The Law

Highway Decision Makes Merchants Walk Unhappy by Ron Davis A property rights dispute between owners of neighboring shopping centers in West Virginia has reached an accord that pleases one owner—but, in typical fashion, certainly not the other. The shopping centers, located in Summersville, are Merchants Walk and a newer center developed by One-Gateway Associates. Their owners have battled for the past four years over an access road linking the One-Gateway center with a major highway, but that link would require Merchants Walk’s owner to relinquish a portion of its property. When One-Gateway Associates developed its property, it built, at its expense, a frontage road paralleling the major highway. But lacking was access at one end of the frontage road to allow customers an easy entry to and exit from the center. At that point, the West Virginia Division of Highways, after considerable study, condemned the portion of Merchants Walk property to allow construction of the access road link. After its completion, the Merchants Walk owner asked the courts to close the access road link and return the property to its “rightful owner.” A West Virginia circuit court ruled in favor of the Merchants Walk owner, finding that condemnation was improper because the Division of Highways sought the property for private rather than public use and thus the Division exceeded its authority. The One-Gateway center and the Division of Highways appealed that ruling, arguing that there had been no actual taking of property, nor had Merchants Walk’s owner suffered any economic damage from the condemnation. The West Virginia Supreme Court agreed with that argument, explaining, “The Division of Highways’ action in opening the access to the One-Gateway shopping center was for a public use. The access road clearly allows for more efficient and rapid movement of traffic…. Moreover, the evidence makes clear that the Division of Highways was not only acting within its authority, but was exercising a mandatory duty when it authorized the opening of the access into the One-Gateway shopping center.” (Retail Designs, Inc. v. West Virginia Division of Highways, 583 S.E.2d 449) Decision: May 2003 Published: August 2003