Garden v. The County Court Op Nicholas County, (No. C.C. 441)

• Decision Date: 03 March 1931
• Docket Number: (No. C.C. 441)
• Citation: 110 W.Va. 195
• Court: West Virginia Supreme Court
• Parties: Louise Garden v. The County Court op Nicholas County

110 W.Va. 195

Louise Garden

v.The County Court op Nicholas County

(No. C.C. 441)

Supreme Court of Appeals of West Virginia.

Submitted February 24, 1931.

Decided March 3, 1931.

Eminent Domain

Under section 31, chapter 6, Acts of the Legislature of 1923, amending and re-enacting section 31, chapter 43, Code of 1923, a county court is liable for the permanent injury caused to a person's land by the State Road Commission in changing the course of a stream on adjoining land for the purpose of relocating a state highway.

Certified from Circuit Court, Nicholas County.

Action by Louise Carden against the County Court of Nicholas County. The trial court overruled defendant's demurrer to the declaration and each count thereof, and certified such ruling for review.

Affirmed in part; reversed in part.

W. G. Brown, for plaintiff.

Emmett Horan, for defendant.

Maxwell, Judge:

Upon this certification there is presented the action of the trial conrt in overruling a demurrer to the declaration and each count thereof.

Stripped of surplusage the first and third counts charge the county court with liability for permanent injury to plaintiff's land on Peter's Creek in Nicholas County by reason of the change by the state road commission of the bed of said stream on land adjoining plaintiff's, whereby the said stream was diverted from its natural course and thrown against and over plaintiff's land, causing the said stream to encroach upon plaintiff's property and constantly expose the same to overflow.

"Private property shall not be taken or damaged for public use, without just compensation * * *." Constitution of West Virginia, Article 3, section 9. As has been often emphasized this constitutional provision guarantees to any owner of property just compensation not only for property actually taken for public use but as well where his property is damaged for public use or benefit.

Where public authorities collect water in a mass and cast it upon private property, the owner must be compensated therefor; it is a damaging of his property for public welfare. Tracewell v. County Court, 58 W. Va. 283. If the county court itself had caused injury to plaintiff's land by changing the bed of the stream upon adjoining land and thereby causing the stream to erode and overflow plaintiff's land, the court would clearly be responsible in damages to her, under the said constitutional guaranty. The question then arises whether the county court is liable when that sort of thing, as pleaded, has been done not by the county court but by the state road commission. Section 31, chapter 6, Acts of the Legislature 1923, provides, in part, as follows: "Whenever it shall be necessary from any cause to acquire any lands for the purpose of constructing, widening, straightening, grad- ing or altering any state road which cannot be acquired at a satisfactory price by purchase or grant, the said commission is hereby empowered to condemn the necessary lands therefor, together with all necessary rights and easements, under the right of eminent domain, or it may proceed as provided in section one hundred and thirty-eight of this act. The cost of all rights of way acquired for any state or county-district road, or roads, or for the purpose of widening, straightening, grading, or altering any such road or roads, shall be paid by the county court of the county in which such road or roads shall lie."

In Kinney v. County Court, 110 W. Va. 17, S. E., we recently held that under said statute the county courts are...