Mahone v. State Rd. Comm'n

• Decision Date: 08 September 1925
• Docket Number: (C. C. No. 341.)
• Citation: 129 S.E. 320
• Court: West Virginia Supreme Court
• Parties: MAHONE. v. STATE ROAD COMMISSION et al.

129 S.E. 320

MAHONE.

v.STATE ROAD COMMISSION et al.

(C. C. No. 341.)

Supreme Court of Appeals of West Virginia.

Sept. 8, 1925.

(Syllabus by the Court.)

Questions Certified from Circuit Court, Wayne County.

Action by W. F. Mahone against the State Road Commission and others. The court sustained a demurrer to plaintiff's declaration, and certified questions to the Supreme Court of Appeals. Affirmed in part, and reversed in part.

William T. Lovins, of Huntington, for plaintiff.

C. W. Ferguson, of Wayne, for defendants.

HATCHER, J. This is a certified case from the circuit court of Wayne county. The declaration consists of four counts. The first count charges that the state road commission of West Virginia, a corporation, the county court of Wayne county, a corporation, and C. E. Price, were engaged in the construction of a "certain public highway, " commonly known as the Tug river highway in said county, "at or near" a parcel of land owned by the plaintiff; that it was the duty of the defendants to provide the land of the plaintiff with lateral support; that they entered upon a "certain disused or abandoned portion of the county road adjacent to the land of the plaintiff" and there negligently and improperly made a large excavation; and that, by reason of such excavation being below the level of the plaintiff's land, the plaintiff's land slipped, was broken, and rendered useless to the plaintiff, whereby he sustained $5,000 damages.

The second, third, and fourth counts contained the same allegations as the first count, except that the second count charges that the road was being constructed by the state road commission of West Virginia, a corporation, the third count charges that the road was being constructed by the county court of Wayne county, a corporation, and the fourth count charges that the highway was being constructed by C. E. Price. The circuit court sustained a demurrer to the declaration and to each count thereof, and on motion of the parties certified the following questions to this court:

"First. Can the state road commission of West Virginia be sued upon the grounds set forth in the declaration herein?

"Second Is the declaration herein sufficient in law?

"Third. Can the joint defendants herein be declared against separately as in the second, third, and fourth counts of the declaration herein?"

1. By virtue of section 35, art 6, of the Constitution, an individual has no right of action against the state. He has no greater right against an agency of the state to which it has delegated performance of certain of its duties. The state road commission is such an agency;...