State ex rel. Cutlip v. Sawyers
| Decision Date | 02 April 1963 |
| Docket Number | No. 12203,12203 |
| Citation | 147 W.Va. 687,130 S.E.2d 345 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. Samuel Kenneth CUTLIP et al. v. Burl A. SAWYERS, as State Road Commissioner of West Virginia. |
Syllabus by the Court
'If a highway construction or improvement results in probable damage to private property without an actual taking thereof and the owners in good faith claim damages, the State Road Commissioner has the statutory duty to institute proceedings within a reasonable time after completion of the work to ascertain damages, if any, and, if he fails to do so, after reasonable time, mandamus will lie to require the institution of such proceedings.' Point 1 Syllabus, State ex rel. Griggs v. Graney, State Road Com'r., 143 W.Va. 610 .
Donald C. Carman, T. D. Kauffelt, Charleston, for relators.
Anthony G. Halkias, Charleston, for respondent.
Relators, Samuel Kenneth Cutlip and Oreda L. Cutlip, filed their petition in this Court on December 4, 1962, praying for a rule requiring the respondent to show cause why a writ of mandamus should not be awarded against him compelling him to institute condemnation proceedings to ascertain just compensation for the property of relators taken or damaged by the state road commission. The petition alleges in substance that relators are the owners of a tract of land in Vienna, Wood County, West Virginia, which they acquired on May 31, 1961; when U. S. Route 21 was relocated by the state road commission in 1950, an 18 inch drain or culvert was laid beneath said road, the drain ending at the boundary line between the state road commission right of way and relators' property; the drain was so negligently constructed that, during hard rains, water flows through this drain onto relators' property; and, on September 7, 1961, a severe rainfall occurred, the water from which was collected and channeled through the drain substantially damaging the property of relators. The petition also alleges that relators' predecessors in title had protested the condition to the state road commission but such protests were ignored.
In response to the rule the respondent filed an answer in which he admitted most of the material allegations of the relators' petition, but denied that the drain was negligently constructed, and asserted that relators' predecessors in title, by deed, dated the 12th day of January, 1949, granting a portion of their property to the state road commission for highway purposes, released any and all claims for damages that might be occasioned to the residue by reason of the construction and maintenance of a state road over the parcel of land therein conveyed.
The respondent also filed ' Special Plea of Statute of Limitations' based on the provisions of Code, 17-1-3, and Code, 55-2-12, as amended.
It is stipulated between the parties that the minimum amount of damage necessary to sustain this proceeding was occasioned and that no written recognition of any right of the respondent to divert water on the land of the relators was ever given. It is also stipulated that the drain was constructed in the year 1950 and within 30 days of construction a sufficiently hard rainfall occurred to cause water to flow through the drain onto the land of the relators.
Depositions were taken, bearing primarily on the issue of prescriptive right, in which the witnesses for the relators affirmed the fact that protest concerning the condition had been made to the state road commission and the witnesses for the respondent denied any knowledge of such protest, or that any letter of protest could be found in the files, though admitting that the files for the year 1956, when such a letter of protest was allegdly written, could not be located.
'If a highway construction or improvement results in probable damage to private property without an actual taking thereof and the owners in good faith claim damages, the State Road Commissioner has the statutory duty to institute proceedings within a reasonable time after completion of the work to ascertain damages, if any, and, if he fails to do so, after reasonable time, mandamus will lie to require the institution of such proceedings.' Point 1 Syllabus, State ex rel. Griggs v. Graney, State Road Com'r., 143 W.Va. 610, 103 S.E.2d 878. This principle was applied and followed in the recent case of State ex rel. French et al. v. Sawyers, State Road Com'r., W.Va., 129 S.E.2d 831, at the present term of Court. In view of the stipulation that the minimum amount of damage to sustain this action has been done, mandamus will therefore lie in the instant case against the state road commissioner under the authority cited in those two cases, in the absence of any doubt as to the clear legal right thereto on the part of relators. The principle that mandamus will issue only upon a showing of a clear legal right to the relief sought applies in proceedings such as the present one. State ex rel. French v. Sawyers, State Road Com'r., W.Va., 129 S.E.2d 831; State ex rel. Quick v. Bailey, State Road Com'r., 128 W.Va. 123, 35 S.E.2d 735; State ex rel. Dunn v. Griffith, State Road Com'r., 139 W.Va. 894, 82 S.E.2d 300. And, in establishing a clear legal right, the relator must show a right in the taken or damaged property superior to that of the state. Childers v. State Road Com'r., 124 W.Va. 233, 19 S.E.2d 611.
The state road commissioner, by an able brief, has attempted to deny relators' clear legal right to relief by interposing the special plea relating to the acquisition of the road commissioner of the right to do the ddamage occasioned by prescription, Code, 17-1-3, and of the applicable statute of limitations as set out in Code, 55-2-12, as amended, and in his answer by asserting the release of 'any and all claims for damages that may be occasioned to the residue of the lands of the parties of the first part by reason of the construction and maintenance of a state road over, upon and under the parcel of land' therein conveyed. Code, 17-1-3, provides '* * * Any road shall be conclusively presumed to have been established when it has been used by the public for a period of ten...
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