Hesse v. State Soil Conservation Committee

Decision Date17 June 1969
Docket NumberNo. CC878,CC878
Citation153 W.Va. 111,168 S.E.2d 293
CourtWest Virginia Supreme Court
PartiesHobart W. HESSE et al. v. STATE SOIL CONSERVATION COMMITTEE et al. (two cases).

Syllabus by the Court

1. The State Soil Conservation Committee is an arm of the state, acting in its behalf, and is therefore immune from suit by reason of Article VI, Section 35 of the Constitution of the State of West Virginia.

2. A soil conservation district is not an agency of the state and is not immune from suit by reason of Article VI, Section 35 of the Constitution of the State of West Virginia.

3. A soil conservation district being local in nature can be sued in the proper court of any county or counties comprising the district.

Rogers & Hott, Donald C. Hott, Keyser, for plaintiffs.

Chauncey H. Browning, Jr., Atty. Gen., Thomas P. O'Brien, Jr., Asst. Atty. Gen., Charleston, for defendants.

CAPLAN, Judge:

This matter is before the Court on certification from the Circuit Court of Mineral County. The plaintiffs, Hobart W. Hesse and Muriel F. Hesse, his wife, are the owners of a tract of land in Mineral County, containing approximately 202 acres. A small stream known as Whipp's Run flows through their property. Adjacent to and above the Hesse land on Whipp's Run is a 109 acre tract of land owned by the State Soil Conservation Committee. The Committee granted to Potomac Valley Soil Conservation District an easement on its land for the purpose of constructing a flood-prevention dam. A contract was let to National Construction Company for the construction of this dam.

The only access to the site of the dam was over a narrow right of way on the Hesse property which the construction company found inadequate for the moving of heavy equipment necessary for the construction of the dam. Thereafter several conferences were held between counsel for the various parties, the purpose of which was to settle differences, not only pertaining to the right of way, but also as to matters concerning the riparian rights of the Hesses.

Without any indication of their intentions, and without any notice, the Committee and District jointly filed a suit against the Hesses seeking a preliminary injunction to enjoin them from interfering with the use of the right of way by the Committee and District or their agents, servants, contractors or employees. A preliminary injunction was obtained from the judge of an adjoining circuit, even though the judge of the Twenty-first Circuit, which includes Mineral County, was present in said circuit when the application was made. The preliminary injunction was issued as a vacation order of the Circuit Court of Mineral County. No notice was given the Hesses and, it appearing to the court that the plaintiffs were 'public body corporates of the State of West Virginia', no bond was required.

While the Hesses were restrained by said injunction, National Construction Company, acting on behalf of the District, widened the narrow right of way to accommodate heavy equipment, thereby causing considerable damage to the plaintiffs' property, fences and buildings.

The Hesses filed their answer to the action in which the injunction was obtained and the matter was submitted to the Circuit Court of Mineral County for final determination. By order dated September 13, 1966, the court dissolved the injunction awarded by the judge of the adjoining circuit and authorized the Hesses to limit the use of the right of way to the width that had existed prior to the issuance of the preliminary injunction.

The Hesses then instituted the two civil actions with which we are now concerned. One action was instituted to recover for damages to the real estate caused by the widening of the right of way and for costs of obtaining the dissolution of the preliminary injunction. The other action sought to enjoin the State Soil Conservation Committee, the Potomac Valley Soil Conservation District and the National Construction Company from interfering with their lower riparian water rights. It is contended by the plaintiffs that the construction of the flood-prevention dam with a permanent pool upstream from their farm will result in complete blockage of Whipp's Run during certain dry periods of each year.

These actions were consolidated and tried together before the court. By an order dated November 13, 1968 the court granted a motion to dismiss the State Soil Conservation Committee and the said Committee was dismissed as a party defendant in both civil actions. The court denied a motion to dismiss the Potomac Valley Soil Conservation District and said District is continued as a party defendant in both cases. The court then, on its own motion, certified the following questions to this Court:

'1. Under the provisions of West Virginia Constitution, Article VI, Section 35, is the State Soil Conservation Committee, a public body corporate, immune from suit?

