State by State Road Commission v. Boggess

Decision Date12 June 1962
Docket NumberNo. 12135,12135
CourtWest Virginia Supreme Court
PartiesSTATE by the STATE ROAD COMMISSION of West Virginia v. Grady BOGGESS et al., etc.

Syllabus by the Court

1. In an eminent domain proceeding, the right of either party to require that just compensation to the owner be ascertainment by an impartial jury of twelve freeholders is waived as to a landowner who fails to demand such jury trial pursuant to Code, 1931, 54-2-10, within ten days after the report of the commissioners is returned and filed.

2. In an eminent domain proceeding, a condemner who has made a timely demand for a jury trial pursuant to Code, 1931, 54-2-10, may subsequently withdraw such demand over the objection of the landowner who has not made a similar demand in a proper and timely manner.

Boggess, Crow & Davis, Burton Crow, Robert E. Davis, Ripley, for plaintiff in error.

George H. Samuels, Charleston, for defendant in error.

CALHOUN, President.

In this eminent domain proceeding, the State Road Commission of West Virginia, condemner, excepted to the report of the commissioners and demanded a jury trial pursuant to the provisions of Code, 54-2-10. Grady Boggess, the landowner, did not except to the report or demand a jury trial within ten days after the report was returned and filed pursuant to the statute referred to above. Almost two years after the report of the commissioners was filed, the condemner, over the objection of the landowner, was permitted by the circuit court to withdraw its exception to the report of the commissioners and its demand for a jury trial; and was permitted to pay the amount of the award of compensation made by the commissioners, with interest thereon from the date of entry upon the premises until the date of payment, in full settlement of compensation to the landowner. The sole question presented on this writ of error is whether the circuit court erred in its action stated above by failing to accord to the landowner the right to a jury trial in that court.

On March 16, 1959, the State Road Commission filed its petition in the Circuit Court of Jackson County seeking to condemn for state highway purposes certain easements in land owned by Grady Boggess in that county, and on that date the circuit court, pursuant to the provisions of Code, 54-2-14, as amended, entered an order authorizing the condemner at once to enter upon, take possession of, appropriate and use the land sought to be appropriated for the purposes stated in the petition.

On May 1, 1959, commissioners were appointed pursuant to Code, 54-2-5, to ascertain just compensation to the landowner for the land appropriated and for damages to the residue. After having taken the oath prescribed by statute, the commissioners viewed the premises on May 25, 1959, and on that date filed their report in writing by which they fixed the sum of $25,000 as just compensation to the landowner. An order of the circuit court entered on May 29, 1959, noted the filing of a writing pursuant to Code, 54-2-10, by which the condemner excepted to the report of the commissioners and demanded that the question of compensation to be paid be ascertained by a jury. On motion of the condemner, the case was continued from time to time the last continuance having been to November 7, 1960, by an order dated August 1, 1960.

Apparently no subsequent order was entered in the case until May 3, 1961. On that date the condemner moved the court 'for permission to withdraw its exceptions to the commissioners' report, and to pay the award allowed by the commissioners, together with six percent (6%) interest thereon from the date of entry upon the premises until paid as full payment for the easement to be taken as set forth and described in the petition filed herein and damage to the residue of the lands of the defendant, Grady Boggess * * *.' The landowner resisted the motion and objected and excepted to the action of the court in sustaining the motion, thereby raising the question now presented for decision.

Apparently neither party actually requested a jury trial at any specific time or term of court from the time the case was first placed on the trial docket until the entry of the final order by which the motion of the condemner was sustained as stated above.

Article III, Section 9 of the Constitution of West Virginia contains the following language: 'Private property shall not be taken or damaged for public use, without just compensation: * * * and when private property shall be taken, or damaged, for public use * * * the compensation to the owner shall be ascertained in such manner, as may be prescribed by general law; Provided, that when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders.' Provision is made by Article 2 of Chapter 54 of the Code for the appointment by the circuit court of commissioners to ascertain just compensation to the landowner. Section 10 of the same article contains the following language dealing with proceedings upon the report of such commissioners and with trial by jury: 'Within ten days after such report is returned and filed as aforesaid either party may file exceptions thereto, and demand that the question of the compensation to be paid be ascertained by a jury, in which case a jury of twelve freeholders shall be selected and impaneled for the purpose, in such manner as the court shall direct. * * * If no exceptions be filed to such report, and neither party demand a trial by jury as aforesaid, the court, or the judge thereof in vacation, unless good cause be shown against it, or it be defective or erroneous on its face, shall confirm such report, and order it to be recorded in the law order book of the court.'

