Board of Ed. of Kanawha County v. Shafer, CC

• Decision Date: 11 May 1962
• Docket Number: No. CC,CC
• Citation: 147 W.Va. 15,124 S.E.2d 334
• Court: West Virginia Supreme Court
• Parties: The BOARD OF EDUCATION OF KANAWHA COUNTY v. Page R. SHAFER et al. 861.

Page 334

124 S.E.2d 334

147 W.Va. 15

The BOARD OF EDUCATION OF KANAWHA COUNTY v. Page R. SHAFER et al.

No. CC 861.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 23, 1962.

Decided March 6, 1962.

Rehearing Denied May 11, 1962.

Syllabus by the Court

1. In a case certified to this Court pursuant to the provisions of Code, 58-5-2, this Court will consider and decide only such questions as are certifiable under the provisions of the statute and only such questions within that category as have been decided by the circuit court and certified by it to this Court.

2. 'The sole discretion to determine what quantity of land is necessary for a public use is vested in the agency resorting to eminent domain, which discretion will not be interfered with by the courts unless it has been abused.' State of West Virginia etc. v. Bouchelle, Judge etc., Pt. 2 Syl., 137 W.Va. 572 .

3. In an eminent domain proceeding, the landowner has a legal right to be paid exclusively in money the compensation to which he is entitled.

4. Any corporation or body politic authorized to acquire private property for public use pursuant to the provisions of Chapter 54, Code, 1931, as amended, may acquire an estate in fee simple, or any lesser estate therein.

5. A county board of education may acquire a fee simple title to land in an eminent domain proceeding, subject to easements not previously existing over the land appropriated, for the benefit of the residue of land belonging to the landowners, for the purpose of lessening or minimizing damages resulting to such residue.

6. When, in an eminent domain proceeding, a county board of education acquires a fee simple title to land subject to easements not previously existing, over the land appropriated for the benefit of the residue of land belonging to the landowners, a consideration of such easements by the commissioners or by a trial jury, in determining the amount of compensation to which the landowners are entitled, does not constitute the payment of compensation to the landowners in something other than money.

Woodroe, Kizer & Steed, John O. Kizer, Charleston, for plaintiff.

Charles W. Caldwell, Charleston, for defendants.

CALHOUN, President.

The Circuit Court of Kanawha County, on its own motion, certified to this Court two questions arising upon a demurrer to the amended petition of the Board of Education of the County of Kanawha in an eminent domain proceeding to acquire for school building purposes certain land belonging to Page R. Shafer and Mildred C. Shafer. The questions certified are as follows:

'(1) In condemnation proceedings may the condemnor take fee simple title to the land sought to be appropriated subject to easements, not previously existing, reserved or left to the condemnee by the condemnor for the purpose of reducing or minimizing damages to the residue of condemnee's land?

'(2) Does the taking by condemnor of fee simple title to the lands sought to be appropriated subject to easements, not previously existing, reserved or left to the condemnee by the condemnor constitute payment of damages in something other than money?'

By a petition filed on June 23, 1960, the petitioner sought the right to condemn a tract of 1.445 acres, which is a part of a tract of 56 acres, more or less, fronting on a road known as Midway Drive in Union District of Kanawha County. The land is owned jointly by the defendants, Page R. Shafer and Mildred C. Shafer, husband and wife. By an order entered on June 23, 1960, the petitioner was granted the right to enter into possession of the premises pursuant to the provisions of Code, 54-2-14, as amended, and on June 24, 1960, commissioners were appointed to ascertain just compensation for the real estate in accordance with pertinent statutory provisions. Pursuant to such appointment, the commissioners viewed the premises and thereafter submitted a report dated August 31, 1960, and filed on September 1, 1960, fixing the sum of $3,500 as just compensation for the land taken and for damages to the residue. The report includes the following language:

'The estate in said parcel of real estate proposed to be taken is the fee simple title thereto, free from all liens and encumbrances, but subject to an easement and right of way to construct, operate, maintain, and remove sewer, gas, water, electric, and other utility pipes, wires, liens, and conduits and for road purposes over a strip of land 40 feet wide along the northerly boundary of the above described tract of land extending from Midway Drive in a westerly direction 200 feet and to a further easement to construct, operate, maintain, and remove a sanitary sewer along and down the westerly fork of Aaron's Creek said easements to be used and enjoyed in common by the petitioner and said defendants, their successors, assigns, grantees, and permittees.'

