Petition for Writ of Certiorari — Riffe v. Brown

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_ SEP 22 1992 |

OFFICE OF THE cisra |

IN THE nee

Supreme Court of the United States

OCTOBER TERM, 1992

MARY A. RIFFE,

Petitioner,

V,

ROSSLYN C. BROWN and JAMES V. BROWN,

Respondents.

Petition for Writ of Certiorari to the

Supreme Court of Appeals

of West Virginia

PETITION FOR WRIT OF CERTIORARI

DAVID 8S. SKEEN

411 “D” Street

Post Office Box 8520

South Charlestoa, WV 25303

(304) 744-8125

Counsel for Petitioner

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED FOR REVIEW

Does a state court of last resort by refusing a

for appeal in which said petition complains of

ial of due process by the tribunal of first instance,

} »

; } ley yar

Violate due process of law as guaranteed by the

ind Fourteenth Amendments to the Constitution

¥ ls Pa

nitead states

Does a State Court of last resort violate the Peti-

ititiAnsa on . — kee . .

Ss constitutional right to due process of law under

, ry. ~ 1 } ’ a 4 Dam ++ + ‘

he Fifth and Fourteenth Amendments to the Con-

tion of the United States by arbitrarily refusing a

n for appeal without grounds, when such refusal

o the mandate of Article 8 £4 of the Con-

) he ee | Ol Wes \ l’einla {

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ____

TABLE OF AUTHORITIES |...

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REASONS FOR GRANTING WRIT...

F

IT,

THE ARBITRARY REFUSAL BY THE WEST

VIRGINIA SUPREME COURT OF APPEALS

TO ALLOW THE PETITIONER’S APPEAL

OF AN UNCONSTITUTIONAL INFRINGE-

MENT OF ABSOLUTE PROPERTY RIGHTS

BY A LOWER COURT, WITHOUT DUE

PROCESS OF LAW, CONSTITUTES A DE-

NIAL OF DUE PROCESS IN AND OF IT-

RSET EST ise AO ec

THE REFUSAL OF THE WEST VIRGINIA

SUPREME COURT OF APPEALS TO GRANT

AN APPEAL WITHOUT CITING GROUNDS

FOR SUCH REFUSAL CONSTITUTES A

DENIAL OF DUE PROCESS IN VIOLATION

OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

Ss 5 Un ys GAR

LAsINULMUOEO ................... isleaaibaatestnebiins siniiaatbileadanssathesie,

APPENDIX

A.

B.

C.

Copy of Deed Granting Right of Aer fee

Order of Circuit Court of Kanawha County,

West Virginia... Ae See Nad eee

Order of West Virginia Supreme Court of Ap-

peals refusing to grant appeal ..........

. Refusal of Second Petition for an Appeal

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

Central Land Company v. Laidley, 159 U.S. 103

(1895) ee 16

Clark v. West Virginia Board of Regents, 166

W.Va. 702, 279 S.E. 2d 169 (1981)... 13

Hanshew v. Zickafoose, 313 S.E. 2d 427 (1984) 8

HMK Corp. v. County of Chesterfield, 616 F. Supp.

667 (1989) a seaeeeeee 14

Hoffman, et al. v. Smith, et al., 310 S.E. 2d 216

RIE peiccreenter cic cadsyGioonee Le er ee 7

In re Barto, 8 Bankr. 145 (1981) 13

Jenkins v. Johnson, W.Va. , 082 S.E. 2d

334 (1989) oe Fir 8

Lockwood v. Ohio River Railroad Company, et al.,

180 U.S. 637, 21 S.Ct. 920, 45 L.Ed. 710 (1900). 12

Lowe v. Guyan Eagle Coals, Inc., 273 S.E. 2d 91

(1980) . = RE AA 7

McDonald v. Board of Mississippi Levee Commis-

stoners, 646 F. Supp. 449 (1986) 11

Ochoa v. Hernandez v. Morales, 230 U.S. 139, 57

L.Ed. 1427, 33 S. Ct. 1083 (1913) ed 10

Semler v. Hartley, 399 S.E. 2d 54 (1990) .. ne x

Smith v. Hedrick, 382 S.F. 2d 588 (1989)

Statutes, Constitutions and Rule

28 U.S.C. § 1257 (c) 2

42 U.S.C. § 1983 2

U.S. CONST. amend. V 2,5, 8,17

U.S. CONST. amend. XIV, § 1 _. 2,5, 8,17

W. Va. Code § 55-13-1 . 5

W. Va. Code § 58-5-9 ped ee 7

W. Va. ConsT. art. IIT,$ 10... 2, 5, 8, 18, 14, 16

W. Va. ConsT. art. VIII, § 4 2,7, 15, 16

W. Va. R. Civ. P., Rule 57 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

Mary A. RIFFE,

Pe tit lone Fix

v.

ROSSLYN C. BROWN and JAMES VY. BROWN,

Responde nts.

Petition for Writ of Certiorari to the

Supreme Court of Appeals

of West Virginia

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The order entered in the Circuit Court of Kanawha

County, West Virginia, on October 25, 1991, is contained

in the appendix ect

The orders entered in the West Virginia Supreme Court

Appeals refusing to grant the appeal and refusing to

renew the petition for appeal are contained in the appen-

dix hereto.

