Kingmill Valley Public Service Dist. v. Riverview Estates Mobile Home Park, Inc.

• Decision Date: 27 October 1989
• Docket Number: No. 19018,19018
• Citation: 386 S.E.2d 483,182 W.Va. 116
• Parties: KINGMILL VALLEY PUBLIC SERVICE DISTRICT v. RIVERVIEW ESTATES MOBILE HOME PARK, INC., etc., and R.E.S., Inc.
• Court: West Virginia Supreme Court

Page 483

386 S.E.2d 483

182 W.Va. 116

KINGMILL VALLEY PUBLIC SERVICE DISTRICT v. RIVERVIEW ESTATES MOBILE HOME PARK, INC., etc., and R.E.S., Inc.

No. 19018.

Supreme Court of Appeals of

West Virginia.

Oct. 27, 1989.

Syllabus by the Court

1. All citizens hold property subject to the proper exercise of the police power for the common good. Even where such an exercise results in substantial diminution of property values, an owner has no right to compensation therefor.

2. Where a public service district, pursuant to W.Va.Code, 16-13A-9, requires a property owner, tenant, or occupant to connect onto its sewer system and to abandon a private sewer system located on the property, such person cannot recover from the public service district the value of such private system on the ground that such abandonment constitutes a taking of private property without just compensation within the meaning of Article III, Section 9 of the Constitution of West Virginia.

Glenn O. Schumacher, Mannington, for appellant.

Michael John Aloi, Manchin, Aloi & Carrick, Fairmont, for appellees.

MILLER, Justice.

We address the question of whether the owner of a private sewer system who has been compelled to join the sewer lines of a public service district (PSD) may claim that the disuse of its system constitutes a de facto taking and recover its value from the PSD.

This issue arose when the Kingmill Valley PSD sued Riverview Estates Mobile Home Park, Inc. (Riverview) and R.E.S., Inc. ¹ in the Circuit Court of Marion County to collect unpaid sewer fee charges. The PSD had previously ordered Riverview to abandon its private sewer system and to connect to the PSD's lines pursuant to W.Va.Code, 16-13A-9 (1981). ² Riverview filed a counterclaim asserting that the forced abandonment of its sewage treatment facility constituted an unlawful "taking" of private property in violation of Article III, Section 9 of the Constitution of West Virginia. ³ Riverview sought to recover the value of its system, which the parties stipulated to be worth $33,700.

The case was submitted to the circuit judge for decision on the pleadings, on certain factual stipulations, and on the briefs of the parties. The court rendered judgment in favor of the PSD for its unpaid sewer fees and concluded that Riverview was not entitled to any recovery on its counterclaim.

The appellant, Riverview, does not argue that the act creating the PSD is constitutionally infirm, apparently in acknowledgement of State ex rel. McMillion v. Stahl, 141 W.Va. 233, 89 S.E.2d 693 (1955), where we upheld the original enactment against a variety of constitutional challenges. ⁴ Nor does the appellant rely on cases that consider whether zoning or other regulations which substantially diminish the value of property by restricting the use to which it can be put effect a "taking" of property. ⁵

There are not many cases that are factually analogous to the case at bar, perhaps as a result of an early United States Supreme Court decision, Hutchinson v. City of Valdosta, 227 U.S. 303, 33 S.Ct. 290, 57 L.Ed. 520 (1913). Hutchinson, which is cited in most of the more recent cases, involved a statute which compelled the homeowner to attach to the city's sewer line and to install indoor "water closets" under penalty of criminal punishment. The homeowner complained that she had an adequate outdoor facility and that it would involve considerable expense to shift to the new scheme. Accordingly, she asserted that the mandatory connection to the city sewer constituted a taking of property without just compensation under the Fifth and Fourteenth Amendments to the United States Constitution. The Supreme Court, with commendable brevity, stated:

"It is the commonest exercise of the police power of a State or city to provide for a system of sewers and to compel property owners to connect therewith. And this duty may be enforced by criminal penalties. District of Columbia v. Brooke, 214 U.S. 138 [29 S.Ct. 560, 53 L.Ed. 941 (1909) ]. It may be that an arbitrary exercise of the power could be restrained, but it would have to be palpably so to justify a court in interfering with so salutary a power and one so necessary to the public health." 227 U.S. at 308, 33 S.Ct. at 292, 57 L.Ed. at 523.

See also Shrader v. Horton, 471 F.Supp. 1236 (W.D.Va.1979), aff'd 626 F.2d 1163 (4th Cir.1980); City of Sierra Vista v. Cochise Enterprises, Inc., 144 Ariz. 375, 697 P.2d 1125 (App.1984); State v. City of Miami, 157 Fla. 726, 27 So.2d 118 (1946); Renne v. Township of Waterford, 73 Mich.App. 685, 252 N.W.2d 842 (1977); Commonwealth ex rel. State Water Control Bd. v. County Utilities Corp., 223 Va. 534, 290 S.E.2d 867 (1982).

The Virginia Supreme Court in Water Control Bd., supra, offered the most common reason that citizens who have been forced to abandon their own private facilities to attach to public facilities cannot claim an unlawful appropriation: "All citizens hold property subject to the proper exercise of the police power for the common good.... Even where such an exercise results in substantial diminution of property values, an owner has no right to compensation therefor." 223 Va. at 542, 290 S.E.2d at 872. (Citations omitted).

We have reached a similar conclusion in cases involving various aspects of the exercise of police powers, as illustrated by Syllabus Point 7 of City of Welch v. Norfolk & Western Ry. Co., 104 W.Va. 660, 140 S.E. 839 (1927):

"Uncompensated obedience to a regulation enacted for the public safety, or which may hereafter be enacted, under the police power of the State, is not a taking or damaging without just compensation of private property, or private property affected with a public interest."

See also Trovato v. Town of Star City, 166 W.Va. 699, 276 S.E.2d 834 (1981); Singer v. Davenport, 164 W.Va. 665, 264 S.E.2d 637 (1980); Farley v. Graney, 146 W.Va. 22, 119 S.E.2d 833 (1960).

Riverview places considerable reliance on our recent case of Broadmoor/Timberline Apts. v. Public Serv. Comm'n, 180 W.Va. 387, 376 S.E.2d 593 (1988). There, the Public Service Commission ordered the City of Morgantown to acquire the private sewer lines of an apartment complex to extend sewer service to adjoining landowners. The apartment complex had already hooked its lines to the city sewer system, and the tenants were being directly billed by the city.

Riverview seizes on the fact that in Broadmoor the Public Service Commission had ordered the city to reimburse the apartment complex for the value of its sewer lines. ⁶ In the present case, however, the PSD is not acquiring Riverview's sewer system in order to extend service to adjoining landowners. Rather, it is utilizing its authority under W.Va.Code, 16-13A-9, to require Riverview to connect to its sewer facility. We do not find that Broadmoor controls in this case.

We, therefore, conclude that where a PSD, pursuant to W.Va.Code, 16-13A-9, requires a property owner, tenant, or occupant to connect onto its sewer system and to abandon a private sewer system located on the property, such person cannot recover from the PSD the value of such private system on the ground that such abandonment constitutes a taking of private property without just compensation within the meaning of Article III, Section 9 of the Constitution of West Virginia.

For the foregoing reasons, the judgment of the Circuit Court of Marion County is affirmed. ⁷

Affirmed.

1 R.E.S., Inc., currently owns the property and has a contract to sell it to Riverview. For convenience, we will use the term...