State by Dept. of Natural Resources v. Cooper

• Decision Date: 23 July 1968
• Docket Number: Nos. CC873,CC874,s. CC873
• Citation: 152 W.Va. 309,162 S.E.2d 281
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia By DEPARTMENT OF NATURAL RESOURCES v. Bennett COOPER et al. STATE of West Virginia By DEPARTMENT OF NATURAL RESOURCES v. William D. HEITZ et al.

Page 281

162 S.E.2d 281

152 W.Va. 309

STATE of West Virginia By DEPARTMENT OF NATURAL RESOURCES v. Bennett COOPER et al.

STATE of West Virginia By DEPARTMENT OF NATURAL RESOURCES v. William D. HEITZ et al.

Nos. CC873, CC874.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 27, 1968.

Decided July 23, 1968.

Syllabus by the Court

1. Where the State of West Virginia, or any entity with statutory authority to take property for public use, undertakes to acquire the fee simple title to a parcel of land all persons who own an interest or an estate in such parcel must be joined as party defendants in the proceeding.

2. The owners of the oil and gas underlying a parcel of land sought to be acquired in a condemnation proceeding are owners of a part of such parcel of land, and, as such, are necessary parties in an action to acquire a fee simple title to such land.

3. Where an entity 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.

W. Del Roy Harner, J. Pat Nichols, Parsons, for petitioner.

H. Laban White, Clarksburg, for defendants.

CAPLAN, Judge:

The State of West Virginia by The Department of Natural Resources, desiring to establish and develop a state park for the use and benefit of the public, on certain lands in Canaan Valley, Dry Fork District, Tucker County, West Virginia, instituted two civil actions in eminent domain for the purpose of acquiring the fee simple title to such lands. In civil action No. 354 the petitioner sought to acquire a tract of land consisting of 68 acres and named as the owners thereof Bennett Cooper, Mabel Cooper, R. Dean Heironimus and Helen K. Heironimus. The second civil action, No. 355, was instituted against William D. Heitz, Olive C. Heitz, R. Dean Heironimus and Helen K. Heironimus, as the owners of the 15 acres tract sought to be acquired by the petitioner.

The aforementioned actions were instituted on December 5, 1966, after due notice was served upon the defendants informing them, among other things, that further proceedings would be held on January 4, 1967. On the latter date the case was continued to February 15, 1967.

Defendants R. Dean Heironimus and Helen K. Heironimus, his wife, on February 13, 1967 appeared specially and moved the court that they be dismissed as party defendants, that the oil and gas minerals owned by them be dismissed from those proceedings and that the order giving the petitioner immediate right of entry be annulled, rescinded and set aside. In their motion these defendants allege that they are the owners of the oil and gas under the 85 acres involved in the two condemnation proceedings, the surface of which is owned by Bennett Cooper, Mabel Cooper, William D. Heitz and Olive C. Heitz as indicated above. A tract of two acres, more or less, subject to an easement for state road purposes, lies between the 15 and 68 acre tracts and is owned by these defendants.

It is asserted by the defendants Heironimus that inasmuch as the ownership and title to the oil and gas are separate and distinct from the ownership and title to the surface tracts, the oil and gas are improperly joined in this action. These defendants further allege in their motion to dismiss that their ownership of the minerals under the separate tracts will require them to defend a multiplicity of suits. As a final ground for dismissal, the defendants allege that they will be deprived of their statutory rights and constitutional guarantees in that the value of the oil and gas will not be determined by a jury.

At the request of the defendants, joined by the petitioner, it was ordered by the court that the motions to dismiss would be heard and considered jointly for the reason that the facts, issues and parties involved are identical in the two suits. Upon full consideration of the pleadings, including exhibits, briefs filed by counsel on behalf of the respective parties, and, after argument by counsel, the court overruled the motions to dismiss. The petitioner then moved the court to set June 7, 1967 as the date upon which to choose commissioners in the two cases. Prior to the court's ruling on that motion, the defendants Heironimus requested the court to certify to this Court certain questions regarding the propriety of the trial court's action in overruling the motions to dismiss on the grounds of misjoinder. The court, upon its own motion, certified the following questions to this Court:

'1. Under the provisions of West Virginia Code, Chapter 54, Article 2, Section 2, does the petitioner in each of these cases certified have the right to proceed for and to obtain a fee simple title to land when the surface is owned by one party and the oil and gas are owned by another party, and to join each of such owners in one suit when the entire interest in the oil and gas extends beyond the outside boundary of the surface tract to an area which is also sought to be taken in fee in a separate condemnation suit, the surface of such second tract being owned by a third party, and when the surface between the two surface tracts sought to be taken is separated by an easement for road purposes held by the State Road Commission?

2. Under the provisions of the Code of West Virginia, Chapter 54, Article 2, Section 2, does the word 'ownership' include the ownership of both the surface and the oil and gas rights?

3. Under the provisions of Code of West Virginia, Chapter 54, Article 2, Section 2 does the word 'parcel' include a piece of real estate in its entirety, extending from the heavens to the center of the earth?

4. In the event that the answers to questions numbers 1, 2 and 3 above are in the affirmative, are the rights of the defendants Heironimus, protected by the provisions of the West Virginia Code, Chapter 54, Article 2, Section 18?'

It is noted from the exhibits filed in these proceedings that R. D. Heironimus, the father of defendant R. Dean Heironimus, by deed dated April 23, 1931, acquired a fee simple title to 85 acres of land in Dry Fork District, Tucker County, West Virginia. The following out-conveyances were made from that tract: By deed dated March 18, 1946, R. D. Heironimus and his wife conveyed to Howard F. Cooper and Harry F. Moore a tract of 68 acres. The deed contained a reservation of all oil and gas. Bennett Cooper is the successor in title to Cooper and Moore. Subsequently, on August 6, 1960, R. D. Heironimus and his wife conveyed 15 acres to William D. Heitz. This deed also contained a reservation of the oil and gas. The two acre tract which is owned by defendants Heironimus and is subject to an easement for state road purposes makes up the balance of the original 85 acre tract.

Although the defendants Heironimus, in support of their motion for dismissal on the grounds of misjoinder, set out various points, their principal contention, and the one which we must here consider and decide, is that the petitioner should be required to proceed against them as the owners of the oil and gas in a separate action in eminent domain.

While the power of eminent domain is alluded to in Article III, Section 9 of the Constitution of West Virginia, such section is not the source of that power. The right of the state to take or damage property for public use is an inherent attribute of sovereignty and is not dependent upon constitutional or statutory provisions. State by State Road Commission v. Boggess, 147...