Baltimore & O. R. Co v. Heirs

• Decision Date: 21 November 1916
• Court: West Virginia Supreme Court
• Parties: BALTIMORE & O. R. CO. v. BONAFIELD'S HEIRS et al.

(79 W.Va. 287)

90 S.E. 868

BALTIMORE & O. R. CO.

v.BONAFIELD'S HEIRS et al.

Supreme Court of Appeals of West Virginia.

Nov. 21, 1916.

(Syllabus by the Court.)

In a condemnation proceeding by a railroad company to acquire land for trackage, commissioners were appointed to view the premises and report what would be a just compensation to the landowners for the land taken and damages to the residue. After their report was filed, the applicant paid into court the amount assessed by them and began work of construction, and both parties excepted to the report, the applicant because the amount was too much, and the landowners because it was not enough, and both demanded a jury trial. Thereafter, and before a trial was had, the applicant was permitted to file an amended petition containing numerous offers, one of which was a declaration of its purpose to build and maintain a retaining wall on its right of way, to protect a brick building standing near by, on a portion of the landowners' land not taken, and the others proposing to grant the landowners certain privileges and easements. The landowners declined to accept the offers, and at a later term moved to strike the amended petition from the record, which motion the court sustained, but permitted the applicant to file at the trial a written stipulation that it would build and forever maintain the retaining wall, described in its amended petition. Held, the court's rulings did not prejudice the applicant, and the order filing the amended petition, being interlocutory, could properly be set aside at a subsequent term.

The landowners are not bound to accept privileges and benefits tendered by the condemnor in mitigation or in lieu of damages which are not in the nature of special benefits arising from the construction of the contemplated public improvement.

Where damages accrue to the residue on account of the taking of a part of the landowners' land under the right of eminent domain, the law contemplates that such damages, in the absence of any agreement between the parties, shall be paid only in money and such special benefits to the remaining land as results from the construction and operation of the public improvement.

In condemnation proceedings by a railroad company, wherein it does not allege in its petition that it desires less than a fee in the land to be taken, and commissioners are appointed and report what amount is a fair and just compensation to the landowners, and the applicant pays into court the amount so ascertained, title in fee to the land described in its petition and plat filed therewith, as necessary for its purposes, vests in it immediately, and the land owners' compensation must be ascertained as of that time.

After such vesting of title, the applicant cannot abandon the use of a part of the land taken and set off against his damages the benefit resulting therefrom to the landowners. The applicant should ascertain, before paying the money into court, that a less quantity of land would answer its purpose, and then amend its petition accordingly, and have the report recommitted.

In ascertaining the value of land taken, the price voluntarily paid by the applicant to another landowner for land similarly situated is proper evidence to be considered by the jury, where damages to the residue are not involved. Distinguishing Buckhannon & Northern R. R. Co. v. Great Scott Coal & Coke Co., 75 W. Va. 423, 83 S. E. 1031.

In ascertaining damages to a building, it is proper to consider its actual value at the time of the taking of the adjacent land, and, in order to ascertain its actual value, it is proper to consider its rental value and the original cost of its construction.

Courts rarely disturb the verdicts of juries in condemnation proceedings, if founded upon any reasonable view of conflicting evidence as to what amount is a just compensation to the landowners.

In proving its value the landowners are not limited to the use which they are then actually making of the land taken, but are entitled to have the jury consider its value for any purpose for which it is then reasonably available.

An instruction which would have told the jury they could disregard the testimony of witnesses, and rest their verdict upon their own judgment of what would be a just compensation to the landowners, ascertained from a view had by them of the premises, is properly refused.

Where the land taken cuts off the water previously supplied to a building on one part of the land, by pipes extending to a spring on another part, the applicant is not entitled to prove, in mitigation of damages, that the landowners, if they had voluntarily conveyed eitherpart, would have been under the necessity of granting or retaining a water privilege.

