Monongahela Power Co. v. Shackelford

• Decision Date: 13 January 1953
• Docket Number: No. 10500,10500
• Citation: 137 W.Va. 441,73 S.E.2d 809
• Parties: MONONGAHELA POWER CO. v. SHACKELFORD et al.
• Court: West Virginia Supreme Court

Page 809

73 S.E.2d 809

137 W.Va. 441

MONONGAHELA POWER CO. v. SHACKELFORD et al.

No. 10500.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 4, 1952.

Decided Sept. 23, 1952.

Dissenting Opinion Jan. 13, 1953.

Syllabus by the Court.

1. Code, 54-1-4, providing that in eminent domain proceedings no company of internal improvement in the location or construction of its lines shall 'invade the dwelling house of any person, or any space within sixty feet thereof, without the consent of the owner * * *' does not prohibit imposition of a servitude upon a part of the curtilage situate more than sixty feet from a dwelling house.

2. Upon demurrer in a proceeding to condemn land or an easement, the petition of the condemnor must describe the land or easement sought to be appropriated with such particularity as to enable the court to determine that no more property is being appropriated than reasonably necessary for the purpose for which it is being acquired.

Wm. T. George, Sr., Philippi, Francis, L. Warder, Grafton, for plaintiffs in error.

Steptoe & Johnson, Chesney M. Carney, and Eugene G. Eason, Clarksburg, Ernest R. Bell, Fairmont, O. E. Wyckoff, Grafton, for defendant in error.

GIVEN, Judge.

The Monongahela Power Company seeks to condemn an easement for the construction and operation of an electric transmission line across three adjacent parcels of land owned by I. T. Shackelford and others, situated in Taylor County. The parcels contain 44, 15 and 2.75 acres respectively. The petition describes each tract by metes and bounds and describes the easement sought to be condemned by definitely defining the center line thereof. The center line crosses over a water cistern furnishing water to one of two dwellings upon the premises, and is ninety-five feet from the nearest dwelling. No width of the easement or of any part of the tracts over which the easement is sought is indicated in the petition. In addition to the easement, condemnor asks that it be given rights of ingress and egress over the property of condemnees for the purpose of constructing and maintaining the proposed line, including the right to trim or cut trees that would probably interfere with the construction or operation of the line. Condemnees filed a demurrer to the petition, contending that petitioner failed to describe with sufficient certainty the easement sought to be taken; that the petition does not allege that the easement sought to be taken would not include a dwelling house, and would not invade land within sixty feet of a dwelling house; and that the condemnation of land within sixty feet of a dwelling house is prohibited by statute. At the time of filing the petition condemnor tendered a bond, conditioned upon payment to condemnees of just compensation for the easement sought to be taken, and moved the court to enter an order permitting the condemnor, upon approval of the surety on the bond, to enter upon and use the easement sought to be condemned. The court required that the penalty of the bond be increased, and a new bond tendered by condemnor, and the surety thereon, were approved by the court. The demurrer to the petition was sustained 'in so far as it related to the failure of petitioner to aver the proposed right of way does not invade any dwelling house of defendants situate on the lands described in the petition, or any space within sixty feet thereof', and overruled the demurrer 'as to the other points thereof * * *.'

An amended petition was then filed by condemnor, which was to the same effect as the original petition, except that it contained a further allegation that 'applicant will not invade the dwelling house of any of the defendants or any other persons, or any space within sixty feet of any dwelling house on the land of the defendants.' Condemnees demurred to the amended petition, raising questions hereinafter considered, and filed an answer thereto. For reasons not material here, the court sustained a demurrer as to each paragraph of the answer, except Paragraphs 6 and 8. Paragraph 6 charges, in effect, that the condemnees are owners of two dwelling houses situated upon the forty-four acre tract; that there exists a water cistern upon said land which furnishes water to one of the dwellings; that the center line of the proposed easement crosses the cistern, and that condemnees have not consented to the invasion of the dwelling, or the space within sixty feet thereof. Paragraph 8 charges that the proposed easement 'being of unlimited width or depth, would invade the dwelling houses of these respondents and the restricted area of sixty feet surrounding such dwelling houses.' If the facts set out in Paragraphs 6 and 8 are true, then the right of condemnor to acquire part of the property proposed to be taken is prohibited by provisions of Code, 54-1-4, as amended. The court heard evidence relating to the contention that the taking of the proposed easement would constitute the taking or invasion of the dwelling house and of the space within sixty feet of the dwelling house. Before the taking of any evidence, petitioner moved the court that the order to be entered provide that 'no servitude at all' be imposed upon the water cistern. After hearing evidence offered by the parties, the court found that the easement proposed to be taken 'will not invade the dwelling houses of any of the defendants, or any space within sixty feet thereof, and that the cistern which furnishes water to one of the dwelling houses on said land is not a part of the said dwelling house, * * *.'