No such easements were described or mentioned in the original petition, but the amended petition states: 'The estate in said parcel of real estate proposed to be taken is the fee simple title thereto, free from all liens and encumbrances, but subject to' the easements described in the report of the commissioners as quoted above. While the original petition makes no reference to the easements now in question, apparently such matters were brought to the attention of the commissioners by counsel for the petitioner, and obviously such matters were considered by the commissioners in arriving at the sum of $3,500 as proper compensation.

By an order entered on December 9, 1960, the court permitted the filing of the amended petition. To this amended petition the defendants filed their demurrer. By an order entered on August 10, 1961, the court sustained the demurrer and certified to this Court the questions now presented for decision. In sustaining the demurrer the trial court held: (a) That the law will not permit the petitioner in this proceeding to take a fee simple title to the parcel of land sought to be condemned, subject to the easements not previously existing as described in the amended petition, for the purpose of reducing or minimizing damage to the residue; and (b) that to permit the appropriation of the land sought to be condemned, subject to easements for the benefit of the residue as described in the amended petition, and to permit such easements to be considered in a determination of just compensation to the landowners, would result, to that extent, in the payment of compensation to the landowners in something other than money.

In a case certified pursuant to Code, 58-5-2, this Court will consider and decide only questions which have been decided and certified by the circuit court. Jones v. Appalachian Electric Power. Co., W.Va. 115 S.E.2d 129, 136; General Electric Co. v. A. Dandy Appliance Co., 143 W.Va. 491, 500, 103 S.E.2d 310, 315; Pope v. Edward M. Rude Carrier Corp., 138 W.Va. 218, 224, 75 S.E.2d 584, 588; Pancake Realty Co. v. Harbor, 137 W.Va. 605, pt. 5 syl., 73 S.E.2d 438; Means v. Kidd, 136 W.Va. 514, 516, 67 S.E.2d 740, 742; Weatherford v. Arter, 135 W.Va. 391, 394, 63 S.E.2d 572, 574; Weese v. Weese, 134 W.Va. 233, 245, 58 S.E.2d 801, 809; Raleigh County Court v. Cottle, 82 W.Va. 743, pt. 3 syl., 97 S.E. 292. Questions discussed in the briefs which did not arise upon the demurrer to the amended petition and which, therefore, were not decided by the circuit court and certified by it to this Court will not be considered.

This Court is committed to the proposition that in an eminent domain proceeding, 'compensation' to the landowner must be paid in money and in no other form. In the third point of the syllabus of the case of Baltimore & Ohio Railroad Co. v. Bonafield's Heirs, 79 W.Va. 287, 90 S.E. 868, the Court stated that damages to the residue 'in the absence of any agreement between the parties, shall be paid only in money', coupled with such benefits to the residue as may result from the taking and consequent construction. To the same effect see: Chesapeake & O. R. Co. v. Halstead, 7 W.Va. 301; Chesapeake & O. R. Co. v. Patton, 6 W.Va. 147; 6 M.J., Eminent Domain, Section 56, page 745; 29 C.J.S. Eminent Domain § 191, p. 1089; 18 Am.Jur., Eminent Domain, Section 128, page 752; Lewis, Eminent Domain, Volume 2, Section 682, page 1172, and Section 756, page 1343.

Counsel for the petitioner concede that compensation to the landowners may be paid only in money, but, in that connection, rely upon the provisions of Code, 54-1-8, which is, in part, as follows: 'Any corporation, or body politic, authorized to acquire private property for public use under the provisions of this chapter may acquire an estate in fee simple, or any lesser estate therein.' (Italics supplied.) Code, 54-2-2, as amended, in providing for necessary allegations of the petition, states: 'If an estate less than a fee is proposed to be taken, the petition shall describe with reasonable certainty the particular estate less than a fee which it is proposed to take, * * *.' (Italics supplied.) Code, 54-2-9, as amended, states that the commissioners 'shall ascertain what will be a just compensation to the person entitled thereto for so much thereof as is proposed to be taken, or for the interest therein, if less than a fee, and for damage to the residue of the tract beyond all benefits to be derived, in respect to such residue, * * * including, when less than the fee is taken, the actual damage, if any, done, or that may be done, to the fee by such construction, * * *.' (Italics supplied.) Code, 54-2-12, provides that upon confirmation and recordation of the report, or of the verdict of the jury, if there be one, and payment of the sum awarded, with interest, to the person entitled thereto, title shall be absolutely vested in fee simple in the applicant, except that 'if the applicant describe in its petition an estate or interest therein less than a fee, upon payment as aforesaid, such estate and interest as is stated and described in the...