JURISDICTION

Your petitioner brought suit in the Circuit Court of

A

Kanawha County, West Virginia, seeking a declaratory

judgment regarding an easement agreement affecting

contiguor IS px ince]

ls of real estate, with the easement being

located entirely on the servient estate. From an order

entered by the Cireuit Court of Kanawha County,

2

Virginia, on October 25, 1991, your Petitioner petitioned

the West Virginia Supreme Court of Appeals for an

appeal of said Order. The West Virginia Supreme Court

of Appeals by order entered June 24, 1992. refused said

petition without citing any grounds whatsoever for such

refusal.

Petitioner invokes the jurisdiction of this Court under

42 U.S.C. § 1983 and 28 U.S.C. § 1257(3) for the denial

of her Constitutional rights under the color of law.

LAW INVOLVED

The law involved is a denial of property rights in vio-

lation of the Fifth Amendment to the United States Con-

stitution, Fourteenth Amendment to the United States

Constitution, Article III Section 10 of the Constitution

of the State of West Virginia, and Article VIII Section

4 of the Constitution of the State of West Virginia.

STATEMENT OF THE CASE

On July 8, 1932, W.A. Sparks and Ella Sparks did

grant and convey by express grant, an easement right-

of-way to one Geraldine R. Green. This grant of ease-

ment over the property then belonging to W.A. Sparks

and Ella Sparks was for the sole and exclusive purpose

of permitting Geraldine Green to access a garage located

at the back of her property to which she had absolutely

no means of access except over, on and across the prop-

erty of W.A. and Ella Sparks.

The express grant of easement was clear. unambiguous

and precise in its purpose, intent, and scope, and narrowly

defined the rights and privileges being conveyed by said

easeme™. “reement to the owner of the dominant estate,

Geraldivse +*reen. The instrument conveying and, thus,

creating the instant easement was both definite and cer-

tain in its terms, scope of privilege, and intent. The

express easement agreement as incorporated into the

CO

3

deeds of both aforementioned parties is hereby appended

to this petition to demonstrate the restrictiveness of its

privilege granted and lack of ambiguity of the instru-

ment itself creating the easement right of way at issue

and the limited purpose for which it was created,

For approximately Forty-four (44) years, from July 8,

1932, the date of execution of the instrument creating

this easement, to April, 1976, all parties inclusive of the

successors in title to the original parties to this agree-

ment, maintained the exclusive use of the easement for

the sole purpose of ingress, egress and regress to and

from said garage building and for no other purpose or

uses whatsoever.

In April, 1976, Rosslyn C. Brown and James V. Brown

acquired title to the land constituting the dominant estate

to this easement agreement. Whereupon, Rosslyn Brown

and James Brown immediately asserted joint ownership

of the land comprising said easement right-of-way solely

by virtue of the grant of easement. It must be clearly

understood that the entire right-of-way was wholly situ-

ated on the property then and now owned by Mary Riffe,

successor in title to the servient estate of W.A. and

Ella Sparks.

Commencing with the occupancy of the dominant estate

by Rosslyn C. Brown and James V. Brown, there began

an immediate, unlimited occupancy and use of the land

itself by the defendants/appellees upon which the ease-

ment was situated. The defendants began an unlimited

usage of said land over which the easement was granted

for any purpose, residential or commercial, which they

deemed necessary to their own needs, and all to the detri-

ment of the appellant herein. Thus, the owners of the

easement, in April, 1976, exceeded the rights of usage

granted in the easement right of way on the land com-

prising this easement and dealt with the land upon which

the easement exists in an unrestricted manner as if they

4

were the owners of the land itself. Rosslyn C. Brown

and James V. Brown, her spouse, sarap broadened

their usage to encompass any and all uses they deemed

necessary, did not confine their usage to the particular

purposes as set forth in the easement right of way and

conducted themselves in total disregard of the eXpress

grant and the limits it inherently imposed upon them

as the dominant estate. Such abuse of privilege included.

but was not limited to. utilizing the land over which

the easement ran for the parking of their vehicles. load-

ing and unloading of trucks and automobiles. access to

all areas of the land comprising the dominant estate, and

fraudulently obtaining municipal permits for altering

the single family residence on the dominant estate to a

multi-family residence, with the easement being repre-

sented by the defendants as an unrestricted access to

off-street parking for tenants on a concrete pad con-

structed by them. All such uses were freely engaged in

despite protestation by Mary Riffe, the owner of the land

and Petitioner in this case.

On July 27, 1977, Mary Riffe sought injunctive relief

in the Circuit Court of Kanawha County, West Virginia,

to restrict the usage of her land to that permitted by the

express grant of the easement. Judge Patrick Casey of

the Circuit Court of Kanawha Cou ty, West Virginia,

Was the presiding judge in this matter at that time.

Injunctive relief was, upon hearing, at first granted by

Judge Patrick Casey in said hearing on the above date,

but later Judge Casey refused to sign the Order granting

a preliminary injunction and indicated a predisposition

to enlarging and expanding the privileges conveyed by

the express grant of easement despite its clear language

and obvious intent to the contrary. On September 6, 1977,

Judge Casey entered an Order denying the motion for

preliminary injunction.

In light of this action as taken by Judge Casey, and

Mrs. Riffe’s inability to sustain the financial burden im-

o

posed upon her in regard to the furtherance of her legal

remedies to protect her property rights, Mary Riffe re-

quested that this case be maintained as open but inactive

on the docket of the Circuit Court of Kanawha County,

West Virginia which request was complied with by the

Circuit Court. Throughout the subsequent time, Rosslyn

C. Brown and James V. Brown aggressively and unlaw-

fully continued their possession and use of the land on

Which the easement existed and continued their unre-

stricted usage in the face of the owner’s clear and open

objections to the excessive and impermissible use of the

land in question. Furthermore, at no time did Mr. or

Mrs. Brown compensate the lawful owner of the land,

Mary Riffe, for this greatly expanded usage of the prop-

erty, nor did they contri! ute to any upkeep or repair for

the damages this increased and burdensume usage Was

directly causing to the land in question and property of

the plaintiff. By such actions as these, Mary Riffe was

deprived, not only of her inherent property rights, but

of the very enjoyment of her property.

