State ex rel. Queen v. Sawyers

• Decision Date: 26 November 1963
• Docket Number: Nos. 12222,12223,s. 12222
• Citation: 148 W.Va. 130,133 S.E.2d 257
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Owen QUEEN et al. v. Burl A. SAWYERS, State Road Commissioner, etc. STATE et rel. Ezra CHAPMAN et al. v. Burl A. SAWYERS, State Board Commissioner, etc.

Page 257

133 S.E.2d 257

148 W.Va. 130

STATE ex rel. Owen QUEEN et al. v. Burl A. SAWYERS, State Road Commissioner, etc.

STATE et rel. Ezra CHAPMAN et al. v. Burl A. SAWYERS, State Board Commissioner, etc.

Nos. 12222, 12223.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 1, 1963.

Decided Nov. 26, 1963.

Syllabus by the Court

1. In a mandamus proceeding to compel the state road commissioner to institute a proceeding in eminent domain to ascertain just compensation for damage alleged to have been caused to private property by the construction of a public highway, it is essential that the landowner show a clear legal right to the relief sought; and a writ of mandamus will not be awarded unless it appears that the highway construction has resulted in probable damage to such private property of such nature that compensation therefor may be properly ascertained in an eminent domain proceeding.

2. A judgment by consent, or a court order recording a compromise settlement by the parties of the matters at issue in a pending case, is binding and conclusive and operates as res judicata and as an estoppel to the same extent as a final judgment after contest of such issues.

3. A valid agreement of compromise and settlement of a case properly pending in a court of competent jurisdiction, in the absence of any exception or reservation, constitutes a merger and a bar of all claims properly ligitable in such case.

4. If, in the construction of a public highway by the state road commission, water is improperly discharged on private property, such constitutes a damage to private property as distinguished from a taking thereof.

5. In an eminent domain proceeding an award by commissioners or a verdict by a jury may not be based on mere conjecture or speculation either in respect to the right of recovery by the landowner or in respect to the amount of the award or verdict.

R. H. Burford, Beckett & Burford, Huntington, for relator queen.

William N. Mattews, Huntington, for relator Chapman.

Anthony G. Halkias, Benjamin A. Ritchie, Charleston, for respondent.

CALHOUN, Judge.

This case involves two original proceedings in mandamus to compel Burl A. Sawyers, State Road Commissioner of West Virginia, to institute two proceedings in eminent domain to ascertain just compensation for damage alleged to have been caused to two parcels of real estate, separately owned, in Cabell County, as a consequence of the construction of a controlled access highway known as Interstate Route No. 64. Inasmuch as the factual situations and legal questions involved in the two mandamus proceedings are similar the have been combined for consideration and decision in this Court.

One of the parcels of real estate is owned by Ezra Chapman and Clara Chapman, husband and wife; and the other is owned by Owen Queen and Lennie Queen, husband and wife. A portion of each tract was heretofore acquired by the state road commission for the purpose of the construction of Interstate Route No. 64. The remaining portions of the two tracts are contiguous and both abut on the north side of the right of way of Interstate Route No. 64.

The landowners base their claim of damage on an assertion that the state road commission gathered surface drainage water in ditches and cast such water in a body on the Queen land by means of two culverts which have been placed under the highway. Reliance in that connection is placed on various authorities, including the following decisions of this Court: Lindamood v. Board of Education, 92 W.Va. 387, 114 S.E. 800; Manley v. Brown, 90 W.Va. 564, 111 S.E. 505; Tracewell v. Wood County Court, 58 W.Va. 283, 52 S.E. 185; McCray v. Town of Fairmont, 46 W.Va. 442, 33 S.E. 245; Jordan v. City of Benwood, 42 W.Va. 312, 26 S.E. 266, 36 L.R.A. 519; Hargreaves v. Kimberly, 26 W.Va. 787; Knight v. Brown, 25 W.Va. 808; Johnson v. City of Parkersburg, 16 W.Va. 402; Gillison v. City of Charleston, 16 W.Va. 282. Water from the two culverts passes over the highway right of way and thence to the Queen land. The landowners assert that the water from the two culverts has caused erosion on the Queen land and a consequent carrying of sediment to the Chapman land.

