*86 W. Va. 40. But, even if the proposed change and re-location of the road had been properly authorized, the county court has discretionary power when to open it and prepare it for the use of the public. This action on its part is necessarily dependent upon the state of the public funds available for that purpose, and would not ordinarily be controlled by mandamus. So, on any view of the case made here, we are of the opinion that the ruling of the circuit court in refusing mandamus should be upheld.

*Affirmed.*