Charleston & S.S. Bridge Co. v. Comstock
| Decision Date | 26 March 1892 |
| Citation | 15 S.E. 69,36 W.Va. 263 |
| Parties | CHARLESTON & SOUTH SIDE BRIDGE Co. v. COMSTOCK et al. |
| Court | West Virginia Supreme Court |
Submitted February 11, 1892.
Syllabus by the Court.
1. Eminent domain. It is a general rule that he who seeks to exercise the extraordinary power of taking private property for public use must follow strictly the mode of procedure prescribed by law.
2. Yet where, upon a fair and reasonable construction of the inquisition and proceedings they are substantially responsive to the requirements of the statute, that is sufficient.
3. Chapter 42 of the Code of West Virginia (Ed. 1891) is devoted to the subject of "taking land without the owner's consent for purposes of public utility," prescribing in what cases and how private property may be taken or damaged for public use.
4. Therefore, we must look to that chapter, especially section 5, as determining the form of the application, and what it must contain. This chapter, and especially this section, in what it contains and in what may fairly arise by necessary implication, is exhaustive of such formal requirements unless otherwise expressly provided elsewhere.
5. It is not necessary for the applicant, in his petition for condemnation, to expressly state that he cannot agree with the owner on terms of purchase, as might be inferred from section 7 of chapter 52, when read alone.
6. The statute requires the owner of each parcel of real estate proposed to be taken to be made a party to the proceeding and to be served with notice of the application at the time and in the modes prescribed by such chapter, but it does not require service of such notice on an infant owner in person.
7. But if, at any time during the proceeding, it is suggested that there are infant owners who are in the county, and have attained the age of discretion, who ought to be personally notified, the court may so order.
8. The guardian of the infant owner, if there be one, must be notified, and as such has a right to appear and make any and all proper defense for and on behalf of his ward.
9. If such appearance and defense be not made by such guardian, then the court should appoint a guardian ad litem to defend his interest; neither being, in the strict, proper sense, a party to the suit.
10. Where there are adverse or conflicting claims to the real estate proposed to be taken, such claimants must be made parties to the proceeding.
11. But their conflicting claims should not be litigated until after the condemnation proceeding is ended.
12. Each owner of each parcel has a right to a separate trial and finding, though all may be embraced in one application.
13. But where there are two or more conflicting claims to the same parcel, and more than one demands a trial by jury, such trial must be at one and the same time before the jury.
14. The jury of 12, as well as the 5 commissioners, must be freeholders; the latter required by the statute, the former guarantied by the constitution.
15. And the order impaneling the jury should in some way show that the 12 jurors selected, impaneled, and sworn are freeholders either expressly or by necessary implication.
16. The parties have a right to have the premises viewed by the jury as well as by the commissioners, for the ascertainment of facts, before rendering their verdict.
17. The question whether two tracts are so connected physically or by use, for one common purpose or otherwise, as to constitute "one tract," within the meaning of the statute with reference to ascertainment of compensation for damage to the residue, is a question of fact for the jury, under the direction of the court as to the law.
18. Where there is evidence tending to show two tracts thus made one, within the meaning of the statute, the exclusion of evidence otherwise competent tending to show the amount of damages to the residue of the tract by reason of the taking of the part taken, for the purpose to which the part thus taken is to be appropriated, is error for which a new trial should be granted in an otherwise proper case.
19. A case in which these principles are applied; the application of two of them resulting in setting aside the verdict and awarding a new trial.
Error to circuit court, Kanawha county; F. A. GUTHRIE, Judge.
Condemnation proceedings by the Charleston & South Side Bridge Company against Mary E Comstock and others. From an order overruling defendants' motion to set aside the verdict, awarding them certain damages, they bring error. Reversed.
Geo. S. Couch, for plaintiffs in error.
Brown, Jackson & Knight, for defendant in error.
This is a proceeding to take private property for public use, which resulted in a condemnation, for the purpose of erecting a bridge, of part of lot No. 2, fronting on the south side of Kanawha 11 feet 3 inches, and extending thence to low water mark on the north bank of Kanawha river, at the city of Charleston, being a part of the "Kelly lot," the property of defendants; and the case is here on appeal allowed defendants.
The proceedings on the part of the bridge company were instituted and conducted according to chapter 42 of the Code, p. 309, (Ed. 1891.) Article 3, § 9, of the state constitution, (1872,) provides that After the five commissioners appointed under chapter 42 had reported the compensation for the "land proposed to be taken, and for damage to the residue of the tract," (section 14, c. 42,) the defendants Mary E. Comstock, the widow of Dr. L. L. Comstock, deceased, and Laura L. Comstock and others, his heirs at law, all infants, demanded a trial by jury. The jury was impaneled and the trial had, resulting on 12th December, 1890, in a verdict for $226.66 for the part taken, "lot No. 2 of Kelly lot," and the damages to the residue of the tract. The main point of dispute before the jury was, is the "Comstock home lot" on the north side of Kanawha street, (39 feet wide,) and the Kelly lot opposite, on the south side of the street and the north bank of the river, and running down to the water's edge, one tract, within the meaning of the statute, so that when a part of the Kelly lot was taken the home lot would be a part of the residue? On this question a great deal of evidence was submitted to the jury, tending, as we think, in a clearly appreciable degree, to show--for that is all that need be said now--that these two small parcels of land, although acquired at different times, had unbroken physical continuity, unless the easement of Kanawha street was such breaking, and that Dr. Comstock had in his lifetime devoted them to the one common purpose of a home for himself and his family, and during his lifetime put them to such use, and no part of either to any other use; that he had spent on the home lot $8,000 or $10,000 in remodeling and building anew the present dwelling house, with that purpose and common use in view; and that since his death the widow and heirs at law have continued to so use them, and for no other purpose whatever. The old buildings on the Kelly lot had been by Dr. Comstock torn down and removed. No new ones of any kind had been erected, and the river bank lot was not inclosed. We do not intend by this to intimate in any degree our opinion on this important point further that is stated above. What the jury of inquest saw for themselves when they went on the ground to make their view, as they are presumed to have done, other than can be ascertained from the certificate of evidence or facts proved, does not appear; but, that there may be no mistake as to what the evidence tended to prove, I here give it, as set out in the bill of exceptions, with the copies of the Comstock deeds left out, simply giving their dates,--there being in this case no question of conflicting claim:
To continue reading
Request your trial