State ex rel. Phoenix Ins. Co. v. Ritchie

Decision Date07 July 1970
Docket Number12865,12871,Nos. 12864,12872--12875,12870,s. 12864
Citation154 W.Va. 306,175 S.E.2d 428
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. the PHOENIX INSURANCE COMPANY, etc. v. William S. RITCHIE, Jr., State Road Commissioner of W. Va. STATE ex rel. Kathleen THOMAS, Executrix, etc., et al. v. William S. RITCHIE, Jr., State Road Commissioner of W. Va. STATE ex rel. the TRUSTEES, KANAWHA AERIE NO. 1040, FRATERNAL ORDER OF EAGLES, a Corp. v. William S. RITCHIE, Jr., State Road Commissioner of W. Va. STATE ex rel. Louis F. MURAD et al. v. William S. RITCHIE, Jr., State Road Commissioner of W. Va. STATE ex rel. Posey A. MARTIN et al. v. William S. RITCHIE, Jr., State Road Commissioner of W. Va. STATE ex rel. PROGRESSIVE INVESTMENTS, INC., a Corp. v. William S. RITCHIE, Jr., State Road Commissioner of W. Va. STATE ex rel. Andrew A. TABIT et al. v. William S. RITCHIE, Jr., State Road Commissioner of W. Va. STATE ex rel. Wilson JACOBS et al. v. William S. RITCHIE, Jr., State Road Commissioner of W. Va.

Syllabus by the Court

1. If a highway construction or improvement results in property damage to private property without an actual taking thereof and the owners in good faith claim damages, the State Road Commissioner has the duty to institute proceedings within a reasonable time to ascertain damages, if any, and, if he fails to do so, after a reasonable time, mandamus will lie to require the institution of such proceedings.

2. Where a petitioner seeks in a mandamus proceeding to compel the State Road Commissioner to institute proceedings to ascertain damages to private property allegedly caused by the State Road Commissioner in a highway construction or improvement, the clear legal right which the petitioner must show is not that there has been damages or what the amount of the damages is, but that there is reasonable cause to believe that these questions should be resolved by a judge and a jury of freeholders in the county in which the property is located.

3. Where a property owner sustains damages allegedly caused in a highway construction or improvement, and, pursuant to a contract of insurance, such property owner is reimbursed for his loss by the insurer, such insurer, as a subrogee, is not entitled to a writ of mandamus against the State Road Commissioner to compel him to institute eminent domain proceedings to ascertain damages to such property.

George L. Vickers, Montgomery, Carl B. Vickers, Fayetteville, for relators Phoenix Ins. Co., Kathleen Thomas, and others.

Louis R. Tabit, Montgomery, for relators Trustees, Kanawha Aerie No. 1040, Fraternal Order of Eagles and all others.

Claude H. Vencill, Legal Division, State Road Commission, Charleston, for respondent William S. Ritchie.

John Krivonyak, Legal Division, State Road Comm., Charleston, for William S. Ritchie in No. 12871.

BROWNING, President:

These eight cases are original proceedings in mandamus, and there are common questions of fact as to each and common questions of law as to the first seven but not as to the eighth, Phoenix Insurance Company v. The State Road Commissioner. The petitons allege that on October 11, 1967, the Mountain State Construction Company, working pursuant to a contract with the State Road Commission and doing certain excavation and construction work with respect to the rebuilding of West Virginia Route 61, caused large volumes of water to flood many portions of the City of Montgomery, damaging the real property of all of the petitioners herein. This flood was allegedly caused by the construction company's excavation of an abandoned mine on a hillside overlooking Montgomery, the property belonging to one Woodrow Wilson Jacobs. The respondent had acquired a right of way over Jacobs' property to do the work in question. Each petition alleges the damage done to the property by virtue of the enormous amount of water which was released upon a portion of the town.

All parties to these controversies have stipulated that the evidence, exhibits, etc., considered by this Court in State ex rel. Firestone Tire & Rubber Company v. Ritchie, W.Va., 168 S.E.2d 287, are applicable to these cases, and their motions that the depositions taken in that case be incorporated in these cases have been granted.

