State ex rel. French v. State Road Commission
| Decision Date | 26 February 1963 |
| Docket Number | 12199,12200,Nos. 12198,s. 12198 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. Warren FRENCH and Betty Sue French, His Wife, Virgil French and Ruth French, His Wife, and Warren French, Virgil French and W. C. Combs d/b/a French and Combs, v. STATE ROAD COMMISSION of West Virginia, a Corporation, and Burl A. Sawyers, State Road Commissioner of West Virginia. STATE ex rel. Ida Mae FRENCH (Widow of D. W. French,) Estelle (French) Elkins and Eugene Elkins, Her Husband, Betty Jean French, Single, Warren French and Betty Sue French, His Wife, Virgil French and Ruth French, His Wife, and Mose Pitzer d/b/a Pitzer Machine Shop (Tenant), v. STATE ROAD COMMISSION of West Virginia, a Corporation, and Burl A. Sawyers, State Road Commissioner of West Virginia. STATE ex rel. Warren FRENCH and Betty Sue French, His Wife, v. STATE ROAD COMMISSION of West Virginia, a Corporation, and Burl A. Sawyers, 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 Commissioners 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 .
David D. Ashworth, Leo Bridi, Beckley, for relators.
L. Eugene Dickinson, Charleston, for respondents.
These three proceedings in mandamus, involving similar factual situations and similar legal principles, have been briefed and argued together and will be considered in a single opinion. In the mandamus proceedings the relators allege that their real estate has been damaged by the state road commission in connection with a project for the widening and improvement of a specified state highway in Raleigh County, which project was completed about March, 1962; and the relators therefore pray that the respondents be required by mandamus to institute eminent domain proceedings for the purpose of having a judicial determination of damages alleged to have been suffered by the relators.
The respondents by answer deny substantially all the allegations of damage and also insist that, if damages have resulted to real estate belonging to the relators, they are not of such a nature as to impose liability on the state road commission in an eminent domain proceeding.
Article III, Section 9 of the Constitution of this state provides that private property 'shall not be taken or damaged for public use, without just compensation; * * *.' Article VI, Section 35 of the Constitution provides that 'The State of West Virginia shall never be made defendant in any court of law or equity, * * *.' In the light of these two constitutional provisions, this Court has held that the state road commission, an agency of the state, may be required by mandamus to institute proceedings in eminent domain to ascertain just compensation for land taken or damaged for public purposes, including state highway purposes. Hardy v. Simpson, State Road Com'r, 118 W.Va. 440, 190 S.E. 680. In the second point of the syllabus of that case the Court held: 'Where the construction or improvement of a state highway results in damage to private property, short of the actual taking thereof, it is the duty of the State Road Commission, under Code, 54-2-14, and within a reasonable time after the completion of the work out of which such damage arises, to institute proceedings to ascertain the damage to which the owner of such property may be entitled.' The same legal principles have been adhered to and applied by this Court in many subsequent cases, the most recent one being State ex rel. Murray v. Graney, State Road Com'r, 143 W.Va. 643, 103 S.E.2d 888. See also State ex rel. Ashworth et al. v. State Road Comm., W.Va., 128 S.E.2d 471.
'A writ of mandamus will be issued only upon a showing that relator has a clear legal right to the relief sought.' State ex rel. Neal v. Barron, W.Va., 120 S.E.2d 702, pt. 3 syl. The same legal principle applies in cases such as the present one. 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. While this legal requirement of a showing of 'a clear legal right' is fundamental, it is obviously true also that mandamus cannot be substituted for eminent domain; and it would not be appropriate or legally...
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...56 S.E.2d 97 (1949); Taylor v. Baltimore & Ohio Railroad Co., 138 W.Va. 313, 75 S.E.2d 858 (1953); State ex rel. French v. State Road Commission, 147 W.Va. 619, 129 S.E.2d 831 (1963); State ex rel. Phoenix Ins. Co. v. Ritchie, supra; State ex rel. Rhodes v. West Virginia Department of Highw......
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