County Court v. Hall.
| Decision Date | 29 March 1902 |
| Citation | 51 W.Va. 269 |
| Parties | County Court v. Hall. |
| Court | West Virginia Supreme Court |
A valuable consideration is the relinquishment by the promisee of some right which he may lawfully exercise or enforce, or the incurring of some risk or trouble at the instance of the promisor, (pp. 274, 276).
When a county court, in prosecuting a condemnation proceeding under chapters 42 and 43 of the Code, has made costs and upon the agreement of the landowner to pay the costs, dis- misses the proceeding to take the particular parcel of land described and designated in its application, the relinquishment of its right to retain the advantages gained in such proceeding and the risk of future costs and trouble it incurs by dismissing constitute a sufficient consideration for the promise to pay the costs and they may be recovered in an action of assumpsit, (p. 275).
By such agreement and dismissal, the court does not act in excess of its powers, nor disable itself from establishing the road upon another location, and the contract is not illegal, (p. 277).
Error to Circuit Court, Barbour County.
Action by the county court of Barbour County against James E. Hall. Judgment for defendant, and plaintiff brings error.
Reversed.
Murphy & George, for plaintiff in error.
A. G. Dayton and F. 0. Blue, for defendant in error.
poffenbarger, judge i
The county court of Barbour County instituted this action of assumpsit against James E. Hall to recover the costs made by it in a condemnation proceeding lately pending in the circuit court of said county in which, said county court sought to take certain real estate of the defendant for the purpose of constructing thereon a. public highway. After costs, amounting to four hundred and. twenty-eight dollars and ninety-eight cents, had been made, the defendant, as a result of a parley or conference between him and the members of the county court, made the following proposition:
"To the Hon., The County Court of Barbour County: If you will cause (lie suit of the county court of Barbour County against myself for the condemnation of a road through my farm in Elk district, to be dismissed, I will, within ten days from such dismissal, pay all the costs, both of the county, as well as myself. Feb. 20, 1897. James E. Hall-'
In the same month, the county court of said county entered the following order:
"in the matter of the condemnation proceedings now pending in the circuit court of this county, against James E. Hall, for the condemnation of a road through his lands in Elk district, upon consideration this court is of opinion that it is inexpedient to proceed further with said suit, and the defendant, James E. Hall, agreeing in writing to pay the costs of said suit, if the same be dismissed, it is ordered that the prosecuting attorney be directed to move the circuit court to dismiss said suit of Barbour County against the said Hall, "
On the 12th day of November, 1897, the following order was made by the circuit court:
The declaration contains the common counts in assumpsit and a special count upon the contract for the payment of the costs. The defendant having demurred, and the court having overruled his demurrer, he entered his plea of non-asumpsit and tendered a special plea in writing, which is as follows:
Objection to the filing of said plea was overruled and the plaintiff excepted, whereupon issue was joined upon the plea of non-assumpsit and the special plea was replied to generally. A. jury having been empaneled, the plaintiff introduced the written proposition made by Hall, copies of the orders made by the county court and circuit court dismissing said condemnation proceeding, the taxation of cost and also the evidence of two wit- nesses, identifying the said proposition as the paper upon which the county court acted in causing the dismissal. Then the defendant moved the court to exclude the evidence and direct a verdict for him which was done over the objection of the plaintiff. The court having also overruled a motion to set aside the verdict and grant a new trial, and the plaintiff having excepted to all rulings of the court adverse to it, it has brought the ease here on a writ of error.
From the argument contained in the briefs, it is inferred that the court below excluded the evidence on the ground that there was no legal and binding contract between the parties in reference to the cost, it being insisted by the attorneys for the plaintiff in error that, if there was any consideration for the promise on the part of Hall to pay the cost, it was the agreement of the county court never to establish a public road through his land, it being argued that the dismissal of the proceeding carried with it such agreement. It will be noticed that the proposal made by Hall was to pay the cost in consideration of the dismissal of the condemnation proceeding. That proceeding was to establish a road according to a particular location upon his land. It was not for the purpose of establishing a road generally on his land without reference to location. The attempt to locate a road through his land had progressed to a point beyond the uncertainty of its particular location. Before the institution of the condemnation proceeding in the circuit court, the county court, it is presumed, appointed viewers or a committee of its own body and had the road surveyed and marked out on the ground and a plat thereof made. Its application filed in the circuit court and upon which the proceedings which Hall desired that the County Court should dismiss were founded, was for the taking of a specific parcel of land accurately described and designated. What peculiar value it had that prompted its owner to the vigorous and endless resistance which produced this large amount of cost, and his agreement to pay it, is undisclosed. But, as the county court has discretion to prosecute to final determination such a proceeding to obtain land for the particular location of a public road, or to abandon that location at any time and begin proceedings to establish the road upon a different location, in which event, a second suit or proceeding would be separate and distinct from the first one and in reference to an entirely different parcel of land, it is clear that; by dismissing its proceeding, it did not necessarily agree not to establish a road over Hall's land. Neither the proposition of the land owner nor the order of the county court directing the dismissal refers to anything except the particular suit then pending. In neither place is it said that no future suit shall be instituted for the condemnation of land for a public highway through the farm. There was nothing in the evidence from which the court below could infer that the peculiar situation of the land and the location thereon of the proposed road, were not such as may have furnished good ground for the exercise of the discretion of the county court to abandon the particular location sought and select another, or that the peculiar circumstances were not such as to make it advisable on the part of Hall, as a prudent man, to induce the county court, by relieving it of the payment of even this large amount of money, to change the proposed location to some other place on his land, or to...
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