CHARLESTON.

#### County Court of Marion County *v.*Lon Hall, Dave Toothman and Audie B. Toothman

(No. 5127)

Submitted June 16, 1924.

Decided April 14, 1925.

1. *Highways*— Act *Revising and Re-enacting Road Law Repealed Provision as to Alteration; County Road Once Established Continues as Such Until Vacated or Discontinued in Manner Prescribed by Law.*

A county road once established continues as such until vacated or discontinued in the manner prescribed by law. (p. 4).

(Highways, 29 C. J. § 192)

2. *Same*— County *Court Cannot Sell or Barter Right of Way of Public Road, Continuance of Which is Required to Serve Public.*

A county court is without authority to sell or barter the right of way of a public road, the continuance of which is required to serve the public as a necessary outlet, (p. 4). (Highways, 29 C. J. § 227)

Note : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.

Appeal from Circuit Court, Marion County.

Suit by tbe County Court of Marion County against Lon *2Hall and others. From a decree for defendants, plaintiff appeals.

*Reversed and entered.*

*Franh R. Asnos, John W. Mason, Jr.,*and *Ernest R. Bell,*for appellant..

*Shaw <& Shaw,*for appellees.

Litz, Judge:

The bill prays for an injunction commanding the defendants to remove certain obstructions from an alleged public road. The circuit court denied relief, and plaintiff appeals.

In the course of improving the Ohio and Maryland Turnpike from Fairmont to Rivesville, during the years of 1914 and 1915, the County Court of Marion County constructed a new road to be used as part of the highway in lieu of a portion of the original route, known as the Meredith Spring road, a mile and one-half in length.

The new road and the Meredith Spring route pass through land formerly owned by one E. S. Amos. By deed dated July 27,1914, he conveyed to the said County Court a right-of-way for that portion of the new road embraced within his property, in consideration of the sum of twenty-five dollars and the agreement of the court to discontinue the Meredith Spring .route. No attempt, however, was ever made to discontinue or abandon this, road, and it continued to be used by -the public until April, 1923, when defendants, claiming through the heirs of E. S. Amos an absolute fee in the roadway, constructed a wire fence entirely across the same. This suit was brought to compel the removal of that obstruction.

The defendants would justify their acts with the theory that the construction and use of the new road worked a legal discontinuance and abandonment of the Meredith Spring route. This defense is predicated upon chapter 75, Acts of the Legislature of 1882, amending section 80 of chapter 14, Acts 1881, and providing:

> “The county court of a county may, upon petition, direct any county road, other than a turnpike, or any other road transferred by the State to any county or counties, or landing therein, to be discontinued; but notice of every such petition must, three weeks at least before it is acted upon, *3be posted at the front door of the court house, and at three public places in every district in which any part of the said road or landing may be. Upon such petition, after notice given as aforesaid, the county court shall appoint two or more viewers, or a committee of their own body, to view such road or landing and report in writing whether, in their opinion, any, and if any, what inconvenience would result from discontinuing the same. Upon such report and other evidence, if any, the court may discontinue the road or landing; taking care in every case of an established post road not to discontinue the same until another has been established. *But this section shall not he construed so as to 'prevent any county court from altering any such turnpike or other road so transferred by the State as aforesaid, as provided for in section thirty-five of this chapter, whenever it becomes necessary to do so in order to place such turnpike, or other road on better ground or grade than the existing location, and when such alteration is made, and the said turnpike or other road, as so' altered, is completed and put in good order, and condition, the former location thereof, to the extent of such alteration, shall be discontinued without any such notice as is herein required as to the discontinuance of an entire county road in any county other than such turnpike or other road so transferred as aforesaid.”*

Chapter 52, Acts 1909, by completely revising and reenacting the road law and repealing all acts and parts of acts inconsistent therewith, repealed that part of the statute above quoted providing for the alteration of certain roads without notice. *Conley*v. *Supervisors,*2 W. Va. 416; *State*v. *Mines,*38 W. Va. 125, 18 S. E. 470; *Herron*v. *Carson,*26 W. Va. 62; *Stewart*v. *Tenant,*52 W. Va. 559, 561, 44 S. E. 223.

As the road in question could have been legally discontinued only by a proceeding before the county court, and notice to the public, it is still a part of the road system of Marion County under the supervision of the county court. *Dudding*v. *White.*82 *W.*Va. 542, 96 S. E. 942.

But the defendants assert that the county court is estopped to deny the discontinuance of the road and cannot, there*4fore, maintain tbe suit. Tbe answer to tbis contention is tbat tbe agreement of tbe court to discontinue tbe road was *ultra vires*and could not have been enforced. It is, consequently, no basis for estoppel. *County Court*v. *Town of Piedmont,*72 *W.*Va. 296, 78 S. E. 63; McQuillin Municipal Corp., Sec. 1172; *Washington etc. R. Co.*v. *Alexandria,*98 Va 344, 350, 36 S. E. 385; *Roanoke Gas Co.*v. *Roanoke,*88 Va. 810, 14 S. E. 665; *Bank*v *County Court,*28 W. Va. 273.

‘ ‘ Tbe county court is a corporation created by statute, and can do only sueb things as are authorized by law, and in tbe mode prescribed.” *Goshorn’s Ex’rs.*v. *County Court,*42 W. Va. 735. County courts bave been given no authority to trade or release tbe easement of a public road for right-of-way to establish another, and such power cannot be implied as incident to their general supervision and control of tbe public roads. On tbe ground that tbe county court is not expressly authorized by statute to borrow money, it was held in the case of *Bank*v. *County Court,*cited, tbat suit could not be maintained upon a note given by a county court for money used in tbe construction of a courthouse, although the county had received the benefit thereof. A county road once established continues as sueb until vacated or discontinued in tbe manner prescribed by law. *State ex rel. Yost*v. *State Road Commission,*96 *W.*Va. 184, 122 S. E. 527; *White*v. *Dudding,*cited.

It appears that one hundred or more persons are wholly dependent upon the road under consideration as a public outlet.

The decree of the circuit court dismissing the bill is reversed, and tbis Court, proceeding to enter such decree as the circuit court should have entered, awards a mandatory injunction in accordance with tbe prayer of tbe bill.

*Beversed and entered.*