Shaffer v. West Virginia Dept. of Transp.

• Decision Date: 01 December 2000
• Docket Number: No. 27446.,27446.
• Citation: 208 W.Va. 673,542 S.E.2d 836
• Court: West Virginia Supreme Court
• Parties: Verla SHAFFER, Plaintiff Below, Appellant, v. WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Defendant Below, Appellee.

542 S.E.2d 836

208 W.Va. 673

Verla SHAFFER, Plaintiff Below, Appellant, v. WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Defendant Below, Appellee.

No. 27446.

Supreme Court of Appeals of West Virginia.

Submitted September 19, 2000.

Decided December 1, 2000.

Kathleen T. Pettigrew, David L. White, Masters & Taylor, L.C., Charleston, for the Appellant.

Joseph M. Brown, Parkersburg, for the Appellee.

PER CURIAM.

Ms. Shaffer appeals an order of the Circuit Court of Jackson County that dismissed her complaint seeking a writ of mandamus to compel the West Virginia Department of Transportation, Division of Highways, to institute eminent domain proceedings for the purpose of ascertaining the damages, if any, caused to her property as a result of the construction of a storm water drainage system to serve the highways in the area of her home. We find that the circuit court erred in dismissing her complaint. Consequently, we reverse and remand for additional proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

It is undisputed that in 1997, the West Virginia Department of Transportation, Division of Highways, appellee herein and defendant below (hereinafter "DOH"), constructed storm water drainage ditches and culverts along Linden Lane and its cross streets in Evans, Jackson County, West Virginia. Verla Shaffer, appellant herein and plaintiff below (hereinafter "Ms. Shaffer"), owns real property located at 112 Linden Lane. According to Ms. Shaffer, the drainage system for the Linden Lane area includes "drainage ditches and culverts along Linden Lane and its cross streets which gather water runoff from Linden Lane and the surrounding area and discharge it into several ditches running... in front of, across the street from, and perpendicular to" her property and home.

Ms. Shaffer avers that during a rainstorm on our about June 2, 1997, which was within one week of the completion of the Linden Lane area drainage system, Ms. Shaffer's property, home, and garage were flooded.¹ According to Ms. Shaffer, this flooding caused damage to her home, yard, garage and numerous items of personal property. Ms. Shaffer contends that this flooding was caused when the ditches and culverts on Linden Lane and its cross streets overflowed during the rainstorm discharging large volumes of water onto her property. She further asserts that the ditches and culverts have continued to periodically overflow and discharge large volumes of water onto her property, thereby repeatedly and continuously damaging her real and personal property. Prior to the DOH's construction of the drainage system in the Linden Lane area, Ms. Shaffer states, she did not have a flooding problem.

Ms. Shaffer maintains that, after repeatedly notifying the DOH of the damage to her property, and repeated unsuccessful attempts to get the DOH to repair the drainage system, she filed, on January 22, 1999, in the Circuit Court of Jackson County, a "PETITION FOR WRIT OF MANDAMUS TO COMPEL EMINENT DOMAIN PROCEEDINGS," alleging that the damages to her property were "a direct and proximate result of [the DOH's] failure to design, construct and maintain its storm water system i.e., the ditches and culverts, on Linden Lane and its cross streets, ... so as to prevent their overflow and flooding of [her] property," and seeking to compel the DOH to "initiate eminent domain proceedings pursuant to West Virginia Code, Chapter 54, Article 1, to determine the amount of the damages incurred by [Ms. Shaffer] which were caused by [the DOH,] and to compensate her for said damages."² In response to Ms. Shaffer's petition, the DOH filed a motion to dismiss asserting that, under the version of Rule 71B of the West Virginia Rules of Civil Procedure that became effective on April 6, 1998, Ms. Shaffer's action should have been filed as a complaint.³ By order entered March 30, 1999, the circuit court granted the DOH's motion to dismiss, but preserved Ms. Shaffer's right to properly apply to that court for a writ of mandamus.

