Clay County Court v. Adams
| Decision Date | 30 September 1930 |
| Docket Number | 6679. |
| Parties | CLAY COUNTY COURT v. ADAMS. |
| Court | West Virginia Supreme Court |
Submitted September 16, 1930.
Syllabus by the Court.
Permitting defendant in condemnation proceedings to estimate damages sustained held not reversible error, where defendant gave facts on which opinion was based and was fully cross-examined.
It is not reversible error in a condemnation proceeding to permit the defendant to give his opinion as to amount of damages he has sustained by reason of the taking, where he has given facts on which his opinion is based, and where he has been fully cross-examined as to such facts.
Measure of damages to residue of property not taken is difference in value immediately before and after taking, less special benefits; absence of opinion evidence as to difference in value of residue not taken does not require reversal, where jury viewed premises and heard evidence as to damages.
The true test of damages to the residue of the property not taken is the difference in value immediately before and immediately after taking, not charging the owner with general benefits but taking therefrom special benefits, if any be shown; and where the jury has viewed the premises and there is full evidence as to the damages done, and the court has instructed the jury to apply the true test, the verdict will not be set aside because no witness has given his opinion as to the difference in value of the residue not taken immediately before and immediately after the taking, unless it can be clearly seen that injury has resulted.
One owning coal with right to use surface can under proper regulations transport coal across public road; transportation of coal across road, where continued for many years without danger to public, held not nuisance per se equipment used in transporting coal over road held not subject to summary destruction, where transportation was not nuisance per se (Code, c. 43, § 184, and § 185, Acts 1925, c. 17).
The owner of coal with mining rights, including use of the surface in mining and marketing his coal, has a right to transport his coal across and above a public road established on the land, under proper regulations conditions, and restrictions, designed for full protection of the public in the use of the road. And, where such right has been exercised for many years by tacit consent of the public authorities, and without detriment or danger to the public such transportation above and across the road by proper and safe appliances will not be deemed a public nuisance per se and subject the equipment to summary destruction.
Error to Circuit Court, Clay County.
Condemnation suit by the Clay County Court against Frank T. Adams. Commissioners' report awarded damages to defendant and a like sum was awarded by jury and judgment entered on the verdict, and the plaintiff brings error.
Affirmed.
E. G. Pierson, Pros. Atty., and Eakle & Eakle, all of Clay, and Brown, Jackson & Knight, of Charleston, for plaintiff in error.
Davis, Painter & Silverstein, of Charleston, for defendant in error.
LIVELY, P.
In this condemnation suit, the commissioners' report awarded damages to Adams in the sum of $1,000; both parties excepted, and the case went to a jury, which heard the evidence, viewed the premises, and awarded a like sum. Plaintiff moved to set aside the verdict; the court overruled the motion and entered judgment. Plaintiff, the county court, prosecutes error.
Adams owned the coal under a tract of about 19 acres of land abutting on Elk river, near the mouth of O'Brien's creek in Otter district of Clay county, and the usual mining rights and privileges over the surface. His predecessor in title had opened a mine thereon from which a tramway, about 2.100 feet long, had been constructed with a slight down grade from the mine mouth to a tipple erected against a rock point overlooking the river at an elevation of about 828.9 feet, and above a county road which ran between the foot of the rock point and the river. A cable was anchored into the rock at the tipple, and extended above the road and river, which cable conveyed coal in a large iron bucket of three-ton capacity across to a railroad on the south side of the river. The tipple was supported by poles, some of which were placed at a distance of 15 to 17 feet from the traveled portion of the road. The witnesses disagree as to the distance. From the tipple a chute ran down to the road to convey coal to wagons on the roadbed. The right of way for this road was 30 feet wide, measured from the center of the traveled part, a distance of 15 feet on each side. Whether 15 feet from the center of the traveled way measured toward the tipple placed some of the supports of the tipple in the right of way is a matter of controversy. It is quite clear that the chute extended over the right of way. The state road commission took over the road and began the construction of a state highway and required the county court to furnish a right of way 105 feet wide. Necessarily the project took in the site of the tipple, whether it was partly on the 30-foot right of way or entirely off of it. The tipple appears to have been a temporary affair, and was much decayed. Notice was given to Adams' superintendent to move the tipple, but he did not do so, and the contractor says he offered to remove it, but was told by the superintendent to shoot it into the river. At any rate, holes for the excavation were bored under the tipple, or near it, and dynamite used, which blew up the tipple. Adams stopped further work by injunction, and this condemnation suit was promptly instituted to ascertain what compensation should be paid Adams for his structures, buildings, minerals, and mining rights taken or damaged by the public improvement.
It will be noted that Adams did not own the surface of the land. He owned the coal thereunder, and the tramway, tipple, cable, and appliances for getting out the coal to transportation. The damage is to his easement over the land, and his mining rights therein. When Adams ascertained that the road would take the tipple site, he selected a new location for his tipple a short distance from the old at an elevation of 861.9 feet, or 33 feet higher than the old site, and constructed a new tramway from the mine mouth to the new site, which, instead of being an average down grade as in the old tram, was an average up grade in a slight degree, thus requiring power to get the coal from the drift mouth to the new tipple, whereas, on the old tram, the cars moved down to the tipple by gravitation. He said it would cost 10 cents per ton more to move the coal to the new tipple than to the old one. He moved the machinery from the old site to the new one. He estimated the damage done to his mining operations at $12,000. He fixed the reasonable cost of a new tramway to replace the old one taken at $2,000. He constructed a road to haul his machinery from the old to the new site and to haul material to the new tram, which, he said, was necessary, and that the reasonable cost of such a road would be $500. Barnhart, civil engineer for Adams, says the old site would have been used had it not been taken, after repairing the tipple at a cost of $500, and that the new site was the only practicable one left. He confirmed Adams in the character and amount of work done in order to get the coal out, and estimates the damage to the mining operations at $10,500.
It appears that the predecessor in title to the coal and mining rights did not have permission from the county authorities to erect the tipple or any part of it on the 30-foot right of way, or to erect the cable over the road, and there were complaints from the road patrolman to the former owner by reason of coal accumulating in the old wagon roadbed from the tipple and bucket. Much time was consumed in the trial over the controversy, above referred to, as to the exact location of the tipple with reference to the 30-foot right of way for the old road. There was no evidence of the value of the old tipple which the contractor blasted into the river.
The errors relied upon are: (1) Admission of improper evidence on behalf of Adams; (2) giving and refusing instructions; and (3) refusal to declare a mistrial, when the court was advised that a juror was absent at the view.
It is argued that the evidence for defendant did not give a proper basis for the ascertainment of damages. He was permitted to state the costs necessitated by the taking of his old tipple site, namely, the location of a new tipple at the most practicable point, the building of a new tramway, the change in the grade from gravitation in the old tram, and the increased cost per ton of coal by reason thereof, and the reasonable cost of such new tramway, also the reasonable costs of removal of his equipment to the new site. Then after giving these items of damage, he was permitted to say that he estimated his entire damage at $12,000. The true measure of damages to the residue in condemnation suits is the difference in value immediately before and immediately after taking, without charging the owner with general benefits. That is the measure to be used by the jury in arriving at its verdict. A witness may state his opinion of the difference in value of the residue occasioned by the taking, but he must give some facts on which his opinion is based, else it would be of no benefit. No witness attempted to give his opinion of the value before and the value after the improvement. It is permissible for a witness to do so, after giving a basis for his opinion, but it is not necessary for him to give his opinion. Adams' opinion that his mining rights had been damaged to the extent of $12,000, in the light of...
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