Fork Ridge Baptist Cemetery Ass'n v. Redd

• Decision Date: 20 November 1889
• Citation: 10 S.E. 405,33 W.Va. 262
• Court: West Virginia Supreme Court
• Parties: Fork Ridge Baptist Cemetery Ass'n v. Redd.

10 S.E. 405

(33 W.Va. 262)

Fork Ridge Baptist Cemetery Ass'n

v.Redd.

Supreme Court of Appeals of West Virginia.

Nov. 20, 1889.

Eminent Domain—Cemeteries.

1. Under our constitution, private property can be taken only for public use.

2. An application to condemn land for public use must distinctly state that the land is needed for public use, and will, when condemned, be devoted to such public use.

3. An application to condemn land for cemetery purposes should also show that the land to be taken does not lie within 400 yards of a dwelling-house, unless to extend the limits of a cemetery already located, and then, that such limits will not be extended nearer to any dwelling-house which is within 400 yards.

4. Statutes regulating proceedings for the condemnation of private property for public use must be strictly pursued in the proceedings, and the statutes themselves strictly construed.

(Syllabus by the Court.)

Error to circuit court, Marshall county.

Robert White, for plaintiff in error. Ewing, Melvin & Riley, for defendant in error.

Brannon, J. The Fork Ridge Baptist Cemetery Association in March, 1888, filed in the circuit court of the county of Marshall its application seeking to condemn land owned by J. S. Redd for its use for the burial of the dead. Redd demurred to this application on the ground that the applicant, as such corporation, had not the right or power to condemn property, and the court sustained the demurrer, and dismissed the application, with costs against the applicant; and said association obtained this writ of error.

Ownership and enjoyment of private property are sacred in the eye of the law. The owner's right yields only to public necessity. The great power of eminent domain does overcome this right of private property, but never but for public use, under our constitution. Varner v. Martin, 21 W. Va. 534; Railroad Co. v. Railroad Co., 17 W. Va. 812. The exercise of this great power, as it destroys the citizen's ownership, is jealously guarded. In Varner v, Martin, supra, it was held by this court that where the property to be condemned is to come under the control" of private persons or corporations three qualifications are necessary to impose upon it such a public use as will justify its taking, viz.: (1) The use which the public is to have of the property must be fixed and definite. The general public must have a right to a certain definite use of the private property, on terms and for charges fixed by law; and the owner of the property must be compelled by law to permit the general public to enjoy it. (2) This use of the property by the public must be a substantially beneficial one, which is obviously needful for the public, and which it could not do without, except by suffering great loss or inconvenience. (3) The necessity for condemnation must be obvious. It must obviously appear from the location of the property, or from the character of the use to which it is to be put, that the public could not, without great difficulty, obtain the use of this or other land, which would answer the same general purpose, unless it be condemned; and in such case the courts will judge of the necessity for condemnation. Thus the public use is all-important. There must be an imperious public need. There must be a plain public use in view. The application presented to the court for condemnation is the basis of the proceeding. Must it not plainly and affirmatively show the existence of this public need and public use? Our Code of 1887 (chapter 42, § 5,) says that the application " must also state the purpose to which the estate is intended to be appropriated." Being required thus to state the purpose of condemnation, it must state such a purpose as under the law will call into exercise the power of eminent domain; that is, a public use. Lewis, Em. Dom. § 353, says: "The petition should show the use or purpose for which the property is desired, and that it is within the statutory powers conferred. It should show a clear right to condemn the property described. Accordingly it must not only show that the property is wanted for a public use, but also that it is for a use that is within the particular statute under which the proceedings are had. * * * A petition for a cemetery should show that the privilege of interment is open to the public, as a cemetery may be private as well as public." It must state, not merely a public use intended, but a public necessity. The petition in this case states that the applicant...