Therefore, on July 27, 1990, Mary Riffe again pursued

legal remedy to this unlawful taking of her property by

filing a declaratory judgment action to define the rights

and privileges conveyed by the express grant of easement

pursuant to the West Virginia Code § 55-13-1 and Rule

57 of the West Virginia Rules of Civil Procedure. It

was her belief that such definitive action would restrain

the parties of the dominant estate from their continued

abuse of their privilege and end the unauthorized and

impermissible use of her property. Said motion for de-

claratory judgment was assigned to Judge John Hey of

the Cireuit Court of Kanawha County, West Virginia,

for adjudication. Whereupon the defendants sought out

Judge Patrick Casey and prevailed upon him to seek

reassignment of this case back into his court. Upon Judge

Casey’s request for reassignment of this case to his

docket, it was so accomplished and Judge Casey then ren-

6

dered his decision, and pursuant to the submission by both

parties of memorandums of law, issued an order defining

the rights and privileges conveyed by this express grant

of easement on October 25, 1991. Judge Casey’s order is

appended to this petition. The latitude granted to the

dominant estate to use the realty of the servient estate is

evident in the order hereto appended.

Without any case law or existing precedent, in support

of an expansion of usage, Judge Casey proceeded to grant

his judicial approval by means of his order of October 25,

1991, to the unlawful and continuing use of the plain-

tiff’s property by the defendants. By abuse of judicial

discretion alone he incorporated new language not found

in the original instrument and, further, arbitrarily and

capriciously assumed an intent and purpose not supported

by evidence or past usage. Judge Casey dismissed all lim-

itations imposed by the actual written instrument and

ordered the continued use of the plaintiff's land based

solely on the needs of the defendants. Furthermore, Judge

Casey made no provision for, nor consideration of, the

damages wrought by this expanded usage and, thus, de-

prived the plaintiff of her property all to her detriment

and damage, without any just compensation of any kind

being awarded in the aforesaid Order.

With his order, Judge Casey violated Mary Riffe’s in-

alienable rights, and the protection of said rights, as

guaranteed by both the Fifth and Fourteenth Amendments

of the Constitution of the United States and Article III

10 of the Constitution of the State of West Virginia.

His order by the very arbitrary nature in which it was

conceived and issued, and its gross disregard for the

established limitations in law pertaining to and

intrinsic in easements and the rights and privileges they

convey, deprived the plaintiff petitioner of her property

wel]

without due process of law.

Thereupon, in February, 1992, Mary Riffe sought re-

view of the order of October 25, 1991, and redress of the

Wrong it imposed by infringement of her constitutionally

guaranteed rights, and petitioned the West Virginia Su-

preme Court of Appeals for review and reversal of the

judgment entered in the Cireuit Court of Kanawha

County, West Virginia. Said appeal was properly and

timely filed pursuant to the Rules of Appellate Procedure

as promulgated by the West Virginia Supreme Court of

~

Appeals.

On June 24, 1992, at a regular session of the Supreme

Court of Appeals in Charleston. West Virginia, the Su-

preme Court made and entered an order refusing the

petition for appeal, citing no grounds whatsoever for

such refusal. The refusal of the petition for appeal with-

out grounds being cited is, by the West Virginia Code

s 58-5-9, and the West Virginia Supreme Court of Ap-

peals interpretation and application of the aforementioned

code, not a decision on the merits, but is no more than a

refusal to docket the petition for appeal, as such rejection

Was not clearly refused on the cited ground that the

judgment complained of was “plainly right and that no

other petition would be entertained by the Court”. Smith

v. Hedrick, 382 S.BE. 2d 588 (W.Va. 1989). Further,

the Supreme Court upon failure to docket said appeal for

hearing and review precluded, by this action, any further

consideration of the merits of the issues presented in this

appeal, and by said refusal to accept the appeal further

perpetuated the denial of due process of law originated

in the lower court or tribunal of first instance.

Additionally, the Supreme Court of Appeals of West

Virginia acted in total disregard of Article VIII § 4 of

its own State Constitution in arbitrarily refusing this

petition and failing to set forth the grounds for such

refusal after a careful review of the record and issues

contained therein, said issues having been routinely and

consistently accepted for hearing in many recent appeals

to this same court of appeals. Lowe », Guyan Eagle

Coals, Inc., 273 S.E. 24 91 (W.Va. 1980), Hoffman, et al.

)

v. Smith, et al., 310 S.E. 2d 216 (W.Va. 1983), Hanshew

v. Zickafoose, 313 S.E. 2d 427 (W.Va. 1984), Jenkins v.

Johnson, —— W.Va. ——, 382 S.E. 2d 334 (W.Va.

1989), Semler v. Hartley, 399 S.E. 2d 54 (W.Va. 1990).

