Mingo County Court v. Chattaroy Coal Co.
| Decision Date | 13 March 1928 |
| Docket Number | 6042. |
| Citation | 142 S.E. 430,105 W.Va. 321 |
| Parties | COUNTY COURT OF MINGO COUNTY v. CHATTAROY COAL CO. et al. |
| Court | West Virginia Supreme Court |
Submitted March 6, 1928.
Syllabus by the Court.
In condemnation proceedings, courts will rarely set aside verdicts on the ground that the award of compensation for the land taken and damages assessed for injury to the residue is insufficient or is too great, where there is a sharp conflict in the evidence as to the amount of compensation and damage if any, and the verdict is founded on any reasonable view of the conflicting evidence, strengthened by the jury's view of the property as affected by the public improvement.
Under chapter 29, § 115, Code, the last assessed value of the land taken by condemnation may be used as evidence of its value, where the assessment is limited to the particular property involved in the proceeding.
In a condemnation suit, evidence of price paid by the condemnor for land similarly situated is admissible if voluntarily paid. But if paid in order to compromise a suit begun or in good faith about to be instituted, or the price paid included values other than the land itself, the evidence of the amount paid is not admissible.
Where the evidence in a condemnation suit is in sharp conflict over the necessity for the erection of a retaining wall to protect a portion of the residue of the land condemned, it is error to instruct the jury to disregard all evidence relating to retaining walls, if they believe all necessary walls have been erected or will be erected in the future by the condemnor. Under the evidence in this case such instruction is misleading, and may have taken from the jury consideration of a proper element of damage.
Interrogatories to the jury which do not raise material issues, and which if answered would not be controlling upon the verdict the jury may return, may be refused in the discretion of the trial court.
Error to Circuit Court, Mingo County.
Two suits by the County Court of Mingo County against the Chattaroy Coal Company and others to condemn land to widen a highway, consolidated for trial. Judgments awarding less than it asked, and the named defendant brings error. Judgments reversed, verdict set aside, and a new trial awarded.
Wade H Bronson and J. B. Straton, both of Williamson, and Strother Sale, Curd & Tucker, of Welch, for plaintiff in error.
G. W. Crawford and Lafe Chafin, both of Williamson, for defendant in error.
These two condemnation suits were consolidated and tried before a jury, which rendered separate verdicts for the damage done to the landowner for the land taken, and damages to the residue respecting two tracts of land designated as tract No. 1 and tract No. 2. It appears that the county road through defendant's two tracts, being a 30-foot right of way with a traveled way of 18 feet wide, was taken over by the state road commission as a state road, and it became necessary to widen it to the width of a state road, and also widen the traveled way 5 feet on each side, making a traveled way of 28 feet in width. Under the statute the road commission proceeded, by its contractor, to widen the road, and the county court later instituted these two suits to condemn the strips on each side of the old county road necessary for the state road and its proper construction. Commissioners were appointed, and they reported compensation and damages to tract No. 1, out of which 1.68 acres was taken, at $3,050, and compensation and damages to tract No. 2, out of which 2.9 acres was taken, at $5,062. Tract No. 1 was owned in fee by defendant coal company, and tract No. 2 was held by it under lease for mining coal. Defendant coal company, not being satisfied with the damages assessed by the commissioners, demanded a jury, which rendered a verdict of $1,400 for compensation and damage to tract No. 1, and $2,760 for tract No. 2. From the judgments entered the coal company prosecutes error, alleging: (1) That the verdicts are contrary to the law and evidence, the damages being grossly inadequate; (2) that the court erroneously permitted plaintiff to show the assessed value of the property; (3) that the court erred in not permitting it to show that plaintiff had paid a certain price for similar land; (4) that the court improperly instructed the jury at instance of plaintiff; and (5) that the court refused interrogatories to be answered by the jury, propounded and offered by defendant.
These assignments will be considered in the order stated. It appears that the coal company's land, owned and leased, was rough mountain land underlaid with coal in various seams, and extended down the mountain side to the right of way of the Norfolk & Western Railway Company, which closely paralleled Tug river running through those mountains. The old county road was located along the hillside in the same general direction of the railroad, and through the lands of defendant on a higher elevation than the railroad. Defendant's tipple was over the old road, and at least one support thereof was in the 30-foot right of way. A spur track from the railroad ran under the tipple and for some distance paralleled the county road, but at a much lower elevation. Damages are claimed because of dirt, rocks, and débris thrown over the bank onto this spur track. At another point on tract No. 2 a road led down from the old county road to a side track at which defendant unloaded from railroad cars supplies for its mine, and it is claimed that this road was destroyed as well as the unloading space near the side track, for which large damages are claimed. At another point on tract No. 1 a road led up from the old county road as a way of ingress and egress to several miners' houses located on the hillside above the road, and damages are claimed for alleged destruction to this way. It appears that many of the miners' houses on both tracts were located along the old road in close proximity, including the manager's house and the boarding house, and three houses were torn down and destroyed, three small houses were moved to a new location between the road and the railroad, and nine small miners' houses located between the road and the railroad were set back to give room for the widening of the road, at the cost of plaintiff. The foreman's house and company boarding house were not damaged except by taking land in front of them and bringing the road nearer to them. Damages are claimed because of a slide on the mountain side near the incline, which it is asserted may damage the incline and tipple and its appurtenances. Other damages are claimed for alleged impairment of a garage or so, two or three apple trees, service pipes, and other lines. It is claimed by defendant that retaining walls will have to be built by it to properly protect its miners' houses from dirt and silt, one wall estimated at a cost of $10,000, and others to protect its supply and refuse tracks from slides and the like at a cost of $20,000. Some idea of the situation of defendant's property and the damages claimed may be gleaned from the above statement without further detail. The controversy is over the value of the land actually taken, and the damages to the residue of the property as above set out in the important details.
As is usual in cases of this character the opinion of the witnesses as to the value of the land and damage to the residue is widely different. Defendant's superintendent estimates the damages to both tracts, including the value of the land taken, is in the neighborhood of $100,000, while its other witnesses make lower estimates. The coal company contends that the lowest estimate which could be made from its testimony as to the value of the land and damages to the residue of tract No. 1 is $17,987, and that the value of the land taken and damages to the residue of tract No. 2 is $41,315, making in all $59,302, and that, inasmuch as the jury has awarded the total damage at $4,160, it is reasonably conclusive that the verdict reflects passion, prejudice, or some ulterior motive on the part of the jury. There is a sharp conflict in the evidence as to the value of the land as well as to the items of damage above claimed. To illustrate the wide divergence of opinion as to the value of the land taken, Wood, the superintendent, says that he would place the value of both tracts at $12,000, while some of his witnesses value the 1.68 acres in tract No. 1 at $1,092, and the value of the 2.9 acres in tract No. 2 at $2,900, estimating the land at $1,000 per acre. Wood says that the 2.9 acres is worth $10,000. One witness for the county court placed the value of the land taken at not over $300, and there was much evidence to the effect that Wood had agreed to fix the value of the land taken at $2,000, if the county court would pay for certain damages claimed by him to the residue. There was also evidence from the assessor and from the land books and perhaps a report made by the coal company for the purposes of taxation that the land which...
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