In the Phoenix case, that being heretofore referred to as the eighth case, the petition alleges the destruction of a certain two-story brick business building in Montgomery, owned by Anna Ricardi, a widow, and J. W. Ricardi and Yolanda Fudge, the children of the deceased husband. The destruction of the building resulted from 'a devastating fire,' allegedly as a direct result of the flood, which caused damages in the amount of $37,536.47. Phoenix carried the fire and casualty insurance on the building and, pursuant to the policy, paid the aforementioned amount to Anna and J. W. Ricardi. All of the petitioners, including Phoenix, have demanded compensation from the respondent or, in the alternative, that he institute eminent domain proceedings, all of which he has refused.

The petitioners allege that they have established a clear legal right to writs of mandamus against the respondent to compel him to institute condemnation proceedings for the purpose of ascertaining the value of the property damaged or destroyed and that a jury of freeholders determine the value thereof.

In all cases respondent answers by saying that on December 28, 1966, the State Road Commission entered into a contract with Mountain State Construction Company to do certain highway construction work on a portion of West Virginia Route 61 in Montgomery, including a ramp extending from the relocated route to a new bridge spanning the C. & O. Railroad. The ramp construction involved some excavation of the foot of a hillside on the Jacobs' property and 'some sloping and benching of the hillside.' During construction some additional excavation became necessary during which old mine timbers and eventually the mine entry itself were encountered. The entry was followed toward the hillside about thirty-five feet before the contractor ended the day's work on October 11, 1967. About two and one-half hours later 'large volumes of waters broke loose at some point inside said hillside, came out through said excavation, and overflowed certain areas of the City of Montgomery.' Respondent admits that compensation for the resulting damage was demanded by the petitioners, but denies that they were entitled to that compensation. Respondent further alleges that neither he nor his predecessor in office had any knowledge of the existence of the water in the mine since core drillings made into the hillside indicated 'no flowing water or consistent water elevation.'

It is respondent's contention that if anyone is liable for these damages, it is the contractor, since its contract incorporated the 'Commissions Standard Specifications, Roads and Bridges, 1960, Sections 1.7.6 and 1.7.10,' which, according to the respondent, 'require the construction contractor to conduct the work in such a manner as to provide and insure the safety and convenience of the public and private property along and adjacent to the highway under construction, and to indemnify and save harmless the State Road Commission of West Virginia from any and all actions or claims brought for any damages to any person or property by reason of the contractor's acts or failure to take suitable precautions to prevent damages * * *.' In the alternative, respondent suggests that the responsibility is that of the mine owner, Jacobs.

In a supplemental answer, respondent notes also that since the filing of the petitions in these cases, the petitioners have instituted civil actions in the Fayette County Circuit Court against the contractor, and filed claims in the State Court of Claims against the State Road Commissioner.

These cases were submitted for decision upon oral argument and briefs on May 5, 1970. It is the view of this Court, for reasons to be hereinafter stated, to grant writs of mandamus as prayed for in seven of the above-styled cases and to deny the writ of mandamus in case No. 12864, the Phoenix case.

It is alleged and not denied in these proceedings that the owners of the damaged or destroyed real property were without fault of any kind and contributed in no way to the flooding of the city or to their losses. It is also alleged and not denied that these petitioners are seeking compensation for their damages in civil actions in the Fayette County Circuit Court alleging negligence on the part of the contractor and that they have filed claims with the State Court of Claims against the State Road Commissioner. We are, of course, not called upon to determine whether they can prevail in any of the above-mentioned actions or proceedings, and, of course, they can be compensated only once for their losses if they can prevail. It might well be that one or more of these cases will come back to this Court for final adjudication regardless of what results either in the Circuit Court of Fayette County, the Court of Claims, or pursuant to its recommendation, the action of the legislature with regard to what has come to be called a 'moral obligation.' We have before us only the question of whether a proper showing has been made for requiring the respondent to institute eminent domain proceedings against the petitioners in the Circuit Court of Fayette County.

Article III, Section 9, of the Constitution of this State provides that '(p) rivate property shall not be taken or damaged for public use, without just compensation * * *.' However, Article VI, Section 35, of the Constitution provides that '(t)he State of West Virginia shall never be made defendant in any court of law or equity * * *.' These constitutional provisions appear to be irreconcilable, but this Court has held that if the State Road Commissioner abuses his discretion in failing...

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    ...with the fundamental rights of due process and access to the courts guaranteed by article III. See State ex rel. Phoenix Insurance Co. v. Ritchie, 154 W.Va. 306, 175 S.E.2d 428 (1970). However, a closer analysis of the scope of the immunity provided by article VI, section 35, indicates that......
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