From the constitutional and statutory provisions quoted above, which apply specifically and solely to eminent domain proceedings, there can be no question of the right of either party to demand a jury trial. The Constitution states that a jury trial may be required by 'either of the parties.' In a similar manner the statute provides that 'either party' may demand a jury trial, and that if 'neither party demand a trial by jury', the commissioners' report shall be confirmed. It is clear, therefore, that the parties may act severally, and that either party may demand a jury trial even though the other party is indifferent in the matter or even opposes trial by jury. Lynchburg Colliery Co. v. Eary, 105 W.Va. 460, 462, 143 S.E. 154, 155. In other words, a reasonable construction of such language is that one party may demand a jury trial while the other may consent to, approve or acquiesce in the finding of the commissioners by his failure to except and demand a jury trial.

On the other hand, there is a different constitutional provision and there is a different statutory provision relating generally to the right to trial by jury. The Constitution of West Virginia provides in Article III, Section 13: 'In suits at common law, where the value in controversy exceeds twenty dollars exclusive of interest and costs, the right of trial by jury, if required by either party, shall be preserved; * * *.' It has been held that this provision does not create a right to a jury trial but merely preserves such right in cases in which it existed at common law. Simms v. Dillon, 119 W.Va. 284, 297, 193 S.E. 331, 337, 113 A.L.R. 787; Lamb v. Strother, 118 W.Va. 257, pt. 3 syl., 189 S.E. 865; Lawhead, Receiver v. Board of Trustees, 115 W.Va. 475, 176 S.E. 860. It has been held also that this constitutional provision gives the absolute right to trial by jury when the matter in controversy exceeds twenty dollars 'provided that right is asserted.' Matheny v. Greider, 115 W.Va. 763, 177 S.E. 769.

Article III, Section 9 of the Constitution of West Virginia, which provides that private property shall not be taken for public use without just compensation, is not a source of the power of eminent domain, for the reason that the right of the state to take or damage private property for public use is an inherent attribute of sovereignty, irrespective of any constitutional or statutory provision. The constitutional provision quoted above is merely a restriction upon the inherent right to exercise such power. State v. Professional Realty Co., 144 W.Va. 652, 657, 110 S.E.2d 616, 620. The state, therefore, retains that inherent right except as restricted by constitutional or statutory provision.

'There was no right to a jury trial in an eminent domain proceeding at common law.' Simms v. Dillon, 119 W.Va. 284, 297, 193 S.E. 331, 337. See also Charles v. Big Sandy and Cumberland Railroad Co., 142 Va. 512, 129 S.E. 384; 29 C.J.S. Eminent Domain § 209, page 1127. The landowner, therefore, has no right to a jury trial in this eminent domain...

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5 cases
  • State Road Commission v. Board of Park Com'rs of City of Huntington, 12843
    • United States
    • Supreme Court of West Virginia
    • May 5, 1970
    ...of this State, unless trial of that question by a jury is waived by the parties to such proceeding. State by the State Road Commission v. Boggess, 147 W.Va. 98, 126 S.E.2d 26; Thorne v. City of Clarksburg, 88 W.Va. 251, 106 S.E. An eminent domain proceeding is a special proceeding and is Su......
  • Chamberlin v. Detroit Edison Co., Docket No. 3613
    • United States
    • Court of Appeal of Michigan (US)
    • December 2, 1968
    ...876; Moore Mill & Lumber Company v. Foster (1959), 216 Or. 204, 336 P.2d 39, 49, 337 P.2d 810; State by State Road Commission of West Virginia v. Boggess (1962), 147 W.Va. 98, 126 S.E.2d 26, 29. See, also, Comment, Relation of judge and jury in Michigan condemnation proceedings, 58 Mich.L.R......
  • State by State Highway Commissioner v. Stark, L
    • United States
    • Superior Court of New Jersey
    • May 10, 1967
    ...States Nat. Bank v. Loup River Public Power Dist., 139 Neb. 645, 298 N.W. 529 (Sup.Ct.1941), and State by State Road Commission v. Boggess, 147 W.Va. 98, 126 S.E.2d 26 (Ct.App.1962), one of the parties in each action appealed, while the other did not file a cross-appeal. In each case the co......
  • State by Dept. of Natural Resources v. Cooper
    • United States
    • Supreme Court of West Virginia
    • July 23, 1968
    ...an inherent attribute of sovereignty and is not dependent upon constitutional or statutory provisions. State by State Road Commission v. Boggess, 147 W.Va. 98, 126 S.E.2d 26; Board of Education of Kanawha County v. Campbells Creek Railroad Company, 138 W.Va. 473, 76 S.E.2d 271. The above co......
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