Paletta v. Phillips (Signed Opinion)
Annotate this Case
The case involves Tony Paletta, the petitioner, and Nelson Phillips, III, Nathan Phillips, Robert Nelson Phillips, II, and the West Virginia Department of Transportation, Division of Highways, the respondents. The petitioner and the Phillips respondents own adjacent land in Harrison County, West Virginia. A road, Harrison County Route 36/5 (CR 36/5), crosses the Phillips respondents' property and provides access to the petitioner's property. The road was never improved by the West Virginia Division of Highways (WVDOH) but appears on WVDOH maps for Harrison County beginning in 1937. After the Phillips respondents impeded the petitioner's access by way of CR 36/5, the petitioner brought suit in circuit court seeking an order requiring the Phillips respondents to remove the gates/fences and allow him access to his property, using CR 36/5.
The Circuit Court of Harrison County granted summary judgment in favor of the Phillips respondents, finding that CR 36/5 was not a public road. The court based its decision on several factors, including the lack of specific description of the road, the WVDOH's admission that the road no longer exists in an identifiable form, and the lack of plans by the WVDOH to make any improvements to CR 36/5.
The Supreme Court of Appeals of West Virginia reversed the lower court's decision, finding that the circuit court erred in concluding that CR 36/5 is not a public road and in granting summary judgment in favor of the Phillips respondents. The court held that the burden of showing that a public road was abandoned falls on the party asserting the abandonment. In this case, the Phillips respondents failed to demonstrate that CR 36/5 was discontinued or abandoned. The court concluded that CR 36/5 was properly made a part of the state road system in 1933 and was never properly abandoned, discontinued, vacated, or closed by the WVDOH in the manner prescribed by West Virginia law. Therefore, the case was remanded for further proceedings consistent with the court's opinion.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.