Doddridge County Sup'rs v. Stout
| Decision Date | 02 November 1876 |
| Citation | 9 W.Va. 703 |
| Parties | SUPERVISOR OF DODDRIDGE v. WILLIAM STOUT. |
| Court | West Virginia Supreme Court |
1. It is a general rule, that he who seeks to exercise the extraordinary power of taking private property for public utility, must follow strictly the mode of procedure prescribed by law.
2. The defendant being present at the time the commissioners were appointed, and participating in the procedure of appointment it was as much his duty as the court's, to see that all the commissioners were freeholders. And if he was cognizant at the time the appointment was made, that one of the commissioners was not a freeholder, it was his duty then to have objected, and by not doing so it was a waiver on his part.
3. Where the defendant does not show, in any way, that he did not know at the time of the appointment, that the commissioner was not a freeholder, the court should not refuse, on that ground, to confirm the report made by the other four commissioners, who were freeholders.
4. In the absence of evidence clearly showing that the damages are insufficient, the inquest taken on the ground is conclusive.
5. While legislation is necessary to give effect to a constitutional provision, laws that were in existence at the time the new Constitution was adopted, remain the law until legislation is had to enforce the provisions of the new Constitution.
6. This case was controlled by the forty-second chapter of the Code there having been no legislation to put article three section nine, of the Constitution into force.
7. The statute does not require a separate report for each tract of land belonging to the same owner, but a separate report as to the owners of distinct tracts of land who are proceeded against jointly for condemnation of their lands respectively.
8. In this case, although there was but one report, each tract of the defendant's land was separately assessed, which is all that is required in any case.
Supersedeas to a judgment of the circuit court of Doddridge county, rendered on the sixteenth of May, 1873, in a proceeding under chapter forty-two of the code, to condemn land for a public road, in which the supervisors of Doddridge county were plaintiffs, and William Stone was defendant.
The facts appear in the opinion of the Court.
Hon. C. S. Lewis, Judge of said circuit court, presided at the trial below.
Scott and Cole for said Stone, defendant.
Winfield Scott for appellees.
This case is before us from a judgment of the circuit court of Doddridge county, rendered the sixteenth day of May, 1873, in a proceeding under chapter forty-two of the code, to condemn land for a public road.
It is assigned as error, that Parks, one of the commissioners, was not a freeholder. The statute requires the commissioners to be freeholders. The often adjudicated principle in such cases is, that he who seeks to exercise the extraordinary power of taking private property for public utility, must follow strictly the mode of procedure prescribed by law.
The record in this case shows that the court, pursuant to the eleventh section of chapter forty-two of the code, " nominated thirteen disinterested freeholders of (the) county and the plaintiff struck off the names of four of them, and the defendant four of them, and the remaining five, to-wit, Jephtha F. Randolph, Amaziah Bee, Wm. H. H....
To continue reading
Request your trial