On July 20, 1992, your petitioner, upon motion to the

West Virginia Supreme Court of Appeals for good cause,

sought an enlargement of time in order to renew her

petition, as permitted by the Rules of Appellate Proce-

dure. The Supreme Court of Appeals did not deny this

motion for extension of time in which to appeal this judg-

ment, but simply again refused her petition for appeal as

an out-of-time second petition. Thus, the Court of last

resort arbitrarily barred any further remedy or redress

of the infringement of the petitioner’s constitutional

rights as guaranteed under the Fifth and Fourteenth

Amendments to the United States Constitution and Arti-

cle III $10 of the West Virginia State Constitution.

As of the date of the filing of this appeal to the United

States Supreme Court, the instant judgment of October

25, 1991, stands intact as rendered by Judge Casey, and

exists as clear precedent that upon an arbitrary and

abusive exercise of judicial discretion, an express grant

of easement can be altered and expanded to allow and

encourage full dominion over the land upon which an

easement is granted, to the possessor of the easement.

That as such, the dominant estate can by an abuse of

judicial discretion alone take full possession of another’s

land and use said realty for whatever purpose without

due process of law, which has clearly and always stood as

requisite to such a taking of property.

9

REASONS FOR GRANTING THE WRIT

I. THE ARBITRARY REFUSAL BY THE WEST VIR-

GINIA SUPREME COURT OF APPEALS TO AC-

CEPT FOR REVIEW AN APPEAL OF AN UNCON-

STITUTIONAL INFRINGEMENT OF ABSOLUTE

PROPERTY RIGHTS BY A LOWER COURT, WITH-

OUT DUE PROCESS OF LAW, CONSTITUTES A

DENIAL OF DUE PROCESS IN AND OF ITSELF

BY THE COURT OF LAST RESORT.

A most basic and sacred right to each citizen is that of

the right to acquire, hold, enjoy and dispose of one’s prop-

erty. As a most fundamental protection of that right and

other rights as guaranteed by the Constitution of the

United States, is the concept and precept of due process

of law. The very phraseology of these words denotes a

process that insures and promotes the fair and orderly

administration of the laws of the land. This administra-

tion of the law is not an academic process but a process

built upon sound principles and reasonable application of

those principles for the common good. The due process

clauses of both the state and federal constitutions afford

an even-handed protection against arbitrary, capricious

and unreasonable application of laws without respect for

uniformity and fairness.

The most valued effect of adherence to the concept and

practice of due process of law in the administration of

justice is the reliability in following a prescribed mode

of dispensation of justice to achieve a reasonably fair

and just end to the equal protection of all parties under

the law. Without an adherence to the spirit and intent

of this concept of due process, there can be no reliance

or reason to rely on a system of laws by which we are

governed in our present society of many differing issues

and conflicts.

In this case, there has been a very clear and grave

infringement of a constitutionally guaranteed right,

namely, the right to own and enjoy private property.

10

This case embodies a failure of state law to rely on due

process to circumvent this infringement of that right

and protect the abused right from being arbitrarily

abridged and attacked without remedy or recourse. The

petitioner, Mary Riffe, has, in seeking protection under

the due process of law, attempted to protect and preserve

her right as the owner of the realty in question and

maintain possession of this property in a manner per-

mitted her as is her guaranteed right under the Con-

stitutions of both her country and her state. However, in

seeking legal redress of the wrong committed against her

by the unlawful taking of her property by another indi-

vidual, the very system which is to protect her right has

been the vehicle by which this infringement was accom-

plished. The curtailing and deprivation of her right to

do with and enjoy her property as is strictly permitted

and protected by virtue of her ownership in fee simple

has been encouraged and supported by an abuse of judi-

cial discretion.

The effect of the guaranty of due process of law is to

inhibit the taking of one person’s property and giving it

to another, in complete derogation of settled and estab-

lished modes of procedure and without fair and reason-

able opportunity for a hearing of the issues. Ochoa y.

Hernandez v. Morales, 230 U.S. 139, 57 L. Ed. 1427, 33

S. Ct. 1033.

In entering the Order of October 25, 1991, in the Cir-

cuit Court of Kanawha County, West Virginia, there was

such a grave and unprecedented departure from existing

state and federal law regarding easements, that the de-

parture belies simply addressing the Court’s action as

simple judicial error. The presiding judge, solely relying |

on an abuse of his judicial discretion, arbitrarily added

language not found in the original instrument of agree-

ment and in doing so liberalized and expanded the limits

and privileges conveyed by that instrument to benefit of

the dominant estate. Without benefit or support for his

decision in any existing law or case precedent, the Court,

11

under color of judicial authority, undertook a reformation

of a written easement agreement to permit the unconsti-

tutional taking of a property from one individual to give

it to another. This was an arbitrary and capricious act

by the Circuit Court which violates all aspects of due

process of law and equal protection under the law. It is

violative of the very foundation of the right to property

as promised by the Fourteenth Amendment to the United

States Constitution, and as heretofore protected by this

Court.

In McDonald v. Board of Mississippi Levee Commis-

sioners, 646 F. Supp. 449 (N.D. Miss. 1986), it was

firmly held, as it always has been held, that an easement

is a right that one has to use another’s land for a spe-

cifically defined purpose that does not infringe, nor can

be deemed as inconsistent, with the other’s ownership.

Further, if the easement is created by instrument and

that instrument is definite and clear, the instrument must

be taken at face value. This is consistent with both fed-

eral and West Virginia State law. More importantly, all

judicial decisions and actions in the State of West Vir-

ginia have been predicated on this principle and no ex-

ception to this finding exists except for the Order of

Judge Patrick Casey now standing as precedent.

