Sayre v. Stevens Excavating Co., No. 13986

• Court: Supreme Court of West Virginia
• Writing for the Court: CAPLAN
• Citation: 256 S.E.2d 571,163 W.Va. 324
• Parties: R. E. SAYRE and Edna Sayre v. STEVENS EXCAVATING COMPANY.
• Decision Date: 03 July 1979
• Docket Number: No. 13986

Page 571

256 S.E.2d 571 163 W.Va. 324 R. E. SAYRE and Edna Sayre
v.
STEVENS EXCAVATING COMPANY. No. 13986. Supreme Court of Appeals of West Virginia. July 3, 1979.

Page 572

Syllabus by the Court

1. One cannot maintain an action for damages to real property against a contractor where such contractor is proceeding in [163 W.Va. 325] accordance with plans furnished by the State Department of Highways that show that the state has acquired a right of way over the disputed property.

2. "In an action for trespass brought against a private contractor for damage to real property occasioned while the contractor is engaged in the construction of a public facility under contract with the State, it must be shown that the contractor independently committed an actionable trespass, i. e., that he acted intentionally, negligently, or employed a dangerous instrumentality, in order that the property owners may recover. Point 2, Syllabus, Bailey v. S. J. Groves & Sons Co., 1976 (230 S.E.2d 267)."

3. " 'Where (in a trial by jury) there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested so to do.' Point 3, Syllabus, State v. Foley, 128 W.Va. 166, 35 S.E.2d 854 (1945)." Point 2, Syllabus, McMillen v. Dettore, (1978) (242 S.E.2d 459).

Larry L. Skeen, Ripley, for appellant.

Oliver D. Kessel, Ripley, for appellees.

CAPLAN, Chief Justice:

Plaintiffs, R. E. Sayre and Edna Sayre, in October 1975, filed their complaint in the Circuit Court of Jackson County, charging Stevens Excavating Company, the defendant, with wilfully, unlawfully and without permission of the owners, entering in, upon and across the lands of plaintiffs, destroying a line fence, taking and carrying away large quantities of rock, dirt, timber, etc., all to the great damage of plaintiffs. Plaintiffs asked for compensatory and punitive damages.

[163 W.Va. 326] Defendant moved to dismiss the action and answered. In its motion to dismiss defendant asserted that: 1) the complaint failed to state a claim against defendant; 2) the court lacked jurisdiction of the subject matter and over the defendant; 3) the action was barred by the statute of limitations; 4) the action was barred by laches and estoppel; and 5) that neither it nor any of its agents or employees illegally entered upon plaintiffs' land and averred that any entry made by defendant was under authority of law. In the answer, defendant asserted that it was without sufficient information to form a belief as to the truthfulness of the allegations contained in the complaint and demanded strict proof thereof.

After interrogatories were submitted and answered, plaintiffs moved for summary judgment asking the court to adjudicate

Page 573

"the location of the property line of the plaintiffs." The affidavit of plaintiff R. E. Sayre was submitted in support of the motion. The defendant filed a motion wherein the court was asked to dismiss and discharge the complaint because even if the court were to find that plaintiffs' land had in fact been "entered upon by the West Virginia Department of Highways and appropriated for the construction of a public highway, nevertheless the plaintiffs sole and exclusive remedy is to institute a petition seeking a writ of mandamus" against the State to require it to institute an eminent domain proceeding against the plaintiffs in order to resolve plaintiffs' claim of title to the subject property. Defendant, in the alternative, moved to strike and dismiss that portion of plaintiffs' complaint seeking exemplary and/or punitive damages on the ground that even if plaintiffs do in fact prove ownership of the land in question, the entry by defendant and its employees was without malice and under a reasonable mistake of fact.

Defendant filed an answer to plaintiffs' motion for summary judgment and moved to bring into this proceeding, as third party defendants, Golden Skeen and Charles L. and Maude E. Havlicek, persons who allegedly conveyed the subject property to the state. Affidavits of Michael L. Norman, a right of way agent for the West [163 W.Va. 327] Virginia Department of Highways and Pearley D. Pifer, a licensed surveyor for the Department of Highways, were submitted with the defendants' answer. In his affidavit, filed in support of the defendants' answer to plaintiffs' motion for summary judgment, Norman avers that the Department of Highways acquired the subject realty from Golden Skeen and Charles L. and Maude E. Havlicek. The affidavit of...