'2. If the State Soil Conservation Committee, a public body corporate, is not so immune from suit, must the venue of a suit against the State Soil Conservation Committee be brought in the Circuit Court of Kanawha County pursuant to the provisions of West Virginia Code, Chapter 14, Article 2, Section 2, or can such suit be maintained in the Circuit Court of the County in which the real estate is located, namely, Mineral County?

'3. Is the Potomac Valley Soil Conservation District, a public body corporate, immune from suit under the provisions of the Constitution of West Virginia, Article VI, Section 35?

'4. If the Potomac Valley Soil Conservation District is not so immune from suit, must such suit be brought against it in the Circuit Court of Kanawha County, West Virginia, under the provisions of West Virginia Code, Chapter 14, Article 2, Section 2, or can such suit be maintained in the Circuit Court of the County in which the real estate is located?

'5. If the answers to either Issue 1 or 3 above is in the affirmative, or the answer to either 2 or 4 is that the venue of such action must be in Kanawha County, are the rights of the plaintiffs under Article III, Section 9, of the Constitution of West Virginia adequately protected by a Writ of Mandamus to require either the State Soil Conservation Committee and/or Potomac Valley Soil Conservation District to institute condemnation of the plaintiffs' property rights in water?

'6. If the answer to Issue 5 above be in the affirmative, against whom may such Mandamus be brought, and what would be the venue thereof?'

The trial court's action in dismissing the State Soil Conservation Committee as a party defendant in each case is not questioned by the plaintiffs. In fact, the plaintiffs seek an affirmance of the court's rulings which would permit them to proceed against the District in the Circuit Court of Mineral County. While the Committee was dismissed, it is not clear whether the ground therefor was its immunity as a state agency or improper venue.

In answering the first certified question it is essential to consider Article VI, Section 35 of the Constitution of West Virginia, the pertinent language of which provides: 'The State of West Virginia shall never be made defendant in any court of law or equity * * *.' The prohibition against suit so succinctly set out in the above constitutional provision relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties. City of Charleston v. Southeastern Construction Company, 134 W.Va. 666, 64 S.E.2d 676; Hamill v. Koontz, 134 W.Va. 439, 59 S.E.2d 879; Schippa v. West Virginia Liquor Control Commission, 132 W.Va. 51, 53 S.E.2d 609, 9 A.L.R.2d 1284; Stewart v. State Road Commission of West Virginia, 117 W.Va. 352, 185 S.E. 567; Mahone v. State Road Commission of West Virginia, 99 W.Va. 397, 129 S.E. 320; Barber v. Spencer State Hospital, 95 W.Va. 463, 121 S.E. 497; Miller Supply Company v. State Board of Control, 72 W.Va. 524, 78 S.E. 672.

Whether the State Soil Conservation Committee is such an agency of the state as to enjoy the aforesaid constitutional immunity from suit depends upon the statute which created it and the functions performed by it under said statute. Code, 1931, 19--21A--4, as amended, provides: '(a) There is hereby established, to serve as an agency of the State and to perform the functions conferred upon it in this article, the State soil conservation committee. * * *.'

This statute further provides that the Committee shall consist of seven members, four of whom serve by virtue of the state office each holds and three of whom are representative citizens appointed by the Governor. The Committee may call upon the Attorney General of the state for such legal services as it may require. It may, in the performance of its functions, request and receive, under available appropriations, assistance from state agencies and state institutions of learning. A further examination of the aforesaid statute clearly reveals that the functions of the Committee are statewide in nature. It is a direct governmental agency of the state. When it acts, it acts for the state in the administration of state affairs. Funds for the operation of the business of the Committee are appropriated and made available to it by the legislature. Considering the legislative...

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    ...The state and its agencies performing state functions statewide are entitled to this absolute immunity. Hesse v. State Soil Conservation Committee, 153 W.Va. 111, 168 S.E.2d 293 (1969). It cannot be waived by the Legislature or the courts. City of Morgantown v. Ducker, 153 W.Va. 121, 168 S.......
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