The principle in law that the granting of an easement

is not an acceding of the rights of ownership of the land

itself is well-established law. Yet, by mere arbitrary

abuse of judicial discretion, this established principle of

law was ignored and struck down, and a written instru-

ment, duly executed and recorded, was reformed, altered

and changed to unfairly and unlawfully remove property

rights from one person to give them to another. The

United States Supreme Court has in its rulings never

condoned nor permitted such action against any individ-

ual, even in instances where the need of the party or

entity requesting expanded privilege was of a far more

substantial basis than in the instant matter. More to the

point, this taking of private property for another person’s

12

private uses has never been condoned without strict ad-

herence to due process of law as a requisite to the taking

of property. While the petitioner sought a clarification

and defining of the privilege conveyed in her easement

agreement from the Circuit Court, she has never been

permitted to be heard against such taking of her property

as occurred by order of that Court in any tribunal. More-

over, she has never been given any consideration for the

loss she sustained by this taking of her property. In

Lockwood v. Ohio River Railroad Company, et al., 103

F. 243 the Fourth Circuit Court of Appeals held that a

written grant of easement would be strictly followed in

defining the rights and privileges conveyed and that no

greater estate would be conveyed than intended by the

instrument. This has been law both in the federal and

State jurisdictions and with the exception of the Order

herein appealed now standing in the Circuit Court of

Kanawha County, West Virginia, has been uniformly

applied to all citizens except your petitioner.

In summary, there exists a substantial Federal question

in this case by virtue of the action taken by the Courts

of West Virginia in permitting an abusive reformation

of the easement agreement, thus constituting a taking of

property of the petitioner without just cause or compen-

sation for such reformation. Further, such action is con-

trary to the Constitution of the United States and dimin-

ishes all previous law regarding easements and the effect

of an easement upon ownership rights of the grantor.

The Circuit Court of Kanawha County, West Virginia,

has ruled that a legal and binding written agreement

granting an easement right-of-way is subject to arbitrary

change and alteration without good cause or consideration

for due process as demanded by Constitutional law. In

removing property from one person to give it to another,

an abuse of judicial discretion will now suffice in accom-

plishing this end which is repugnant to the mandates of

constitutional law both within a state and federally.

13

Upon appeal of this matter to the West Virginia Su-

preme Court, it was well-established law that due process

must be given before any property deprivation can occur

unless a compelling public policy dictates otherwise.

Clarke v. West Virginia Board of Regent, 166 W.Va. 702,

279 S.E. 2d 169 (1981). In appeal to the court of last

resort in this instance, it was clearly evident that the

order complained of was an extraordinary deviation from

accepted law and practice regarding property rights and

that as such, it could greatly effect and touch upon the

guaranteed right of due process before any such taking

of any citizen’s property occurs. The guaranty of due

process of law is one of the most important to be found

in the federal constitution. It is certainly central in the

principle of ordered justice and is essential to the basic

concept of private property. Jn re Barto, 8 Bankr. 145

(Bankr. E.D. Va. 1981). The gravity of the foundation

of the case and the issues to be considered certainly pro-

vided the Supreme Court of Appeals of West Virginia

with notice that a possible deprivation of constitutionally

protected rights was at issue and that property may have

been taken without due process of law. Therefore, the

Court’s refusal to hear this petition for appeal without

grounds was in itself not only a perpetuation of the denial

of due process, but a denial of due process itself. Mary

Riffe, the Petitioner, had no hearing applying any prece-

dent whatsoever regarding the loss of her property. No

court or tribunal considered just compensation for the

expanded privilege granted the defendants by Judge

Casey’s Order and no consideration was given to the just

cause for such taking of property.

Article III, Section 10, of the West Virginia Constitu-

tion, which is the due process clause, mandates that when-

ever property is taken, consideration must be given to the

just cause for such taking and just compensation for any

loss of property which occurs. Mary Riffe was deprived

of a cognizable property interest by the capricious, arbi-

trary action of the lower court. Therefore, it was in-

14

cumbent upon the West Virginia Supreme Court of Ap-

peals to determine if, in fact, the Fifth Amendment had

been violated by inquiring into three necessary areas:

(1) whether Judge Casey’s order constituted a taking

(2) if a taking had occurred, whether it was for a

public or private use and, (3) if the taking was for a

permissible purpose, if just compensation was paid. Even

more importantly, the West Virginia Supreme Court ex-

ceeded its discretionary authority by ignoring the in-

fringement of the rights of Mary Riffe in violation of

Article III, Section 10 of the West Virginia State Consti-

tution and the Fifth and Fourteenth Amendments to the

Constitution of the United States.

The right of appeal is not an inherent right in the

United States Constitution nor in the West Virginia

State Constitution. However, Article III § 10 in the West

Virginia Constitution mandates that whenever property

is taken, serious and careful procedures must be adhered

to prior to such taking. The West Virginia Supreme

Court of Appeals abused its discretion by ignoring that

clear mandate and their failure to act to insure it was

followed by their judicial silence on the appeal was a

denial of due process to Mary Riffe. The test of the

validity of this assumption is that your petitioner has

lost a significant and cognizable property interest to

another individual and no hearing before any tribunal

has considered the just cause for such loss, nor the com-

pensation to be paid if any. HMK Corp. v. County of

Chesterfield, 616 F. Supp. 667 (E.D. Va. 1985).

