State by State Road Commission v. Professional Realty Co., No. CC849

• Court: Supreme Court of West Virginia
• Writing for the Court: CALHOUN
• Citation: 110 S.E.2d 616,144 W.Va. 652
• Parties: STATE of West Virginia by the STATE ROAD COMMISSION and Patrick C. Graney, Sr., State Road Commissioner, etc. v. PROFESSIONAL REALTY COMPANY.
• Docket Number: No. CC849
• Decision Date: 13 October 1959

Page 616

110 S.E.2d 616 144 W.Va. 652 STATE of West Virginia by the STATE ROAD COMMISSION and
Patrick C. Graney, Sr., State Road Commissioner, etc.
v.
PROFESSIONAL REALTY COMPANY. No. CC849. Supreme Court of Appeals of West Virginia. Submitted Sept. 16, 1959.
Decided Oct. 13, 1959.

Page 617

Syllabus by the Court.

1. Code, 17-4-5, authorizes either the state road commissioner or the state road commission to acquire real estate by right of eminent domain for state highway purposes. If both are joined as petitioners in such a proceeding, the petition is not, for that reason, multifarious.

2. The necessity for the improvement of a state highway is within the sound discretion of the state road commissioner, and his decision that such necessity exists will not be interfered with by the courts, unless in the exercise of such discretion he has

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acted capriciously, arbitrarily, fraudulently or in bad faith.

3. The necessity for taking land for a state highway improvement project, and the amount of land reasonably necessary for that purpose, are matters within the sound discretion of the state road commissioner; and such discretion will not be interfered with by the courts unless, in the exercise[144 W.Va. 653] of such discretion, he has acted capriciously, arbitrarily, fraudulently or in bad faith.

4. The state road commissioner, in the exercise of a sound discretion, has the right to determine that present or reasonably anticipated future traffic conditions render necessary the establishment of a controlled-access facility in connection with the state highway system, in accordance with the provisions of Chapter 157, Acts of the Legislature, 1955, Regular Session; and such discretion will not be interfered with by the courts unless, in the exercise of such discretion, he has acted capriciously, arbitrarily, fraudulently or in bad faith.

5. In the absence of evidence to the contrary, the state road commissioner will be presumed to have performed properly and in good faith duties imposed upon him by law.

6. A petition to condemn land for state highway purposes is sufficient if it substantially conforms to the requirements of Code, 54-2-2.

Bernard Duffy Horan, Charleston, for petitioners.

Thornhill & Thornhill, W. A. Thornhill, III, W. A. Thornhill, Beckley, for defendant.

CALHOUN, Judge.

In this eminent domain proceeding instituted in the Circuit Court of Raleigh County, the petitioners seek to [144 W.Va. 654] acquire certain real estate owned by the defendant, situated in the City of Beckley, in connection with a project to relocate and make a controlled-access facility (freeway) of a portion of State Route No. 16, known as the Beckley-Mabscott Road. Petitioners seek also to acquire and terminate defendant's right of vehicular access from his remaining real estate to the relocated highway. If such right of access were extinguished, the landowner would still have a means of vehicular access to the highway, but not from the portion of his remaining real estate which would abut directly upon the relocated highway.

To the original petition, defendant demurred on two grounds: (1) The allegations of the petition are insufficient to comply with Chapter 157, Acts of the Legislature, 1955, Regular Session (Code, 17-4-40); and (2) the petition is 'multifarious' and 'contains two distinct matters and causes' in that both the State Road Commission and the State Road Commissioner are made petitioners. The first point of the demurrer was sustained, and the second overruled.

Thereafter, the court, upon motion of petitioners, permitted an amendment of the petition. A demurrer was filed to the petition, as amended, upon the same two grounds. Again the court sustained the demurrer as to the first ground, and overruled it as to the second. Upon the court's own motion, the questions arising upon these two points of the demurrer to the amended petition were certified to this Court, in accordance with the provisions of Code, 58-5-2. The two points of the demurrer will be considered in inverse order.

Chapter 157, Acts of the Legislature, Regular Session, 1955, gives to 'the state road commissioner' authority to establish controlled-access facilities and to acquire property in connection therewith by condemnation or otherwise. The state road commission is not mentioned in that connection. Code, 17-4-5, as amended, however, in broad, comprehensive terms, provides that either the state road commissioner or the state road commission [144 W.Va. 655] may acquire

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property by eminent domain proceedings in connection with the state highway system. With reference to this statutory provision, the Court stated in the case of State v. Horner, 121 W.Va. 75, 79, 1 S.E.2d 486, 488: 'This is a plain and unambiguous provision, conferring a power upon two separate and distinct agencies of the state, which power may be exercised by either, independently of the other, and is of such a nature as needs no interpretation.' Counsel for petitioners state that both petitioners were joined in this instance out of an abundance of precaution because of the fact that Chapter 157, Acts of the Legislature, Regular Session, 1955, standing alone, specifically gives the right to condemn property for controlled-access highway purposes only to the state road commissioner. The Court holds that the provisions of Code, 17-4-5, are sufficiently comprehensive to grant either to the state road commissioner or to the state road commission the right to institute this particular proceeding. The fact that both were joined as petitioners does not make the petition multifarious. But one cause of action is asserted. In this connection the demurrer at most asserts only a misjoinder of parties. It may be superfluous to note that but a single right may be acquired. The trial court properly overruled the second point of the demurrer.

The provisions of Chapter 157, Acts of the Legislature, Regular Session, 1955, added to Chapter 17, Article 4 of the Code of 1931, as amended, seven new sections which are designated Sections 39-45, inclusive, all relating to controlled-access facilities as part of the state highway system. In asserting by demurrer that the allegations of the amended petition are insufficient, the defendant relies upon the italicized portion of the following language in Section 40: 'The state road commissioner is hereby authorized to plan, construct, designate, establish, regulate, vacate, alter, improve, maintain, and provide controlled-access facilities for public use as a part of the state road system wherever present or reasonably anticipated future traffic conditions render such special [144 W.Va. 656] facilities necessary. * * *' (Italics supplied.) In this connection the defendant in its demurrer asserts that, though the petition alleges that it is necessary that defendant's right to vehicular access to the proposed road be acquired by the petitioners, such allegation is a mere conclusion of law 'and is erroneous both as to the existence of the necessity and as to the right of the petitioner to acquire defendant's right of access'; that, under the requirements of Code, 17-4-40, an essential prerequisite to the designation of any road as a controlled-access facility is the existence of the fact (as distinguished from a determination of that fact by the commissioner) that traffic conditions render such controlled-access facility necessary; that the effect of the statutory language quoted above is to place upon the petitioners a burden of alleging, not simply a conclusion of law or an opinion, but the actual facts showing such necessity; and that the necessity for making the highway in question a controlled-access facility is not...