Lambert v. McDowell County Court

Decision Date18 January 1927
Docket NumberC. C. 386.
Citation136 S.E. 507,103 W.Va. 37
PartiesLAMBERT v. McDOWELL COUNTY COURT et al.
CourtWest Virginia Supreme Court

Submitted January 12, 1927.

Syllabus by the Court.

A declaration against a county court and the state road commission, charging them jointly for taking and damaging plaintiff's land in opening, grading and constructing a state road without having complied with the statute regulating such taking and damaging, and claiming damages therefor against them jointly, is demurrable, and a separate demurrer thereto by the party improperly joined should be sustained. The state road commission, being a state agency peculiarly representing the state, is not liable in such tort action.

If there be a single count in which a cause of action is stated together with other matter on which no recovery can be had and a general demurrer is interposed, it should be overruled.

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 but one count, that the defendants, acting under authority of section 138, 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 commission 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. Mahone 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, because it 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...

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6 cases
  • Stewart v. Tams
    • United States
    • Supreme Court of West Virginia
    • February 11, 1930
    ...151 S.E. 849 108 W.Va. 539 STEWART v. TAMS et al. No. 6635.Supreme Court of Appeals of West Virginia.February 11, 1930 . ... . .          Error. to Circuit Court, Wyoming County. . .          Action. by Ira P. Stewart against W. P. Tams ...1, § 87. Such is likewise the rule in actions ex. delicto. Lambert v. County Court, 103 W.Va. 37, 136. S.E. 507. But it is not the rule at ......
  • Hatcher v. Fayette County Court
    • United States
    • Supreme Court of West Virginia
    • May 22, 1934
    ...... may sue the county court for a trespass by the state road. commission in constructing or improving a state road. Lambert v. County Court, 103 W.Va. 37, 136 S.E. 507;. Kinney v. County Court, 110 W.Va. 17, 156 S.E. 748;. Carden v. County Court, 110 W.Va. 195, 157 S.E. ......
  • Hatcher v. County Court Of Fayette County, 7894.
    • United States
    • Supreme Court of West Virginia
    • May 22, 1934
    ...may sue the county court for a trespass by the state road commission in constructing or improving a state road. Lambert v. County Court, 103 W. Va. 37, 136 S. E. 507; Kinney v. County Court, 110 W. Va. 17, 156 S. E. 748; Garden v. County Court, 110 W. Va. 195, 157 S. E. 411. The error assig......
  • Kinney v. Doddridge County Court
    • United States
    • Supreme Court of West Virginia
    • January 20, 1931
    ......20] property arising through the. construction of the road are not chargeable to the county. court. Under the ruling of Lambert v. McDowell County. Court, 103 W.Va. 37, 136 S.E. 507, the state road. commission is not liable. Then who shall pay? The. Constitution of this ......
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