Therefore, Mary Riffe has come before the United

States Supreme Court to seek due process of law as guar-

anteed by the United States Constitution. The court of

last resort in her state has stood silent on the issues

intrinsic to the taking of her property, and it is incumbent

on her to seek a post-deprivation remedy through the

only court left to her. It is beyond doubt that property

rights are protected by state law. This petitioner comes

15

before the United States Supreme Court directly as a

result of the petitioner being subjected to a deprivation

of property under color of state law without remedy or

redress for such violation of her rights within her state.

This writ has not been submitted to this Court to com-

plain of an unfavorable outcome by simple judicial error,

but brings before this Court an intrinsically important

issue that transcends the academic or episodic. Mary

Riffe has been denied a right by a Circuit Court of West

Virginia in violation of her rights as guaranteed by the

United States Constitution. Further, the West Virginia

Supreme Court of Appeals has stood silent on this issue

and refused hearing to the petitioner. Petitioner states

that this refusal of her appeal, given the issues and cir-

cumstances complained of, is a denial of due process of

law. By refusal to hear and weigh the actions of a lower

court in this instant matter, the West Virginia Supreme

Court of Appeals has denied to this petitioner the only

means to redress and remedy an unconstitutional taking

of her property, and, thus, has denied her due process of

law.

Il. THE WEST VIRGINIA SUPREME COURT OF AP-

PEALS HAS REFUSED TO ACCEPT A PETITION

FOR APPEAL IN THIS MATTER IN VIOLATION

OF THE MANDATES OF ARTICLE VIII $4 OF

THE WEST VIRGINIA STATE CONSTITUTION.

THIS ARBITRARY ABUSE OF JUDICIAL DISCRE-

TION IS A DENIAL OF DUE PROCESS OF LAW.

Article VIII $4 of the West Virginia Constitution

states as follows:

“A writ of error, supersedens or appeal shall be

allowed by the Supreme Court of Appeals, or a justice

thereof, only upon a petition assigning error in the

judgment or proceedings of a court and then only

after the court, or a justice thereof, shall have exam-

ined and considered the record and is satisfied that

there is probably error in the record, or that it pre-

sents a point proper for consideration of the Court

16

When a judgment or order of another court is

reversed, modified or affirmed by the Court, every

point fairly arising upon the record shall be consid-

ered and decided; the reasons therefore shall be con-

cisely stated in writing and preserved with the

,

record...’

While the above article does not require the supreme

court to accept and hear every petition for appeal, it

clearly mandates that they carefully review every peti-

tion for appeal before accepting or denying it for review

and record their findings. The Supreme Court of Appeals

has a statutory duty in reviewing the judgment of a lower

court to fully consider every point fairly arising upon the

record and record in some fashion their opinion.

To arbitrarily or capriciously deny a petition for appeal

without grounds or statement as to its merits in the

instant matter, is a denial of due process of law. If the

West Virginia Supreme Court of Appeals was of the

opinion that the instant matter was not found to have

merit or sufficient grounds for their review, this finding

should have been set forth as mandated by Article VIII]

$< 4 of the West Virginia Constitution.

However, the failure to cite grounds and then to sum-

marily refuse the petition for appeal, particularly subse-

quent to the denial of due process by the lower court, is

in itself a denial of due process of law. This petitioner

was denied, without reason, a review of the issues com-

plained of in her petition for appeal and this was an

arbitrary abuse of discretion in light of Article III § 10

and Article VIII § 4 of the West Virginia State Constitu-

tion.

CONCLUSION

“When the parties have been fully heard in the regular

course of judicial proceedings, an erroneous decision of a

state court does not deprive the unsuccessful party of his

property without due process of law, within the Four-

teenth Amendment to the Constitution of the United

States”. Central Land Company v. Laidley, 159 U.S. 108.

17

Petitioner states that she has not been fully heard in

the course of judicial proceedings. Further, she has been

denied property by an arbitrary and excessive abuse of

judicial discretion by a lower court in West Virginia, and

further by the West Virginia Supreme Court of Appeals

which has arbitrarily refused to hear this matter with-

out grounds or comment in violation of the State Constitu-

tion. Petitioner submits that such practice and procedure

as evidenced in the conduct of the West Virginia Supreme

Court of Appeals, violates due process of law and equally

violates her rights as guaranteed by the Fifth and Four-

teenth Amendments to the Constitution of the United

States, all amounting to an unlawful and impermissible

taking of her property without due process of law.

The Petitioner respectfully prays that her petition for

certiorari be granted. This petition presents the only

opportunity for the petitioner to seek review of her Con-

stitutional right not to be deprived of her property with-

out due process of law as guaranteed by the Fifth and

Fourteenth Amendments to the United States Constitu-

tion. Your petitioner prays that this court deem that the

actions of the West Virginia Supreme Court of Appeals

constitute a denial fo due process and that the matter be

remanded to the West Virginia Supreme Court of Ap-

peals for appropriate disposition, as mandated by both the

United States Constitution and the Constitution of the

State of West Virginia.

Respectfully submitted,

DAVID S. SKEEN

411 “D” Street

Post Office Box 8520

South Charleston, WV 25303

(304) 744-8125

Counsel for Petitioner

Dated: September 22, 1992

APPENDICES

la

APPENDIX A

W.A. SPARKS AND ELLA SPARKS

TO

GERALDINE R. GREEN

#2015 (EW)

Right of Way Driveway Agrt.

This Deed, made this 8th day of July, 1932, between

W.A. Sparks and Ella Sparks, his wife, parties of the

first part, of the City of Charleston, Kanawha County,

West Virginia, and Geraldine R. Green, widow, party of

the second part, of Canyon, Texas.

