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

• Decision Date: 14 March 1972
• Citation: 187 S.E.2d 218,155 W.Va. 735
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. W. H. RHODES v. The WEST VIRGINIA DEPARTMENT OF HIGHWAYS, a Corporation, and William S. Ritchie, West Virginia Commissioner of Highways. STATE ex rel. Hope SHREWSBURY, etc., et al. v. The WEST VIRGINIA DEPARTMENT OF HIGHWAYS, a Corporation, and William S. Ritchie, West Virginia Commissioner of Highways.

Page 218

187 S.E.2d 218

155 W.Va. 735

STATE ex rel. W. H. RHODES v. The WEST VIRGINIA DEPARTMENT OF HIGHWAYS, a Corporation, and William S. Ritchie, West Virginia Commissioner of

Highways.

STATE ex rel. Hope SHREWSBURY, etc., et al. v. The WEST VIRGINIA DEPARTMENT OF HIGHWAYS, a Corporation, and William S. Ritchie, West Virginia Commissioner of Highways.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 18, 1972.

Decided March 14, 1972.

Syllabus by the Court

1. If a highway construction or improvement project results in probable damage to private property without an actual taking thereof and the owners in good faith claim damages, the West Virginia Commissioner of Highways has a statutory duty to institute proceedings in eminent domain within a reasonable time after completion of the work to ascertain the amount of damages, if any, and, if he fails to do so, after reasonable time, mandamus will lie to require the institution of such proceedings.

2. 'Under the provisions of Code, 54--2--14, as amended, the state has the right to delay condemnation proceedings until a reasonable time has elapsed for completion of the work upon the property sought to be condemned.' Point 1 Syllabus, State ex rel. State Road Commission (of West Virginia) v. Taylor, 151 W.Va. 535 (153 S.E.2d 531).

3. The circuit courts of this state have exclusive original jurisdiction in proceedings in eminent domain. The jurisdiction of this Court in such cases is only appellate in character.

Sayre & Sayre, Robert B. Sayre, Floyd M. Sayre (now deceased), Beckley, for relators.

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

CALHOUN, President:

This case involves two separate proceedings in mandamus instituted in this Court by owners of separate parcels of land to compel the West Virginia Department of Highways and William S. Ritchie, Jr., West Virginia Commissioner of Highways, as the respondents, to institute who separate proceedings in eminent domain in the Circuit Court of Raleigh County for the purpose of ascertaining the amount of damages alleged to have been caused to real estate owned by the petitioners as a consequence of the construction of a state public highway in the vicinity of the Town of Crab Orchard in Raleigh County.

The petitioners in one of the mandamus proceedings are Hope Shrewsbury and others who are the widow and children of Willard Shrewsbury, deceased. The petitioner in the other mandamus proceeding is W. H. Rhodes. Inasmuch as the two mandamus proceedings involve similar factual situations and essentially identical legal questions, they have been combined for submission and decision in this Court.

Numerous pleadings were filed and rather voluminous testimony in the form of depositions was taken in behalf of the respective parties in each of the two mandamus cases. As we shall undertake to state hereafter in this opinion, we are of the opinion that many of the issues raised by the pleadings and by the depositions will bear more properly upon issues which will be involved in subsequent eminent domain proceedings than upon the issues involved in these proceedings in mandamus.

By reason of the provisions of Section 3 of Article VIII of the Constitution of West Virginia, this Court has original jurisdiction in mandamus. By reason of the provisions of Code, 1931, 54--2--1, the circuit courts of the state have exclusive original jurisdiction in eminent domain proceedings. This Court has and may exercise jurisdiction in eminent domain only in its appellate capacity. These principles pertaining to jurisdiction are deemed to be material in this case because, to a considerable extent, the pleadings filed and the depositions taken in behalf of the respective parties in the two proceedings in mandamus apparently were designed to determine whether the real estate in question was or was not actually damaged for public purposes as a consequence of the construction of the public highway in question.

In addition to all other pleadings filed in each of the two mandamus proceedings, the respondents, in each of the two cases, filed a plea of the statute of limitations by which it was asserted that any remedy the petitioners as landowners might otherwise have is barred by the two-year limitation period prescribed by Code, 1931, 55--2--12, as amended. The cases were submitted for decision upon the pleadings, upon the depositions, and upon briefs and oral argument of counsel.

The pleas of the statute of limitations raise some unusual legal propositions. Section 9 of Article III of the Constitution of West Virginia Provides that private property 'shall not be taken or damaged for public use, without just compensation; * * *.' Section 35 of Article VI 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 repeatedly held that the West Virginia Department of Highways, (formerly designated as The State Road Commission), an agency of the state, may be required by mandamus to institute eminent domain proceedings in order to ascertain just compensation for private land taken or damaged for state highway purposes. State ex rel. French v. State Road Commission, 147 W.Va. 619, 129 S.E.2d 831; Hardy v. Simpson, 118 W.Va. 440, 190 S.E. 680. See also Johnson v. City of Parkersburg, 16 W.Va. 402, pt. 3 syl. The second point of the syllabus of the Simpson case is as follows:

'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.' (Italics supplied.)

The following is the language of the first point of the syllabus of State ex rel. Griggs v. Graney, 143 W.Va. 610, 103 S.E.2d 878: '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.' To the same effect, see State ex rel. Phoenix Insurance Company v. Ritchie, W.Va., pt. 1 syl., 175 S.E.2d 428; State ex rel. Teter v. State Road Commission, 152 W.Va. 805, syl., 166 S.E.2d 757; State ex rel. Cutlip v. Sawyers, 147 W.Va. 687, syl., 130 S.E.2d 345.

The pleadings in this case raise an issue of fact relative to the time when the highway construction project involved in this case was completed. In these circumstances, we cannot determine in these mandamus proceedings whether the petitioners are barred by the pertinent statute of limitations from asserting in a proper manner any claim they may have for damages resulting to their respective parcels of real estate by...