State ex rel. Prince v. West Virginia Dept. of Highways

• Decision Date: 10 October 1972
• Docket Number: No. 13200,13200
• Citation: 195 S.E.2d 160,156 W.Va. 178
• Parties: STATE ex rel. Myrtle PRINCE and Ronald Ray Fisher v. WEST VIRGINIA DEPARTMENT OF HIGHWAYS, a corporation and William S. Ritchie, Jr., its commissioner.
• Court: West Virginia Supreme Court

Page 160

195 S.E.2d 160

156 W.Va. 178

STATE ex rel. Myrtle PRINCE and Ronald Ray Fisher v. WEST VIRGINIA DEPARTMENT OF HIGHWAYS, a corporation and William S. Ritchie, Jr., its commissioner.

No. 13200.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1972.

Decided Oct. 10, 1972.

Syllabus by the Court

1. 'To entitle one to a writ of mandamus, the party seeking the writ must show a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded.' Point 4, Syllabus, State ex rel. Zagula v. Grossi, 149 W.Va. 11 (, 138 S.E.2d 356).

2. 'A writ of mandamus will not be issued in any case when it is unnecessary or when, if used, it would prove unavailing, fruitless or nugatory.' Point 6, Syllabus, Delardas v. Morgantown Water Commission, 148 W.Va. 776 (, 137 S.E.2d 426).

Broh & Vital, Jack H. Vital, III, Huntington, for relators.

Claude H. Vencill, Legal Division, Dept. of Highways, Charleston, for respondents.

CAPLAN, Judge:

This is an original proceeding in mandamus wherein the petitioners, Myrtle Prince and Ronald Ray Fisher, seek a writ to compel the respondents, West Virginia Department of Highways and William S. Ritchie, Jr., its commissioner, to institute a proceeding in eminent domain for the purpose of ascertaining the amount of compensation, if any, to which petitioners are entitled by reason of damages alleged to have been caused to certain real estate of the petitioners. A rule was granted by this Court on March 20, 1972, returnable on April 25, 1972, at which time, by agreement of the parties, the matter was continued generally. On September 6, 1972 this matter was submitted for decision on the petition, the joint and several answer of the respondents, their joint and several amended and supplemental answer and upon the briefs and arguments of counsel for the respective parties.

The petitioners are owners of certain real estate situate in the City of Huntington. The residence of Myrtle Prince is located on this property which is designated as 727 W. Seventeenth Street and is adjacent to or nearby a certain right of way of the State Department of Highways upon which a connecting road in the Interstate Highway System was constructed. It is alleged by the petitioners that in the construction of this connecting highway a fill was constructed which radically changed the topography of the land and caused surface waters to be cast upon their property thereby causing considerable damage. It is further alleged that the manner in which this highway and fill were designed failed to provide adequate drainage facilities, causing their property to be flooded whenever a hard rain occurred. Claiming that their property has been damaged without any compensation whatever from the state, the petitioners instituted this mandamus proceeding.

In their joint and several answer and in their amended and supplemental answer, the respondents deny that the fill for the newly constructed highway diverted water to or caused flooding of the petitioner's property. The respondents allege therein that the State Highway Commission entered into a contract with Foster and Creighton Company for the construction of such highway; that in said contract, among other provisions, the contractor agreed to indemnify and save harmless the commission from any and all suits, actions or claims brought by reason of any injuries or damages received or sustained by a person, persons or property as a consequence of its work.

The respondents further say that the petitioners filed a civil action in the Circuit Court of Cabell County seeking recovery from Foster and Creighton Company, Wilson Construction Company, Charleston Construction, Inc., and Davis Contracting Company, alleging therein the same damages to their real estate as that set out in the mandamus petition in the instant proceeding. Three of these actions were subsequently dismissed with prejudice to the plaintiffs as compromised, settled and agreed, the three defendants making such settlement being Foster and Creighton, Charleston Construction and Davis Contracting, each of said companies paying the plaintiffs $500.00, for a total of $1,500.00. Wilson Construction Company was dismissed from the civil action on a motion for summary judgment.

Upon payment of said sums the petitioners executed and delivered releases to the three defendants, releasing all claims resulting from said construction and forever discharging these defendants, their servants, agents, successors and assignees and any and all other persons, firms, associations and corporations from any and all actions, causes of action, claims and demands, damages, costs, expenses and compensation on account of or in any way growing out of any injuries or property damage resulting from the construction of such highway.

In the...