Lambert v. Mcdowell County Court

• Decision Date: 18 January 1927
• Docket Number: (C. C. No. 386.)
• Court: West Virginia Supreme Court
• Parties: LAMBERT. v. McDOWELL COUNTY COURT et al.

136 S.E. 507

LAMBERT.

v.McDOWELL COUNTY COURT et al.

(C. C. No. 386.)

Supreme Court of Appeals of West Virginia.

Jan. 18, 1927.

(Syllabus by the Court.)

Certified Questions from Circuit Court, McDowell County.

Trespass on the case by F. M. Lambert against the County Court of McDowell County and the State Road Commission. After sustaining a demurrer to the declaration, the trial court certified its ruling. Affirmed in part, and reversed in part.

Strother, Sale, Curd & Tucker, of Welch, for plaintiff.

G. L. Counts, of Welch, for defendants.

LIVELY, J. This is an action of trespass on the case by F. M. Lambert to recover from the county court of McDowell county and the state road commission damages sustained by him in the construction of a state road through his property. After sustaining a demurrer to the declaration, the trial court certified its ruling for review.

Plaintiff alleges in his declaration, which contains hut one count, that the defendants, acting under authority of section 13S, c. 6, Acts 1923, entered upon and took a part of his land for the building of a state road; that the road was so constructed as to leave the small portion of his land remaining practically valueless, because it is inaccessible to the public highway; that in locating the road plaintiff's outbuildings have been torn down, and his fruit and other trees uprooted and destroyed; and that water is caused to be thrown upon his land in rainy weather. Plaintiff further alleges the refusal of the county court to pay him for his land so taken, and its failure to petition the circuit court for the appointment of commissioners to ascertain his damages. For all of which the plaintiff sues for $5,000.

It will be well to bear in mind, in our consideration of the question certified, that the defendants demurred to the declaration jointly and also severally. Two main grounds are assigned for demurrer: (1) That the state road commission, a state agency, cannot be sued, and consequently the road com mission cannot be joined as a party defendant with the county court; and (2) that the county court cannot be held liable for damage done by the road commission in building and constructing a state road.

The trial court properly sustained the separate demurrer of the state road commission setting out its nonliability and consequential misjoinder, because the commission is joined as a party defendant, whereas it is not liable under the averments of the declaration. Ma-hone v. Road Commission, 99 W. Va. 397, 129 S. E. 320. But this is a defect which the road commission alone was entitled to take advantage of by demurrer, for "only the party defendant improperly joined may demur therefor, as he alone is prejudiced by such misjoinder." 15 Ency. Plead. & Prac. p. 763 and note; 6 Ency. Plead. & Prac. p. 310. Therefore, if the declaration states a cause of action against the county court, its separate demurrer and the joint demurrer of both defendants should have been overruled.

Counsel for defendants contends that the declaration is also bad as against the county court, becauseit does not allege that the road located and built was a county district road, but does allege that it is a state road. It is argued that, while the county court may possibly be liable for the price of the land taken and used for the right of way, it cannot be held liable for damages done to the remaining land by reason of the construction of the road by the state road commission.

r2] It seems clear that the count court is liable to the plaintiff, at least to the extent of reimbursing him for the right of way, even though the road is a state road. Section 31, c. 6,...