Where the applicant has not stated in its petition a sum it is willing to pay the landowners, and pays into court the amount ascertained by the commissioners, and thereafter both it and the landowners except to the report, on account of the amount so found, and demand a trial by jury, and such trial results in a reduction of the amount reported by the commissioners, the applicant is entitled to have such excess returned to it, and neither party is entitled to cost against the other.

If the fund paid into court has been lent out, by order of court, and has earned interest, each party should bear his ratable share of the expense of lending it, and each is entitled to his ratable share of the interest earned.

The special receiver, authorized to lend such fund, is entitled to a reasonable commission, which should be commensurate with the services rendered.

Mason and Miller, JJ., dissenting in part.

(Additional Syllabus by Editorial Staff.)

Error to Circuit Court, Preston County.

Condemnation proceedings by the Baltimore & Ohio Railroad Company against A. J. Bonafield's heirs and others. Both parties objected to the award of commissioners, and, there being judgment for defendants, plaintiff brings error. Reversed and remanded.

F. E. Parrack, of Tunnelton, and P. J. Crogan, of Kingwood, for plaintiff in error.

Smith & Jackson, of Clarksburg, and A. G. Hughes and J. V. Gibson, both of Kingwood, for defendants in error.

WILLIAMS, P. The Baltimore & Ohio Railroad Company instituted this condemnation proceeding to obtain title to two small pieces of land in the town of Tunnelton, Preston county, belonging to the heirs of A. J. Bonafield, deceased, for the purpose of increasing its trackage. Upon the filing of its petition, setting forth the purpose for which the land was needed and describing it by metes and bounds, one parcel as containing 51 of an acre and the other.13 of an acre, accompanied with a survey and plat of the land and the adopted changes to be made in the railroad, commissioners were appointed to view the premises and report upon the value of the land taken and the damages to the residue. They reported on the 10th of October, 1910, that $30,000 would be a just compensation for the land taken and damages to the residue. The applicant thereupon elected to pay and did pay into court the amount of money assessed by the commissioners. Both parties, being dissatisfied with the amount assessed, excepted to the commissioners' report, and the court ordered a trial by jury to ascertain what sum would be a just compensation. A trial was had and a verdict rendered on the 18th of July, 1913, finding that $29,500 would be a just compensation both for the lands taken and damages to the residue, and the applicant was awarded this writ of error, upon its petition alleging numerous errors committed during the trial of the case.

One of its principal assignments is that on the 30th of June, 1913, the court erroneously struck out the applicant's amended petition, which it had previously permitted it to file, by order entered December 15, 1911, and permitted it to file and have made a part of the record only a part of its written stipulations tendered at the trial, and rejected other parts, setting forth its plans of construction of its road, and certain changes which it desired to make in its original plans. That part permitted to be filed reads as follows:

"The Baltimore & Ohio Railroad Company, the applicant in this case, now here stipulates and offers in connection with and as part of its general scheme and method of construction of its railroad through the town of Tunnelton, and especially as to the residue of the property of the landowners in this case, as follows: First, that the retaining wall as constructed by the applicant at the north side of the landowners' building, known as the brick bank building, not taken, and to which damages are claimed by the landowners, together with a strip of land six feet wide along the full length of said building on said north side between said building and said retaining wall and adjoining said building, said retaining wall being constructed between said strip of land and the railroad tracks of the applicant so constructed under this improvement, and said retaining wall adjoining said strip of land, shall and will be forever maintained and kept in place by the applicant as a part of its said construction work, and as a protection to said railroad company's works, and to prevent the caving in of the earth and the land between said tracks and said building of the landowners, and, being so maintained and kept, will and shall give access to said buildings at the north side thereof."

And the portions that were rejected are as follows:

"Second, that a public easement and wagon-way at the east end of said bank building owned by said landowners and adjoining said bank building and from said company's land at the east end of said building, and connecting with the public street of the town of Tunnelton, willand shall be forever maintained and kept by the applicant, which public easement and wagon way does now and will and shall forever connect with the said bank building at the east end thereof, and at the other end of the said...