Whereas, the said parties of the first part are the

owners in fee simple of a certain lot or parcel of land

situate and fronting 40 feet by 124.5 feet on the southwest

or river side of Lee Street in the City of Charleston,

Kanawha County, West Virginia, being the same prop-

erty conveyed to the said W.A. Sparks by J.L. Davis and

Mary M. Davis, his wife, by deed bearing date the 5th

of November, 1913, recorded in the office of the Clerk of

the County Court of Kanawha County, West Vi irginia in

deed book No. 141, at page 150, reference to which deed

is hereby made for a more particular description of said

lot or parcel of land, and

Whereas, the said Geraldine R. Green, widow, is the

owner in fee simple of a certain other lot or parcel of

land situate and fronting 40 feet by approximately 124

feet on the southwest or river side of Lee Street in said

City of Charleston, being the same property conveyed to

the said Geraldine R. Green by American Audit Company,

a corporation, by deed bearing date the 8th day of Janu-

ary, 1926, recorded in said Clerk’s Office in deed book

2a

No. 294, at page 466, reference to which deed is hereby

made for a more particular description of said lot or

parcel of land, which said lot adjoins the lot owned by

the said parties of the first part on the upper or easterly

side thereof, and

Whereas, the said parties of the first part and the said

party of the second part have heretofore constructed at

their joint expense a certain double garage building now

situate in the rear of said two lots, one-half thereof sit-

uate on the said lot owned by the parties of the first part

and one-half thereof situate on the lot owned by the party

of the second part, ingress and egress to said garage build-

ing being across, through, over and upon a certain drive-

Way approximately 8 feet in width, extending from the

curb line on the southwest side of said Lee Street to said

double garage upon the rear of said two lots, which said

driveway is situate wholly upon the lot belonging to the

said parties of the first part and has heretofore been

used jointly by the parties hereto, and

Whereas, the parties hereto mutually desire to provide

for the permanent continued joint use of said driveway

in the manner hereinafter provided.

Now, therefore, this Deed Witnesseth;

That for and in consideration of the sum of twelve

hundred dollars ($1200.00) eash in hand paid by the

said party of the second part to the said parties of the

first part and other good and valuable considerations, the

‘receipt of all of which is hereby expressly acknowledged,

the said parties of the first part do hereby grant and

convey unto the said party of the second part, her heirs,

executors, administrators and assigns forever, a perpet-

ual easement or right of way over, through, across and

upon said driveway as now located and used upon the

lot owned by the said parties of the first part, said drive-

way being approximately 8 feet in width and extending

back from the curb line on the southwest side of Lee

ne ee ee

3a

Street in front of said lot towards the Kanawha River

a distance of approximately 104.5 feet. more or less, for

the purpose of ingress, egress and regress to and from

said double garage building situate upon the properties

of the parties hereto, as aforesaid, with the right in said

party of the second part, her heirs, executors. adminis-

trators or assigns and the owners or occupiers for the

time being of the lot and the improvements situate thereon

now owned by the said party of the second part to freely

use said driveway at all times, in common with the said

parties of the first part, their heirs. executors, admin-

istrators or assigns and the owners and occupiers for the

time being of said lot and the improvements thereon

belonging to the said parties of the first part.

It is mutually covenanted, agreed and understood be-

tween the parties hereto that said driveway shall at all

times hereafter be maintained in proper repair and in

a condition suitable for the purposes for which the same

is intended, the expense of all necessary repairs to said

driveway to be shared equally between the said parties

hereto, their heirs, executors, administrators or assigns.

It is further mutually covenanted., agreed and under-

stood between the parties hereto that said driveway as

now located shall at all times hereafter remain open and

unobstructed for the full and free use of the same as a

joint driveway to the garage building now situate upon

the properties owned by the parties hereto, or to any

other buildings or garages which either of the parties

hereto may erect upon either of said lots.

Witness the following signatures and seals;

W.A. Sparks (SEAL)

Ella Sparks (SEAL)

(STAMPED $1.50)

4a

State of West Virginia,

County of Kanawha, to-wit;

I, Mae M. Childress, a Notary Public of the said County

of Kanawha, do certify that W.A. Sparks and Ella Sparks,

his wife, whose names are signed to the foregoing writ-

ing, bearing date the Sth day of July, 1932, have this day

acknowledged the same before me in my said County.

Given under my hand this 8th day of July, 19382.

Mae M. Childress, Notary Public,

Kanawha County, West Virginia.

My commission expires December 6, 1937.

State of Texas

County of Randall, to-wit;

I, Travis Shaw, a Notary Public of the said County of

Randall, State of Texas, do certify that Geraldine R.

Green, widow, whose name is signed to the foregoing writ-

ing, bearing date the 8th day of July, 1932 has this day

acknowledged the same before me in my said County.

Given under my hand this 15th day of July, 1932.

{ NOTARIAL SEAL}

Travis Shaw, Notary Public,

Randall County, Texas

My commission expires June 1, 1933.

West Va. Kanawha County Court Clerk’s Office Jul 19,

1932

This deed was this day presented to me in my office, and

thereupon together with the Certificate thereto annexed, is

admitted to record.

s [Tllegible]

Clerk

Kanawha County Court

ii a

5a

APPENDIX B

IN THE CIRCUIT COURT OF KANAWHA COUNTY

WEST VIRGINIA

Civil Action No. 90-C-2836

Mary A. RIFFE,

Plaintiff,

vs.

