Mr. Klean Car Wash, Inc. v. Ritchie

• Citation: 161 W.Va. 615,244 S.E.2d 553
• Decision Date: 06 June 1978
• Docket Number: No. 13778,13778
• Parties: MR. KLEAN CAR WASH, INC. v. William S. RITCHIE, Jr., Commissioner, etc.
• Court: West Virginia Supreme Court

Page 553

244 S.E.2d 553

161 W.Va. 615

MR. KLEAN CAR WASH, INC. v. William S. RITCHIE, Jr., Commissioner, etc.

No. 13778.

Supreme Court of Appeals of West Virginia.

June 6, 1978.

Syllabus by the Court

1. "The sole discretion to determine what quantity of land is necessary for a public use is vested in the agency resorting to eminent domain, which discretion will not be interfered with by the courts unless it has been abused." Syllabus Point 2, State v. Bouchelle, 137 W.Va. 572, 73 S.E.2d 432 (1952).

2. "Any corporation or body politic authorized to acquire private property for public use pursuant to the provisions of Chapter 54, Code, 1931, as amended, may acquire an estate in fee simple, or any lesser estate therein." Syllabus Point 4, Board of Education v. Shafer, 147 W.Va. 15, 124 S.E.2d 334 (1962).

3. "Where an entity authorized authorized by law to take property for public use seeks to acquire a fee simple title to a parcel of land, it is entitled to an assessment of all damages arising from such taking in a single proceeding, and, to accomplish this purpose, all persons who own an interest or estate in such parcel of land are necessary parties to the proceeding." Syllabus Point 3, Department of Natural Resources v. Cooper, 152 W.Va. 309, 162 S.E.2d 281 (1968).

4. Where buildings or fixtures are attached to the real estate and would pass with a conveyance of the land, as between landlord and tenant, it may be agreed that they remain personal property and may be removed by the tenant. In the event of eminent domain, the condemnor must treat such buildings and fixtures as real estate in determining the total award, but in apportioning the award, in the absence of a special agreement between the landlord and tenant, they are treated as personal property and credited to the tenant.

5. "It is a general rule that a litigant who enforces, or otherwise accepts the benefit of a judgment, order, or decree cannot afterward have it reviewed for error, or deny the authority which granted it." Syllabus, Chesapeake & Ohio Ry. v. Lane, 113 W.Va. 51, 166 S.E. 698 (1932). (Emphasis in original)

W. Robert Carr, John R. Frazier, Princeton, for plaintiff in error.

John H. Gorman, John F. Rist, III, Beckley, for defendant in error.

MILLER, Justice:

Appellant, the Commissioner of the West Virginia Department of Highways (herein termed State), complains of an order entered by the Circuit Court of Raleigh County granting a writ of mandamus in favor of Mr. Klean Car Wash, Inc. (herein called Mr. Klean). The order, dated November 2, 1975, requires the appellant to institute condemnation proceedings against appellee to determine the damages the corporation allegedly sustained when the State enlarged a highway onto property it leased.

The State contends the trial court erred in granting the writ since the question of damage to Mr. Klean's leasehold interest had been determined in a previous condemnation proceeding in the Circuit Court of Raleigh County. We disagree and affirm the Circuit Court's order.

In March of 1973 the State filed an application for condemnation in connection with certain improvements it planned to make on Route 21 in Raleigh County. The application named the following defendants: Zetta L. McDaniel; Mr. Klean Car Wash, Inc. (formerly BMB, Inc., a Corporation); Donald D. Hodson; George D. Zamias; Appalachian Power Company, a Corporation; Columbia Gas of West Virginia, Inc., a Corporation; Beckley Water Company, a Corporation; Peake Petroleum Company, a Corporation; Chesapeake & Potomac Telephone Company, a Corporation; and North Beckley Public Service District.

In the application, the State alleged that the title to the property was in the name of Zetta L. McDaniel. The particular area to be taken was described by metes and bounds description and a reference to the appropriate deed books where Zetta L. McDaniel had acquired the title.

After the filing of the application, the State, pursuant to W.Va. Code, 54-2-14a, tendered to the court the sum of $61,400, which it claimed was the fair market value of the property sought to be condemned. Subsequently, the landowner, Zetta L. McDaniel, by a written motion to all parties, requested the court to permit her to receive the entire sum of $61,400 on the basis that none of the other defendants had any legal right or claim to such sum.

The matter came on for hearing on June 18, 1973, before the Circuit Court of Raleigh County. The landowner and Mr. Klean were represented by counsel. The State, as the record indicates, had through counsel earlier advised the court that it was not interested in the particular motion and would not appear.

At that hearing, a lease between Zetta L. McDaniel and Mr. Klean was introduced which contained two pertinent provisions. The first was a provision that permitted the lessee to install improvements upon the property, such as buildings, gasoline pumps, tanks, lights, and vacuum cleaners, and further provided that such installations remained the personal property of the lessee with the right to remove them within thirty days after termination of the lease.

The second provision related to condemnation and provided that in such event, if condemnation rendered the property not reasonably suitable for its business purposes, the lessee could terminate the lease. However, the lessee retained a right of action for all damages which accrued to it by reason of any condemnation of the demised premises.

The condemnation paragraph concluded with the following provisions as to the lessor's rights: "It being expressly understood, however, that condemnation proceeds for the value of the land of the Lessor taken by the condemnation or damages to such land of Lessor not taken shall belong to the Lessor."

Only two witnesses testified at the hearing. Testimony on behalf of the landowner was essentially proof of the lease and the fact that the highway project would take approximately 23 percent of the leasehold interest. It is not disputed from the record that the landowner owned 22 acres abutting Route 21, that the highway project was taking a 75-foot strip along the entire frontage of the property, and the leasehold interest consisted of approximately two acres.

Appellee's witness, the President of Mr. Klean, testified that the 75-foot strip being taken from the leasehold property would encompass certain signs, fixtures, vacuum cleaners affixed to the property, and would probably necessitate the relocation of the building on the leased property because of its close proximity to the property acquired by the State.

The trial court, after taking the matter under advisement, issued a written opinion in which it concluded that the State's application for condemnation was against only the interest of the landowner, Zetta L. McDaniel, and that consequently, she was entitled to the entire sum of $61,400. Trial court, in its memorandum, expressly stated as to the appellee:

"This is not to say that Mr. Klean Car Wash does or does not have an interest in the real estate leased from Zetta L. McDaniel. I do not decide that point. All I am holding is that such interest, if any, is not being condemned in this proceeding under the existing pleadings."

Pursuant to the court's written opinion, an order was entered on June 22, 1973, dismissing all of the other defendants except the landowner from the condemnation action. The action then proceeded to a Commissioner's hearing on April 30, 1974, where the Commissioners awarded $61,400 to the landowner, plus interest, and by an order entered on June 17, 1974, this amount was paid and the condemnation action was dismissed.

Thereafter, on April 22, 1975, Mr. Klean instituted its petition for a writ of mandamus seeking to compel the Commissioner to commence a condemnation proceeding to reimburse it for damages done to its leasehold, fixtures and building by virtue of the highway improvements.

Initially, it should be made clear that the State does not contend that it was unaware of the basis of the trial court's action in dismissing the appellee from the eminent domain proceeding. ¹ Rather, the State's position is that the value of...