Thereafter, on April 27, 1999, Ms. Shaffer filed a complaint, conforming with W. Va. R. Civ. P. 71B, asserting the same allegations against the DOH and requesting the same relief as in her earlier petition. Once again, the DOH responded by filing a motion to dismiss asserting that Ms. Shaffer's action was not cognizable in mandamus.⁴ According to Ms. Shaffer, the court heard oral arguments, but did not accept any evidence before ruling on the DOH's motion. Subsequently, by order entered August 2, 1999, the circuit court granted the DOH's motion and dismissed Ms. Shaffer's complaint, with prejudice. In its order, the circuit court first found that the issue before it constituted a question of law, which was "squarely in the breast of the Court." Nevertheless, the circuit court provided the following rationale, based upon factual determinations, for its decision to grant the DOH's motion to dismiss:

[Ms. Shaffer has] failed to prove any of the elements of State ex rel. Kucera,⁵ necessary to require the Defendant to institute eminent domain proceedings. [Ms. Shaffer] has not demonstrated to this Court that [the DOH] has taken or damaged her property within a reasonable time after construction or improvements that were made by the [DOH]. The record before this Court contains no showing that the [DOH] took any action which could have possibly damaged [Ms. Shaffer's] property. In fact, the area which was flooded could not have been caused by [the DOH's] actions on Linden Lane.

(Footnote added). Moreover, in deciding to dismiss Ms. Shaffer's complaint, the circuit court expressly relied on State ex rel. Henson v. West Virginia Dep't of Transp., Div. of Highways, 203 W.Va. 229, 506 S.E.2d 825 (1998) (per curiam),⁶ stating:

Although the previously cited case of State ex rel. Henson was a per curiam decision of the West Virginia Supreme Court of Appeals, [this Circuit Court] is of the opinion that the procedure followed by the Circuit Court of Kanawha County in that case is the same procedure this Court should follow in deciding this issue.

It is from this order that Ms. Shaffer appeals.

II. STANDARD OF REVIEW

"Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).

III. WRIT OF MANDAMUS TO INSTITUTE EMINENT DOMAIN PROCEEDINGS

Ms. Shaffer argues that the West Virginia Constitution, Article III, Section 9,⁷ and W. Va.Code § 54-1-1 et seq., protect property owners from the taking of, or damage to, their property by the government without just compensation. When the DOH carries out such a taking and then fails to properly institute an eminent domain proceeding, Ms. Shaffer contends, a property owner may seek a writ of mandamus to compel the eminent domain proceeding wherein the property owner may seek compensation for his or her damages. Ms. Shaffer asserts that, by virtue of the circuit court's decision, she has been improperly denied the opportunity to present her evidence that her property was flooded and damaged as a result of the actions of the DOH. She asks this Court to reverse the order of the circuit court and allow her to have her day in court.⁸

With regard to a property owners right to recover for damages caused to private property by the DOH, we have held:

If a highway construction or improvement project results in probable damage to private property without an actual taking thereof and the owners in good faith claim damages, the West Virginia Commissioner of Highways has a statutory duty to institute proceedings in eminent domain within a reasonable time after completion of the work to ascertain the amount of damages, if any, and, if he fails to do so, after reasonable time, mandamus will lie to require the institution of such proceedings.

Syl. pt. 1, State ex rel. Rhodes v. West Virginia Dep't of Highways, 155 W.Va. 735, 187 S.E.2d 218 (1972). Accord Syl. pt. 1, State ex rel. Phoenix Ins. Co. v. Ritchie, 154 W.Va. 306, 175 S.E.2d 428 (1970); Syllabus, State ex rel. Lynch v. State Road Comm'n, 151 W.Va. 858, 157 S.E.2d 329 (1967); Syl. pt. 1, State ex rel. Griggs v. Graney, 143 W.Va. 610, 103 S.E.2d 878 (1958). Thus, the proper course of action for an aggrieved property owner who believes his or her property has sustained damage as a result of highway construction or improvement by the DOH, after a reasonable time without appropriate action by the DOH, is to file a complaint in the circuit court seeking a writ of mandamus.

The standard for issuing a writ of mandamus is well established:

"A writ of mandamus will not issue unless three elements coexist—(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

Syl. pt. 1, State ex rel. Davis v. Vieweg, 207 W.Va. 83, 529 S.E.2d 103 (2000). Syllabus point one of Rhodes, quoted above, establishes the DOH's statutory duty to institute eminent domain proceedings to ascertain damages caused to private property under the circumstances described in that syllabus point. Rhodes further establishes that mandamus is the appropriate remedy for a property owner when the DOH has failed to act in accordance therewith. With respect to the remaining requirement for the issuance of a writ of mandamus, a clear legal right to the relief sought, we have described the burden on the property owner as follows:

Where a petitioner seeks in a mandamus proceeding to compel the State Road Commissioner to institute proceedings to ascertain damages to private property allegedly caused by the State Road Commissioner in a highway construction or improvement, the clear legal right which the petitioner must show is not that there has

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