Hope Natural Gas Co. v. West Va. Turnpike Commission

• Decision Date: 06 February 1959
• Docket Number: No. 842,842
• Citation: 105 S.E.2d 630,143 W.Va. 913
• Court: West Virginia Supreme Court
• Parties: HOPE NATURAL GAS COMPANY, a Corporation, v. WEST VIRGINIA TURNPIKE COMMISSION. C. C.

Page 630

105 S.E.2d 630

143 W.Va. 913

HOPE NATURAL GAS COMPANY, a Corporation, v. WEST VIRGINIA TURNPIKE COMMISSION.

C. C. No. 842.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 10, 1958.

Decided Nov. 18, 1958.

Rehearing Denied Feb. 6, 1959.

Syllabus by the Court.

The 'West Virginia Turnpike Commission', created by Chapter 139 of the Acts of the Legislature, 1947, as amended, is not such an agent of the State as to be immune from suit under Section 35, Article VI of the Constitution of West Virginia, which provides that 'The State of West Virginia shall never be made defendant in any court of law or equity * * *', and is liable in an action at law for damages caused by its agents and employees in the negligent construction of its turnpike; and a demurrer based upon such a claim of immunity is not sustainable.

Charles E. Anderson, Charleston, Hardin R. Harmer, Harold M. Garrett, Thomas A. White, Clarksburg, for plaintiff.

Jackson, Kelly, Holt & O'Farrell, W. T. O'Farrell, Charleston, for defendant.

W. W. Barron, Atty. Gen., Virginia Mae Brown, Asst. Atty. Gen., amici curiae on behalf of West Virginia Turnpike Commission.

Vincent V. Chaney, Charleston, amicus curiae on behalf of S. J. Groves & Sons Co.

DUCKER, Judge.

The Hope Natural Gas Company, a corporation, plaintiff, brought this action of trespass on the case, against the defendant, West Virginia Turnpike Commission, a commission created by and under the laws of the State of West Virginia, in the Circuit Court of Kanawha County, alleging damages in the sum of $35,000 resulting from the defendant's negligence in so constructing its turnpike at the point of a pipe line relocation easement as to cause slips and slides from the turnpike which destroyed plaintiff's pipe line. The defendant demurred to the plaintiff's declaration, and the circuit court sustained the demurrer and certified the questions raised thereon to this Court.

The facts as alleged by plaintiff, and which upon demurrer are considered as true, are briefly: that, as a natural gas public utility corporation, it is, and has been, engaged in the business of producing, purchasing, storing and transporting natural gas and of distributing and marketing the same to domestic, commercial and industrial consumers and other purchasers thereof in West Virginia, and that in said business it operates a pipe line partly sixteen and partly twelve inches in diameter known as its Line H-164, which is more than 3500 feet in length extending from a junction point near the town of Glasgow, Kanawha County, to the plaintiff's Stonewall Jackson Compressor Station near Chelyan in said county, and that said pipe line transports natural gas in quantities in excess of one and one-half billion cubic feet annually, on, over and through a tract containing approximately 307 acres now and formerly owned by Shonk Land Company which company granted duly recorded easement rights to plaintiff in 1925; that the defendant initiated a plan for the construction of its turnpike from Charleston to Princeton, West Virginia, and obtained from plaintiff in June 1953 the right of immediate entry upon the lands and easements of plaintiff for which defendant agreed to pay compensation to plaintiff for the rights taken and further to grant plaintiff rights of way for the plaintiff to relocate its said pipe line, and under separate utility agreements defendant agreed to reimburse plaintiff for the reasonable and necessary actual cost of removal, relocation and reconstruction of said pipe line, all in accordance with plans of relocation agreed upon between the parties, and that said pipe line relocation was in due course accomplished to the satisfaction and approval of defendant and that plaintiff was reimbursed by defendant for such removal and relocation costs; that near Glasgow plaintiff's said Line H-164 lies at the foot of a steep mountain, and after crossing the Chesapeake and Ohio Railway Company's tracks, continues over and across the Shonk tract of land up the mountainside in a general northwesterly direction and the turnpike traverses the Shonk tract in a general northerly direction crossing Line H-164 at approximately right angles and about one-fourth of the distance up the mountainside from Cabin Creek at the foot of the mountain; that the entire mountainside is steep and precipitous and that defendant was compelled to and did make excavation into the mountainside for the purpose of providing a roadbed for the turnpike, and that in doing so defendant removed large quantities of rock and earth which it deposited on the mountainside below and adjacent to the roadbed of the turnpike with the turnpike being constructed upon a bench so made by such removal and deposit; that the defendant knew that if large quantities of rock and earth were cut from the mountainside and deposited in a fill below the roadbed such earth and rock, if not properly buttressed and supported, would break away if reasonable care were not used to prevent it, and that because of the negligence of the defendant in so constructing its turnpike large quantities of earth and rock so deposited by defendant did break away under and below the paved portion of the turnpike on the downhill side thereof and such rock, earth and fill slipped and slid down upon, underneath, along and over plaintiff's pipeline H-164, covering said line fifteen to twenty feet at some points, breaking it and rendering it unfit and entirely useless for its purpose and necessitating the acquisition of additional rights of why for a relocation of and construction of a new line to serve the purpose of the line so destroyed; and that defendant is liable to plaintiff for all its damages so suffered.