Counsel for the state road commission have pointed out that cases such as this may result in anomalous or awkward situations from its standpoint in that it may be required by court order to institute eminent domain proceedings to ascertain just compensation in cases in which it is earnestly contended that no property has been taken or damaged for public purposes. Nevertheless, we are committed to the proposition that, in a case of this nature, a writ of mandamus will be awarded if a highway construction or improvement results in 'probable damage' to private property. State ex rel. Cutlip v. Sawyers, W.Va., 130 S.E.2d 345; State ex rel. French v. State Road Commission, W.Va., 129 S.E.2d 831. Conversely, of course, a writ of mandamus will not be awarded in the absence of a proper showing of probable damage of such nature that compensation for it may be determined in an eminent domain proceeding. State ex rel. Wiley v. State Road Commission et al., W.Va., 133 S.E.2d 113; Gardner v. Bailey, 128 W.Va. 331, 36 S.E.2d 215.

Counsel for the state road commission assert that these proceedings in mandamus are premature inasmuch as the highway construction has not been completed. Reference in that connection is made to Code, 1931, 54-2-14, as amended, which deals with eminent domain proceedings instituted by the state or by any of its political subdivisions and which contains the following language: '* * * but such proceedings shall proceed to final award or judgment after a reasonable time has elapsed for completion of the work upon the particular property * * *.' See also Hardy v. Simpson, 118 W.Va. 440, pt. 2 syl., 190 S.E. 680, 191 S.E. 47; State ex rel. Griggs v. Graney, 143 W.Va. 610, pt. 1 syl., 103 S.E.2d 878; State ex rel. French v. State Road Commission, W.Va., syl., 129 S.E.2d 831; State ex rel. Cutlip v. Sawyers, W.Va., syl., 130 S.E.2d 345.

The state road commission also asserts defensively that relief should be denied in these mandamus proceedings, first, because both the Queens and the Chapmans are bound by compromise settlements previously made by them with the commission; and, second, that the damage caused to the two parcels of real estate did not result from the highway construction. We believe that both of such contentions are sustained by the testimony taken in connection with the two mandamus proceedings.

In August, 1960, the state road commission and the state road commissioner instituted in the Circuit Court of Cabell County two proceedings in eminent domain for the purpose of acquiring portions of the Queen and Chapman real estate for highway construction purposes and for ascertaining just compensation to the landownrs pursuant to pertinent statutes of this state. The petition in each case made reference to the highway construction plats and plans which had been filed in the office of the Clerk of the County Court of Cabell County, which plats and plans disclosed the locations of two proposed culverts to carry surface drainage water from the right of way to the residue of the Queen property. Commissioners were appointed by the circuit court to go upon the premises and to ascertain in each of the two cases just compensation for the land proposed to be taken, 'as well as for damages to the residue of the said real estate beyond all benefits which will be derived in respect to such residue from the work to be constructed,' pursuant to the provisions of Code, 1931, 54-2-9, as amended. All parties in the two cases were represented by counsel.

The eminent domain proceedings were instituted on August 5, 1960. On November 2, 1960, Ezra Chapman and Clara Chapman executed a deed to the state road commission which was based on a consideration of $4,000, and which embodied a compromise settlement of the matters in difference in the eminent domain proceeding. The deed refers to the construction plats and plans 'of record in the Office of the Clerk of the County Court of Cabell County,' embodies a conveyance of the land involved in the eminent domain proceeding and contains the following additional language: 'Grantor further expressly releases all claims of Grantor for damages to any residue of land retained, or adjoining or nearby land owned by Grantor; it being agreed that the compensation herein provided for as purchase price is full compensation for all of the parcels herein described and for all rights and easements hereby released and all damages herein described and which the Grantor has or may hereafter suffer.' It does not clearly appear that a court order was entered pursuant to the compromise, but it is reasonable to assume that the eminent domain proceeding was terminated by court action, inasmuch as the Chapmans seek by mandamus to require the state road commissioner to institute a new proceeding in eminent domain in the same court.

The compromise settlement of the matters involved in the eminent domain proceeding in the Queen case is embodied in an order entered by the circuit court in that case on July 27, 1961, which was corrected in some respects by an amended order entered on November 7, 1962. The order dated July 27, 1961, refers to the written report of the commissioners, exceptions of the landowners to such report and the matter coming on to be tried that day by a jury 'upon the issues joined between the parties.' The order thereafter proceeds to state that the parties by counsel announced to the court 'that the parties hereto had agreed upon the settlement of the matters in difference as set forth in the Petition heretofore filed and that the Petitioners and the Defendants have agreed upon a compromise settlement whereby the Petitioners agree to pay for the land, easements and rights of access as described in said Petition the sum of FOUR THOUSAND...