State ex rel. Lynch v. State Road Commission

• Decision Date: 31 October 1967
• Docket Number: No. 12646,12646
• Citation: 151 W.Va. 858,157 S.E.2d 329
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Pearl W. LYNCH v. STATE ROAD COMMISSION of West Virginia, a Corporation, and Burl A. Sawyers, State Road Commissioner.

Page 329

157 S.E.2d 329

151 W.Va. 858

STATE ex rel. Pearl W. LYNCH v. STATE ROAD COMMISSION of West Virginia, a Corporation, and Burl A. Sawyers, State Road Commissioner.

No. 12646.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1967.

Decided Oct. 31, 1967.

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 Commissioners, 143 W.Va. 610 (103 S.E.2d 878).

Greene, Ketchum, Baker & Pauley, Lawrence L. Pauley, Huntington, for relator.

Anthony G. Halkias, Charleston, for respondents.

CAPLAN, Judge.

In this original proceeding in mandamus the petitioner, Pearl W. Lynch, seeks a writ to compel the respondents, the State Road Commission of West Virginia, a corporation, and Burl A. Sawyers, State Road Commissioner, to institute against the petitioner a proceeding in eminent domain for the purpose of ascertaining and determining the damages, if any, caused to the petitioner's property by reason of the construction by the respondents of a certain state road. A rule in mandamus was awarded by this Court on February 20, 1967, returnable April 25, 1967, at which time, on the motion of the parties, the case was continued generally. On September 6, 1967, the case was submitted for decision on the petition, the answer of the respondents, the replication of the petitioner to the respondent's answer, depositions taken and filed on behalf of the parties hereto and upon briefs and arguments filed and made by counsel for the respective parties.

The petitioner alleges that she is the owner of a certain lot with improvements thereon, situate in the City of Huntington, Westmoreland District, Wayne County, West Virginia, designated as 729 Eloise Street. It is further alleged in her petition that the respondents constructed upon land in the near vicinity of the petitioner's property a public road known as Interstate No. 64; that in the construction of said highway, the respondents caused the vegetation to be removed from nearby land, caused great cuts and fills to be made in the earth, converted and caused streams and drains to be diverted from their natural water courses, erected, or caused to be erected, great embankments with steepsloped sides, the surface of which was composed of loosely compacted earth which was highly susceptible to erosion by rain and surface waters; that the respondents failed to provide adequate drainage facilities for carrying away the increased runoff of surface waters caused by the construction of said highway; that on numerous occasions, beginning in November, 1964 and continuing to the present time, the surface waters have been caused to overflow and flood the land of the petitioner; and that by reason thereof the petitioner's house and property have been damaged by deposits of mud and debris resulting in a reduction in the value of the property.

The record reveals, and it is admitted by the petitioner, that her property is set at a low level in relation to surrounding land and that prior to the construction of Interstate No. 64 her property on the occasion of heavy rains was subjected to flooding. However, she relates that the waters which collected were clear and would disappear within an hour, leaving no mud or debris. She now complains, as indicated in her petition, that since the construction of said highway, the flood waters, resulting from heavy rainfalls, have come into her house and have caused mud and debris to be deposited upon her property.

In reply to the petitioner's allegations the respondents deny that the construction of Interstate No. 64 materially altered the flow of surface waters or in any manner caused the damage of which the petitioner complains. Rather, the respondents assert, the damage, if any to the petitioner's property is the result of a combination of conditions, acts and omissions, none of which are attributable to them. They allege that the petitioner's land is situate at a level lower than the surrounding land; that inadequate drainage in the immediate vicinity of her property existed long before the construction of Interstate No. 64; that it is the obligation of the City of Huntington and the petitioner to provide for proper drainage; and that if any damage was caused by the construction of said highway the responsibility therefor is that of the contractor, not the respondents.

Furthermore, the respondents assert that the burden is on the petitioner to prove not only that mud, debris and silt accumulated on her property but must also show what caused such accumulation. This, say the respondents, the petitioner has failed to do.

In a proceeding in mandamus against the State Road Commission it is incumbent upon the petitioner, as in other cases of this nature, to show a clear legal right to the relief sought. State ex rel. Neal v. Barron, 146 W.Va. 602, 120 S.E.2d 702; State ex rel. Dunn v. Griffith, 139 W.Va. 894, 82 S.E.2d 300; State ex rel. Quick v. Bailey, 128 W.Va. 123, 35 S.E.2d 735. The relief sought in this case is a writ to require the State Road Commissioner to institute a proceeding in eminent for the purpose of determining the amount of damage, if any, caused to the petitioner's property by the construction of the said state road. It is not the purpose of the instant proceeding, nor would it here be legally permissible, to consider and determine whether or not damages actually have been caused to the petitioner's property. This can be accomplished only in an action in eminent domain.

The foregoing was clearly stated by this Court in State ex rel. French v. State Road Commission, 147 W.Va. 619, 129 S.E.2d 831, wherein it was said: 'While this legal requirement of a...