Sayre v. Stevens Excavating Co.

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

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.

Syllabus by the Court

1. One cannot maintain an action for damages to real property against a contractor where such contractor is proceeding in 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.

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 "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 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 Pifer avers he surveyed the Skeen's and Havlicek's properties, "which is affected by construction of" the road project in Jackson County, and that he found that "the property boundaries for said parcels were essentially as shown on the West Virginia Department of Highway plans . . . (and) that the right of way boundaries of (Parcels 12 and 13) did not go beyond their property lines." Pifer further asserted that "he checked the boundary of R. E. Sayre and Edna Sayre . . . and that the right of way line for the right of way take for the construction of Project No. . . . did not reach the boundary line of said R. E. Sayre and Edna Sayre." Pifer filed a subsequent affidavit wherein he notes an error in one of the calls in the Havlicek-Department of Highways deed. He asserts that the error is being corrected but that it does not effect the Department of Highways survey plans which he claims are correct. He further avers that "none of the 2.38 acres (the subject of this action) lies without the boundaries of (the Skeen and Havlicek parcels) and further the 2.38 acres lies totally within the boundaries of real estate acquired by the West Virginia Department of Highways by the deeds from Charles L. Havlicek and Maude E. Havlicek, his wife, and Golden Skeen, single". Pifer, in another affidavit, subsequent to those above referred to, averred that he surveyed the Sayre property and that no part of the Sayre property was involved in the take by the Department of Highways.

The trial court, taking all of the above into consideration, ruled that there was a genuine issue of material fact, namely, "whether the 2.38 acres involved here lies within or without the boundaries of the lands acquired by the Department of Highways upon and over which the defendant was authorized and directed to proceed with the construction of a public road". The court refused plaintiffs' motion for summary judgment. The defendant thereafter moved for leave to join as third party defendants, Golden Skeen, Charles L. and Maude E. Havlicek, and the Department of Highways, alleging them to be indispensable parties and that they may be liable to defendant should plaintiffs prevail. A search of the record fails to disclose any ruling on this motion.

This Court concurs in the ruling of the trial court wherein the court denied plaintiffs' motion for summary judgment. We do not agree, however, that the issue is "whether the 2.38 acres involved here lies within or without the boundaries of the lands acquired by the Department of Highways . . . " In our opinion the issue is whether the 2.38 acres, from which the rock was taken, is within the...