Varner v. Martin.

• Citation: 21 W.Va. 534
• Court: Supreme Court of West Virginia
• Decision Date: 21 April 1883
• Parties: Varner v. Martin.

21 W.Va. 534

Varner

v.Martin.

Supreme Court of Appeals of West Virginia.

Submitted June 18, 1882

Decided April 21, 1883.

(Woods, Judge, Absent.)

1. Under our Constitution private property can not be taken with or without compensation for private use. (p. 548.)

2. Under our Constitution private property can be taken only for public use, and then only upon just compensation being paid or secured to be paid. (p. 551.)

3. Whether private property should be taken for the direct and immediate use of the public is a question for the Legislature to determine, and when so taken and used, the title of the property condemned is not transferred to a private individual or corporation, but remains in the public directly. The courts can not sit in judgment upon the public exigencies, which demand this exercise of the right of eminent domain; this being in such case solely a question for the Legislature, (p. 552.)

4. Hence a public highway under the direct control of the public, and kept in repair by it, and which no individual can obstruct without being liable to punishment, may if the Legislature by law so authorize, be established, though it leads only from a public road to the dwelling or farm of a single person. If the power conferred on a county court to open such public highway be general, no limitation of this power will be placed by the courts because of the degree of accommodation, which such public road may afford to the public at Large, That is a matter in such case, which addresses itself not to the authority, but to the discretion of the county court, (p. 553.)

5. But if the title and control of the property to he condemned is to pass into the hands and under the control of a private person or corporation, so that they are to have it as their private property, whether the public is to have such a use of or in such property as will justify this exercise of the power of eminent domain, is a question for the courts to decide. Though if a particular use of it be declared by the Legislature to be a public use, the courts will hold such use to be public unless it manifestly appears, that it is not a public use. In such cases, what is a public use, is a question for the courts to determine, (p. 555.)

6. In such a case, where the title and control of the property to be condemned is in private hands or in a corporation, three qualifications are necessary to impose upon it such a public useas will justify the taking of such private property without the consent of the owner. (p. 556.)

7 The use, which the public is to have of such property, must be fixed and definite. The general public must have a right to a certain definite use of the private property on terms and for charges fixed by law; and the owner of the property must be compelled by law to permit the general public to efijoy it. It will not suffice, that the general prosperity of the community is promoted by the taking of private property from the owner and transferring its title and control to another, or to a corporation to be used by such other or by such corporation as its private property uncontrolled by law as to its use. 8uelf supposed indirect advantage to the community is not in contemplation of law a public use. (p. 556.)

8. This use of the property, which in such case the public must have, must be a substantially beneficial use, which is obviously needful for the public to have, and which it could not do without except by suffering great loss or inconvenience, (p. 557.)

9. Ami when the title of property is thus transferred by condemnation to an individual or to a corporation, the necessity for such condemnation must be obvious. It must obviously appear from the location of the property proposed to be condemned, or from the character of the use, to which it is to be put, that the public could not without great difficulty obtain the use of this land or of other land, which would answer the same general purpose, unless it was condemned. And in such case, the courts will judge of the necessity for confirming such condemnation, (p. 558.)

10. A road must be deemed to be a private road, when its control is not under a public officer, and the public is not bound to work it or keep it in order, and where an individual might obstruct its use without being guilty of any public offense, (p. 560.)

11. The Legislature can not authorize the condemnation of land to establish such private road, even though the general public welfare of the community might be promoted by the forcible opening of such private roads. On the principles above laid down the public have no such direct and tangible use of such roads, as would justify the courts in regarding it as a public use, even though the public might have a right to use such private road, while it was permitted to be kept open, or while the person for whose use it was opened chose to keep it in repair, (p. 561.)

12. Section 44 of chapter 194 of the Acts of 1872-73, which is taken from sec. 38 of ch. 43 of the Code of West Virginia authorizes the condemnation of lands to establish such private roads, and it is therefore unconstitutional, null and void. (p. 564.)

Writ of error and supersedeas to a judgment of the circuit court of the county of Harrison, rendered on the 6th day of June, 1881, dismissing a supersedeas to a judgment of the county court of said county in an action wherein A. J. Varner was plaintiff, and Lehi Martin was defendant, allowed upon the petition of said Varner.

Hon. A. B. Fleming, judge of the second judicial circuit, rendered the judgment complained of.

Gren, Judge, furnishes the following statement of the case:

Lehi Martin filed his petition in the county court of Harrison county stating, that he owned a valuable tract of eightynine acres on the right hand fork of Jacob's run, to which he had no access by road public or private rendering it thus almost valueless to him; that a road about a quarter of a mile in length could be made to it, connecting it with a public road at a point near A. J. Varner's residence; that such proposed road would pass only through the lands of Varner and one John C. Isenhart. He asks, that they may be made parties defendant to the petition; that this road be opened, and that it may be a private road with gates where necessary, and that the court will appoint three commissioners, whom he names to view it and report the advantages and disadvantages of the same to the parties to this petition as well as to the public; and all the necessary facts in reference to it; and whether it would be necessary to take any yard,.garden or curtilage or any part thereof, or injure or destroy any building; the names of the land owners, whose property would be taken or injured; which of them require compensation, and the probable amount to which each of them may be entitled; and the petition asks, that these viewers return with their report a map of the route of the road.

These viewers were appointed by the court on June 14, 1880, the order says on motion of Lehi Martin, who were directed " to view and make a way for a private road, beginning at the public road at or near the dwelling-house of A. J. Varner on Jacob's run, and running through the lands of A. J. Varner and John C. Isenhart to a point on the land of Lehi Martin, and make report to the court on June 16, 1880, according to law." No reference is made in this order to the petition ot Martin. They made their report accordingly, and the court on June 17, 1880, ordered Varner and Isenhart to be notified to appear on the first day of the next term to show cause against the establishment of this road.

These viewers reported, that in making this road it would not be necessary to take any yard, garden or any part thereof of Varner's land, though it does pass near two small apple trees out of ten recently planted, nor would the road injure or destroy any building on his land or on the land of John C. Isenhart, nor does it take any yard, garden or orchard or any part thereof on his land; and these are the only land owners on the proposed road. The proposed width of the road is twelve feet; its length through Varner's land is eightyfive and one half poles, and through Isenhart's land its length is twenty-four and one half poles. Isenhart claimed no damages. Varner claimed one thousand dollars, but the viewers estimate his damages at twenty-five dollars. They state, that the road will not cut up his fields nor throw them into irregular shape, as it follows through his land a fence already built, and only two gates will be necessary on his land if gates are used. A diagram is returned with this report, which concludes: "This proposed road we deem absolutely necessary to enable Lehi Martin to obtain the use or benefit of the tract of land of about ninety acres to which it leads, hut this road will be of no advantage to the public except as it enables Mr. Martin to have ingress and egress to his land, and will thus be of great advantage to him."

On the 14th of August, 1880, after the return of this report this order was made by the court:

"This day came the applicant, Lehi Martin, by his attorney, and the contestant, A. J, Varner, in person, and the court having seen and inspected the report of the viewers, to which there were no exceptions, and having heard the evidence adduced, are of opinion that the road, as viewed and marked in the plat and report of said viewers filed in this cause, is necessary to enable the said Lehi Martin, the applicant, to reach and enjoy his own property, and that the grading of the same will not render any additional fencing necessary.

"And it further appearing to the court that John C. Isenhart, the other land owner through whose land said road passes, requires no compensation and does not object thereto, and that the sum of twenty-five dollars, the damages assessed by said viewers, is a just compensation to said Varner for the land proposed to be taken for said road, it is therefore ordered that a private road...