JAMES V. Brown,

Defendant.

ORDER

| Filed Oct. 25, 1991]

This day came the parties hereto by their respective

counsel and having previously submitted Memorandums

of Law in support of their respective positions in this

matter are now apprised of the Court’s ruling as follows:

WHEREAS, this Court, after careful review of the

Memorandum’s of Law submitted by the parties hereto

finds and orders as follows:

1. That the deed involved, and the right of way cre-

ated therein, which is the subject of this action does not

restrict the ingress and egress of the parties hereto insofar

as that ingress and egress is made in route to some other

structure or building which is located on the rear side of

the subject property of either party.

2. That the existing concrete pad which is located in

the rear portion of the defendant’s lot does not constitute

a building or structure as defined in the common law

definition of such, said definition being, a structure with

Od

a roof that a person may enter in one way, turn around,

and exit.

3. This Court further finds that there are currently

no buildings or structures on the property of either of

the parties hereto, excluding the dwelling houses located

thereon, that would tit the common law definition of a

building or structure, aside from the common wall garage

that is currently being used by the parties hereto.

4. This Court further finds that the deed and its

right of way, which are the subjects of this action does

not limit the defendant’s, or the plaintiff's right to, at

some time in the future, erect a structure that would

comply with the common law definition of a building or

structure, and would thereby be included in the definition

of ingress and egress as set forth in the above-referenced

deed.

5. This Court further finds that there is not contained

in the aforesaid deed any restrictions placed on the num-

ber of buildings or structures that the defendants can

place on their lot.

6. This Court further finds that as a result of the

interpretation of the deed and its right of way which is

the subject of this action, both parties hereto should have

free and unobstructed use of the common driveway.

7. This Court finds that any structure that may be

placed on the property of either of the parties hereto, pro-

vided such structure fits within the common law definition,

as set forth above, may use the common drive as a means

of ingress and egress to said structures.

8. The Court finds that an express easement has been

granted through a deed and the plaintiff's property is the

servient estate, with the defendant’s property being the

dominant estate, however, the use of said easement thus

far is not considered an unreasonable use and has not

placed an unreasonable burden on the servient estate of

the plaintiff.

ee

7a

9. That the right of way granted is approximately 8

feet in width and extending back from the curb line on

the southwest side of Lee Street in front of the property

of the plaintiff as the said curb line was located on July 8,

1932, a distance of approximately 104.5 feet, more or

less, shall be unobstructed by the plaintiffs and defend-

ants, their successors and assigns.

10. That the defendants hereto do have a right to use

the aforesaid right of Way for purposes of ingress and

egress to park vehicles on the concrete pad currently

located on the rear of their lot, but said right shall not

be exercised for an unreasonable or extended period of

time.

It is therefore ORDERED and ADJUDGED that the

right of way herein, which establishes the common drive-

way, does restrict either of the parties hereto from block-

ing the common driveway for an unreasonable amount of

time,

That neither of the parties hereto may exceed the use

for which the easement is granted and said use must be

confined to the terms and purposes of the grant, however

this use or limit thereon shall not be implied to limit the

rights of the parties hereto to erect additional structures

on the subject portions of their lot and shall not restrict

their right to use the common driveway as a means of

ingress and egress from said structures which are cur-

rently located on the subject premises of the parties or

may in the future be located thereon.

To all of which the plaintiff and the defendants ex-

cepts and objects.

ENTERED this 25th day of October, 1991,

s/ Patrick Casey

Judge

Date: 10-25-91

8a

Presented By

Counsel for Defendants:

72)

Robert N. Bland

ROBERT N. BLAND

BLAND & BLAND

1550 Kanawha Boulevard, E.

Charleston, WV 25311

Reviewed By

Counsel for Plaintiff:

s’ David S. Skeen

DAVID S. SKEEN

P.O. Box 8520

South Charleston, WV 25303

9a

APPENDIX C

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of Appeals

continued and held at Charleston, Kanawha County, on

the 24th day of June, 1992, the following order was made

and entered:

No. 920378

MARY A. RIFFE,

Plaintiff Below,

Petitioner

VS.

ROSSLYN C. BROWN and JAMES V. BROWN,

Defendants Below,

Respondents

On a former day, to-wit, February 28, 1992, came the

petitioner, Mary A. Riffe, by David S. Skeen, her attor-

ney, and presented to the Court her petition praying for

an appeal from a judgment of the Circuit Court of

Kanawha County, rendered on the 25th day of October,

1991, with the record therein accompanying the petition,

which being seen and inspected by the Court is hereby

refused. Chief Justice McHugh and Justice Brotherton

would grant.

A True Copy

Attest: s/ Gail G. Ramey

Clerk

Supreme Court of Appeals

10a

APPENDIX D

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of Appeals

continued and held at Charleston, Kanawha County, on

the 21st day of July, 1992, the following order was made

and entered:

»_~

No. 920378

MARY A, RIFFE,

Plaintiff Belo v,

Petitioner

VS,

ROSSLYN C. Brown and JAMES V. Brown.

Defendants Below.

Re spond nits

On a former day, to-wit, July 20, 1992, came the

petitioner, Mary A. Riffe. by David S. Skeen, her attor-

ney, and presented to the Court her second petition out-

of-time praying for an appeal from a judgment of. the

Circuit Court of Kanawha County, rendered on the 25th

day of October, 1991, which being seen and inspected by

the Court is hereby refused.

A True Copy

Attest: s Gail G. Ramey

Clerk

Supreme Court of Appeals