State by State Road Commission v. Professional Realty Co.
| Decision Date | 13 October 1959 |
| Docket Number | No. CC849,CC849 |
| Citation | 110 S.E.2d 616,144 W.Va. 652 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia by the STATE ROAD COMMISSION and Patrick C. Graney, Sr., State Road Commissioner, etc. v. PROFESSIONAL REALTY COMPANY. |
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 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 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.
In this eminent domain proceeding instituted in the Circuit Court of Raleigh County, the petitioners seek to 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 may acquire 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 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 sufficiently alleged, 'but to the contrary, the only allegation of such necessity is to the effect that the State Road Commissioner has determined the necessity.'
In their written brief, counsel for the defendant state that 'the burden of proof as to whether traffic conditions do or do not render controlled-access facilities necessary is on the State because otherwise the defendant would have to prove a negative.' This implies that there is authority and jurisdiction in the circuit court to determine, upon proof, whether or not the proposed controlled-access facility is necessary.
In an effort to cope with the situation resulting from this point of the demurrer and the action of the trial court in sustaining it, petitioners amended their petition by the insertion of quite extensive language. Briefly summarized, the amended petition alleges in that connection that the Commissioner 'has determined that present or reasonably anticipated future traffic conditions render a controlled-access (freeway) facility necessary,' and that he has designated this portion of the highway as a controlled-access facility; that the Commissioner has conducted an investigation to determine traffic data in connection with the highway in question; that vehicular speeds are comparatively slow and there is considerable traffic congestion on the portion of the highway in question; statistical data resulting from studies in other states are alleged to disclose that the flow of vehicular traffic is accelerated on controlled-access highways and that resulting highway accident rates are lessened; 'that since the tract hereinbefore described, presently abuts on a public road at a place where vehicular access is to be denied, it is necessary that the right of said defendant to vehicular access from the residue of said defendant's land * * * be acquired in this proceeding * * * so that said right of vehicular access, as aforesaid, may be extinguished * * *;' that work on the project in question is now in progress; that in connection therewith, it is necessary to pass over defendant's land; and that the rights sought to be acquired in this proceeding are 'necessary for the construction of said public road aforesaid.'
The right of a state to take private property for public purposes is an inherent attribute of sovereignty,...
To continue reading
Request your trial
-
State ex rel. City of Wheeling v. Renick
...together and considered as a single statute the parts of which had been enacted at the same time. State ex rel. State Road Commission v. Professional Realty Company, W.Va., 110 S.E.2d 616; Chesapeake and Potomac Telephone Company of West Virginia v. City of Morgantown, W.Va., 107 S.E.2d 489......
-
Delardas v. Morgantown Water Commission, 12250A
... ... 2. The policy of the law of this State is that all public utilities, whether publicly or privately ... Renick, 145 W.Va. 640, 116 S.E.2d 763; State by State Road Commission v. Professional ... Realty Company, 144 W.Va ... ...
-
Gomez v. Kanawha Cnty. Comm'n
...right to take the subject property for the public purposes as stated in the petition[.]”)14 State by State Rd. Comm'n v. Prof'l Realty Co. , 144 W.Va. 652, 657, 110 S.E.2d 616, 620 (1959).15 State v. Horner , 121 W.Va. 75, 81, 1 S.E.2d 486, 486 (1939) (“The right of eminent domain, being an......
-
Cunningham v. County Court of Wood County
...City of McMechen ex rel. Wiley v. Fidelity and Casualty Co. of New York, 145 W.Va. 660, 666, 116 S.E.2d 388, 392; State, etc. v. Professional Realty Company, 144 W.Va. 652, pt. 5 syl., 110 S.E.2d 616; State ex rel. Watts v. Kelly et al., 140 W.Va. 177, pt. 1 syl., 83 S.E.2d 465; State ex re......