On February 15, 1952, the court entered an order authorizing petitioner to enter upon and take possession of the easement sought to be condemned, particularly describing each of the three tracts of land and the center line of the proposed easement. The order further provided, in effect, that the power line should consist of three conducting wires and two ground wires, and such poles, anchors, guys and other devices necessary or convenient in the maintenance or operation of the line; that the wires have a minimum clearance above the ground of twenty-five feet, and to be placed on crossarms of not more than thirty-two feet in length; that the applicant have reasonable and necessary rights of ingress and egress, with the right to cut and remove possible falling timber and to clear the easement of undergrowth, limbs or trees that would possibly interfere with the operation of the line; that applicant did not desire to impose any servitude upon the water cistern or the 'coal, oil and gas * * * together with the mining rights and privileges thereunto belonging, and that the coal, oil and gas and the mining rights and privileges * * * shall not be taken in consideration by the commissioners' in fixing just compensation; that the landowners would not be permitted to so maintain the water cistern as to constitute a hazard to the line; and that the landowners would not be permitted 'to erect or maintain any buildings or structures underneath said wires or so close thereto as to create a hazard or danger to said electric power line * * *.' By the same order condemnation commissioners were appointed and, after due notice and hearing, an award was returned by the commissioners in the amount of $750.00. This Court granted condemnees a writ of error and supersedeas.

Code, 54-1-4, as amended, with the exception of certain situations not applicable here, prohibits any company of internal improvement, in locating and constructing its lines, from invading 'the dwelling house of any person, or any space within sixty feet thereof, without the consent of the owner, * * *.' The contention of condemnees that the taking of the easement constitutes an invasion of the dwelling house is principally based upon the premise that the water cistern is a part of the curtilage and therefore included within the term 'dwelling house'. We think there is no merit in the contention. It is not disputed that the cistern is more than sixty feet from the nearest part of the dwelling. Ephriam Merle Shackelford, one of the condemnees, testified that the cistern was 'better than two hundred feet' from the dwelling. The statute, we think, makes it clear that any property not within sixty feet of a dwelling house, whether a part of the curtilage or not, may be condemned for public improvements. The question, therefore, of whether the water cistern is part of the curtilage is not controlling. The test, in the circumstances, is whether any part of the cistern is within the sixty foot space adjacent to the dwelling. Cases relied upon by condemnees, such as Gilbert v. McCreary, 87 W.Va. 56, 104 S.E. 273, 112 A.L.R. 1172, relate to situations where the conveyance of a dwelling house for use as such necessarily implies the inclusion in the conveyance of the land under the dwelling or the curtilage necessary for the enjoyment and use of the dwelling for the purposes intended. The rule has no application here.

Condemnees further contend that there is a taking or invasion of the dwelling and the space within sixty feet thereof, inasmuch as the easement sought is unlimited in width. This contention will be sufficiently dealt with in the consideration of the following question.

Should the easement sought to be condemned be limited to a certain width, or is it sufficient to describe the easement by merely defining a center line? As above indicated, pleadings and orders herein particularly define the so called center line of the proposed easement, but give no width or outside boundary lines thereof, and in no way limit the extent of the easement or designate the quantity of land over which the proposed easement is sought. Condemnor contends that such facts need not be alleged or shown by evidence, and relies upon Carnegie Natural Gas Company v. Swiger, 72 W.Va. 557, 79 S.E. 3, 46 L.R.A., N.S., 1073; West Virginia & Maryland Power Co. v. Racoon Valley Coal Co., 93 W.Va. 505, 117 S.E. 891; United...