Et Ah. v. The County Court Of Doddridge County, (No. C.C 437)

• Decision Date: 20 January 1931
• Docket Number: (No. C.C 437)
• Citation: 110 W.Va. 17
• Court: West Virginia Supreme Court
• Parties: Esta M. Kinney et ah., v. The County Court of DoddridgeCounty

110 W.Va. 17

Esta M. Kinney et ah.,

v. The County Court of DoddridgeCounty

(No. C.C 437)

Supreme Court of Appeals of West Virginia.

Submitted January 14, 1931.

Decided January 20, 1931.

1. Evidence Pleading

Courts take judicial notice of a public statute; and in an action based thereon, it is not necessary that the statute be pleaded by reciting either the contents or the substance thereof. It is sufficient to state facts bringing the case within the statute.

2. Eminent Domain

Under a proper construction of section 31, chapter 43, Barnes' Code, county courts are required to pay, not only for the corpus of land actually taken and for damage to the residue thereof, but also for damage to property abutting a state road even though no land has been acquired from the parties instituting suit.

Certified from Circuit Court, Doddridge County.

Action of Esta M. Kinney and another against the County Court of Doddridge County. Demurrer to the declaration was sustained, and questions arising on such ruling were certified to the Supreme Court of Appeals.

Reversed.

Louis A. Henderson, and Homer Strosnider, for plaintiffs. R. S. Blair, and J. Paid Bumgardner, for defendant.

Lively, Judge:

The lower court having sustained a demurrer to the declaration, the questions arising thereon were, on joint application of counsel, certified to this Court for review.

The declaration alleges that the plaintiffs owned a parcel of land, on which a dwelling and garage were situate, abutting on Marie Street in the town of West Union, Doddridge County, West Virginia, the dwelling house and garage having been built with reference to the established grade of said Marie Street; that during their ownership of said premises, the State Road Commission of West Virginia, a corporation, decided by order duly entered of record, to re-locate the state road (Northwestern Turnpike) through West Union, a municipal corporation having a population of less than 2500 persons, and to take over Marie Street as a part of the state road; that the State Road Commission, to-wit, on March 1, 1928, in pursuance of the authority vested in it by virtue of the statute in such case made and provided, took possession of Marie Street, and constructed a concrete surface road upon Marie Street, whereby the grade of said street abutting plaintiffs' property was raised to a height varying from six to ten feet, by reason whereof plaintiffs are deprived of the use of the entrance into and upon their lot from said street, and required to make alterations in their lot so as to make it conform with the surface of the state road, and so that water will not be collected and allowed to flow into the basement of the dwelling house and garage, all of which is to plaintiffs' damage to the amount of $5,000.00; "and that by virtue of the law and the statute for such cases made and provided they have the right to recover said amount from the said defendant."

The questions certified here for decision may be answered by considering two propositions, namely, (1) whether the allegations in the declaration are sufficient to charge defendant county court with liability, and (2) whether the language of section 31, chapter 43, Barnes' Code, contemplates that the county courts are liable for damages arising in the widening, straightening, grading or altering of state roads.

In considering the first proposition, it is to be noted that the declaration contains no allegation that the county court has committed any wrongful act, that it participated in any manner in acquiring the right of way, that it authorized the road commission to acquire it, or of any ascertained damages to plaintiffs and liability of the county court therefor by condemnation proceedings or otherwise; and because of the failure so to allege it is contended that the demurrer to the declaration was properly sustained. An allegation of ascertained damages would preclude the right of plaintiffs to recover in this action and finds its proper place in a plea of avoidance.

This action is based on a statute of this forum, and rules of pleading do not require that public statutes be specifically pleaded or that their provisions be set out; of these the courts take judicial notice. 20 Ency. of Pleading & Practice 594. The declaration refers indirectly to the road law applicable hereto, namely, section 20, chapter 43, Barnes' Code, under which...