The defendant's demurrer specifies four grounds, namely: '1. Defendant is an agency of the State of West Virginia. 2. The construction, repair, maintenance and upkeep of the West Virginia Turnpike constituted an essential governmental function. 3. This action is in truth and effect an action against the State of West Virginia and as such is inhibited by the Constitution of the State of West Virginia. 4. The defendant as an agency of the State of West Virginia is immune from suit.'

The Certificate of the Circuit Court sustaining the demurrer sets out in practically the same language as the demurrer certified for decision by this Court four points which are collectively contained in the decision therein holding that an action in tort seeking to recover unliquidated damages is not maintainable against the Turnpike Commission, the effect of which is to hold that the West Virginia Turnpike Commission is entitled to immunity from such suit in tort actions, either under Article VI, Section 35 of the Constitution of West Virginia or otherwise under the law as an agent of the state exercising, under sovereign power, a governmental function. Although various phases of the principles involved have been heretofore decided by this Court, the facts in such cases being in varying degrees different from those here, this case is one of somewhat novel impression for this Court.

The plaintiff's declaration states a good cause of action unless the Turnpike Commission is immune as claimed by defendant in its demurrer. The applicable provisions of the constitution and statutes are so vital to the issue that it is well to set them out here so as to show the basis for the contentions of the parties.

Section 35, Article VI of the Constitution of West Virginia, omitting the part thereof which clearly has no applicability here, is as follows:

'The State of West Virginia shall never be made defendant in any court of law or equity * * *'.

The West Virginia Turnpike Commission was created by the Acts of the Legislature of West Virginia, 1947, Chapter 139, [Michie's Code, § 1659(1) et seq.] and amendments to said original Act were made by Chapters 154, 155 and 156 of the Acts of the Legislature of West Virginia, 1955. The portions of the provisions of the twenty sections of those statutes, as amended, so far as the same are pertinent to the argument and inquiry here, and, omitting such parts of context as we think are unnecessary, are as follows:

'Section 1. Constructing and Financing Turnpike Projects.--* * * the West Virginia turnpike commission (hereinafter created) is hereby authorized and empowered to construct, maintain, repair and operate turnpike projects (as hereinafter defined) at such locations as shall be approved by the state road commission, and to issue turnpike revenue bonds of the state of West Virginia, payable solely from revenues, to pay the cost of such projects.

'Sec. 2. Credit of State Not Pledged.--Turnpike revenue bonds issued under the provisions of this act shall not be deemed to constitute a debt of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any such political subdivision, but such bonds shall be payable solely from the funds herein provided therefor from revenues. All such turnpike revenue bonds shall contain on the face thereof a statement to the effect that neither the state nor any political subdivision thereof shall be obligated to pay the same * * *.

'Sec. 3. West Virginia Turnpike Commission.--There is hereby created a commission to be known as the 'West Virginia Turnpike Commission', and by that name the commission may sue and be sued, and plead and be impleaded. The commission is hereby constituted an agency of the state, and the exercise by the commission of the powers conferred by this act in the construction, operation and maintenance of turnpike projects shall be deemed and held to be an essential governmental function of the state.

'The West Virginia turnpike commission shall consist of five members including the state road commissioner, who shall be a member ex officio [sic], and four members appointed by the governor, by and with the advice and consent of the senate. * * *

'The members of...