Liberty Cent. Trust Co. v. Greenbrier College for Women

• Citation: 50 F.2d 424
• Decision Date: 09 January 1931
• Docket Number: No. 2786.,2786.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: LIBERTY CENT. TRUST CO. et al. v. GREENBRIER COLLEGE FOR WOMEN et al.

50 F.2d 424 (1931)

LIBERTY CENT. TRUST CO. et al. v. GREENBRIER COLLEGE FOR WOMEN et al.

No. 2786.

District Court, S. D. West Virginia, at Charleston.

January 9, 1931.

W. C. Revercomb, of Charleston, W. Va., and S. M. Austin and J. S. McWhorter, both of Lewisburg, W. Va., for complainants.

H. B. Lee and W. Elliott Nefflen, both of Charleston, W. Va., R. A. Blessing, of Point Pleasant, W. Va., and J. H. White, of Lewisburg, W. Va., for defendants.

Before NORTHCOTT, Circuit Judge, and McCLINTIC and GLENN, District Judges.

Findings of Fact.

NORTHCOTT, Circuit Judge.

This is a suit in equity seeking to enjoin the state road commission of West Virginia, a corporation, the county court of Greenbrier county, a corporation, and Echols Bros., Incorporated, from building a road over and on certain real estate situated in Greenbrier county, W. Va. The legal title to this real estate is vested in the Greenbrier College for Women, a corporation.

Plaintiffs are citizens of the state of Missouri, and are trustees under a deed of trust, in which the real estate in question was conveyed to them in trust to secure the payment of bonds issued upon said real estate in the amount of $167,000. The property conveyed by the deed of trust is not sufficient in present value to pay the said sum of $167,000. The state road commission was proposing, under the statutes of West Virginia, to at once enter upon and take possession of the right of way over the real estate in question, pending condemnation proceedings. The proposed road is a part of the state road system of West Virginia and a part of the road across the entire state, known as the "Midland Trail," itself a national road. It is contended by the plaintiffs that the statutes under which the state road commission is acting are unconstitutional, as being in violation of the "due process" clause of the Fourteenth Amendment of the Constitution of the United States, and also in violation of the "just compensation" clause of section 9 of article 3 of the Constitution of West Virginia.

The suit was brought in the District Court of the United States for the Southern District of West Virginia, the judge of which court granted a temporary restraining order, and proceeded to convene a three-judge court under section 266 of the Judicial Code as amended (section 380, title 28, USCA).

Under date of August 6, 1930, a written notice was addressed to Judge C. W. Campbell, president of the board of trustees of the Greenbrier College for Women, stating that the state road commission and its contractors and agents were entering upon the lands of the Greenbrier College for Women for the purpose of constructing a state road, and that the county court would apply within sixty days from the service of the notice to the circuit court of Greenbrier county for the appointment of commissioners to assess the damages to the lands. This notice was signed by the county court of Greenbrier county by Julius K. Monroe, county road engineer. At the time of the serving of this notice, the county court of Greenbrier county had entered no order of record authorizing such proceeding by the county road engineer. The judge of the District Court, on September 6, 1930, granted the restraining order prayed for, and the matter was set down for hearing on September 12, 1930. On that date a second restraining order was issued, and the cause again set down for hearing on September 20, 1930, at which time an amended bill was tendered by the plaintiffs, and the defendants filed a written motion to dismiss the original and amended bills, which motion was taken under advisement by the court. The court continued the restraining order in force, and in October, 1930, after filing a written memorandum, amended the order so as to permit the state road commission, the county court of Greenbrier county, and Echols Bros., to proceed with the building of said road, according to law.

Thereafter the state road commission requested the county court of Greenbrier county, in accordance with the state statutes, to furnish the right of way through the grounds of the Greenbrier College for Women. The county court of Greenbrier county refused to furnish such right of way by an order entered, and thereupon the state road commission, acting under section 31 of chapter 6, of the Acts of West Virginia Legislature of 1923, served a notice on the president of Greenbrier College for Women that they were going to enter upon the lands in question and build the road. The plaintiff thereupon filed their supplemental bill, and asked for an injunction restraining the state road commission from further entering upon the lands of Greenbrier College for Women. The court granted the restraining order until the matter could be heard before the court as at present constituted.

Conclusions of Law.

Section 31 of chapter 6 of the Acts of West Virginia Legislature of 1923 reads as follows:

"Sec. 31. Whenever it shall be necessary from any cause to acquire any lands for the purpose of constructing, widening, straightening, grading 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.

"If any county court fails or refuses to obtain any right of way necessary for the purpose of constructing, widening, straightening, grading or altering any state road within thirty days after being requested so to do by the state road commission, then the state road commission may secure such right of way in the manner hereinabove provided and pay for the same out of the state road fund, which fund shall be reimbursed by the county court of the county in which such right of way is obtained. All claims for reimbursement for right of way expenditures incurred by the state road commission subsequent to April twenty-first, one thousand nine hundred and twenty-one, shall be filed by the commission with the clerk of the county court of the county where such expenditures are made, which claims shall be audited and paid as other claims against the county. Such claims shall be payable to the state road commission and returned by it to the state road fund."

Section 138 of chapter 6 of the Acts of West Virginia Legislature of 1923, under which the state road commission proceeded to act upon refusal of the county court of Greenbrier county, reads as follows:

Sec. 138. Establishment of County — District Roads; Compensation to Landowners.

"Upon hearing the parties interested in an application for a county-district road, said county court shall decide for or against undertaking the proposed work on behalf of the county. If it decides in favor of the same and the compensation for damages, if any, to be paid to any proprietor or tenant be not fixed by agreement, it shall order proceedings to be instituted and presented in its corporate name in the circuit court of the county, pursuant to chapter forty-two of the code of West Virginia, to ascertain what will be a just compensation, if any, to each proprietor or tenant for the land proposed to be taken, and the said court shall lay a sufficient levy for that purpose. But when such compensation, if any, shall be so ascertained, it shall be at the option of the county court to pay the same or to abandon the proposed undertaking. If it decides to pay the same, it shall lay a sufficient levy for that purpose as provided in this act. In any case where the petition is for the establishment or alteration of a county-district road leading from the main public road or roads, the court may refuse to undertake the proposed work, unless the petitioner or some one for him, shall deposit with said county court a sufficient sum to pay all damages and costs sustained by reason of the establishment or alteration of such road. In such case, if it seems proper so to do, the court may establish any such road, upon conditions that the petitioner shall pay all costs and damages as aforesaid, and make and keep in repair such road, and erect and maintain in good repair one or more gates across such road where the road passes through a fence or fences, as is provided in section one hundred and sixty-nine of this act; and the court may also impose upon such petitioner, his heirs or assigns, and upon the public such other conditions in reference to such road as the court may deem just. In the event that any of the conditions, so imposed by the court are not fully complied with, the court at any time, after giving at least sixty days' notice to the public and to the petitioner, his heirs or assigns, in such manner as the court may prescribe, may discontinue or abandon such road.

"But the court, instead of proceeding in the manner hereinbefore provided in this section, is authorized to enter upon any lands, other than those prohibited by law, and locate and build said roads. Within sixty days after such entry the county court shall petition the circuit court to nominate thirteen freeholders, and the said circuit court, or the judge thereof in vacation, shall nominate, within thirty days after the filing of such petition, thirteen freeholders, of whom the county court shall strike off four and the property owners or their representatives, or such of them as appear, shall strike off four, and after eight names are stricken from the list the remaining five shall be commissioners appointed to assess the damages hereinafter provided. But where there is no appearance for the property owners, or if they appear and do not...