OPINION ISSUED JANUARY 17, 1986
BANKERS POCAHONTAS COAL LIMITED PARTNERSHIP AND W. B. SWOPE,
DEPARTMENT OF HIGHWAYS
Robert M. Worrell, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
This claim was filed against the respondent by Bankers Pocahontas
hereinafter referred to as claimant Bankers, but when the evidence
disclosed that a portion of the
claim consists of certain monies expended by W. B. Swope, a partner
the limited partnership,
Court amended the style of the claim to include W. B. Swope,
individually, hereinafter referred
to as claimant Swope.
By deed dated March 24, 1931 and of record in the Office of the
of the County
Commission of McDowell County, West Virginia, in Deed Book 119, at
Pocahontas Coal Company and its lessee, Kingston Pocahontas Coal
the County Court of McDowell County a parcel of land for the
construction of a bridge over
Tug River. The deed provided that title to the bridge and the
land would revert to the
grantors if the county court failed to maintain the bridge for a
of two consecutive years.
Claimant Bankers is the successor to the rights of the grantors in
The bridge is the only method of vehicular access to the part of the
City of Welch, West
Virginia, in which the sanitary land fill and water systems are
as well as access to certain
coal mines operated by claimant Bankers.
In April or May 1979, following complaints by local residents
concerning the safety of the
bridge, employees of the respondent inspected it and recommended
the bridge be posted
for a three ton weight limit. Pursuant to the Commissioner's Order
July 17, 1979, the
respondent posted the bridge for a three ton weight limit. There
some indication in the
record that the county court had posted a three ton limit on the
sometime previous to the
action by the respondent.
As a result of the 1979 posting, claimant Bankers was prohibited
driving its coal trucks
across the bridge. In fact, they were stopped by law enforcement
officers. Local residents
continued to use the bridge, as well as trucks of the City of Welch
proceeding to and from the
sanitary land fill. Claimant Bankers filed suit for declaratory
in the Circuit Court of
McDowell County against respondent to determine ownership of the
The Circuit Court
found that the county court had failed to maintain the bridge for
least a period of two
consecutive years, and the title to the bridge had reverted to
Bankers. The Court further
ordered the Commissioner to rescind its posting order and enjoined
respondent from exercising
further jurisdiction over the bridge.
During the period of time in which the coal trucks were unable to
the bridge, claimant
Bankers attempted to develop and use a dirt road over the mountain to
Premier, West Virginia.
This effort was stopped by the Department of Natural Resources.
Swope, one of the
partners in the limited partnership, had a low water bridge
near the existing bridge
to enable the coal trucks to cross the river. This low water bridge
also used by some of the
local residents until it was subsequently destroyed by high water.
Claimant Bankers seeks to recover $1,544.82 expended on repairs to
bridge prior to the
1979 posting by the respondent and attorney fees and costs of
incurred in the
declaratory judgment suit against respondent.
Claimant Swope seeks to recover $6,211.76 expended by him on
for materials used in the construction of the low water bridge.
The McDowell County Circuit Court ruled that the title to the
had vested in claimant
Bankers. There can be no recovery of funds expended by claimant
for repairs on its
bridge prior to the posting of the weight limits by the respondent,
is there any authority or
basis for this Court to make an award for the attorney fees and
expended by claimant
Bankers in the McDowell County litigation. However, it was
the claimants to
provide a means of access for trucks to their mining operation, and
do so, the low water
bridge was erected. Claimant Swope, as a partner in Bankers
Coal Limited, paid
invoices of $6,211.76 for materials used in the construction of the
The Court finds that claimant Swope is entitled to an award for
costs expended by him on
the low water bridge and makes an award of $6,211.76. The Court
the claims of
claimant Bankers Pocahontas
Coal Limited Partnership for repairs to its bridge and attorney
costs expended in the
declaratory judgment suit against the respondent.
Award of $6,211.76 to W. B. Swope.