State ex rel. Teter v. State Road Commission

• Decision Date: 25 March 1969
• Docket Number: No. 12743,12743
• Citation: 152 W.Va. 805,166 S.E.2d 757
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. John C. TETER et al. v. STATE ROAD COMMISSION of West Virginia et al.

Page 757

166 S.E.2d 757

152 W.Va. 805

STATE ex rel. John C. TETER et al. v. STATE ROAD COMMISSION of West Virginia et al.

No. 12743.

Supreme Court of Appeals of West Virginia.

Submitted March 11, 1969.

Decided March 25, 1969.

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

Bonn Brown, Elkins, Louis R. Tabit, Montgomery, for relators.

John E. Busch, Jr., Elkins, for respondents.

BERRY, Judge.

This is a proceeding in mandamus instituted under the original jurisdiction of this Court by the petitioners John C. Teter and Gladys M. Teter to compel the respondent the State Road Commissioner to institute condemnation proceedings against them to ascertain the damage which they allege was caused to their property by the construction of a new highway adjacent thereto, causing the casting of a body of water onto their premises. The rule in mandamus was granted on May 27, 1968 for the respondent to show cause why a writ of mandamus should not be awarded directing the respondent to institute condemnation proceedings, the rule having been made returnable September 4, 1968. After several continuances the case was submitted for decision on arguments and briefs March 11, 1969 at the January Regular Term, 1969. This proceeding was instituted by virtue of the provisions of Section 9 of Article III of the Constitution of West Virginia, wherein it is stated that private property shall not be taken or damaged for public use without just compensation. The petitioners named both Commission and Commissioner as respondents but for the sake of simplification we treat them as one.

The petitioners are joint owners of real estate alleged to be damaged lying between an old and a new road and consisting of lots 14 and 15, block 1, Schoonover Addition, Leadsville District, Randolph County, West Virginia. Old Route U.S. (W.Va.) 219/250, from Elkins to Beverly ran in front of the petitioners' property, and the water drainage in front of their lots ran along the edge of the old road toward Isner Creek in a southerly direction. On the back of their lots the drainage originally ran in a westerly direction from the rear of their property and apparently across the area where the new highway was later constructed and followed a natural slope turning south to Isner Creek. The new road bearing the same numbers was constructed behind the petitioners' property some time during 1966 or 1967 and was raised about 18 feet above the former level of the land in that area and thus occupies the land that formerly drained the surface water into Isner Creek. The new road crossed, or went over, a street known as Russell Street which the petitioners allege was the natural drainage course of the water from the front to the rear of their property as this street ran down the north side of petitioners' property from front to rear. The new road having thereby blocked Russell Street, petitioners claim that the surface water stopped at the fill of the new road and flooded the rear of their lots.

Consequently, it is the contention of the petitioners that the building of the new road in this area created a dam-like barrier sitting on the natural drainage slope and prevented the water from draining into Isner Creek as it formerly did. The petitioners say they requested the State Road Commission to place a culvert under the road to allow the water to drain from the vicinity of Russell Street as it formerly did, but that the request was refused.

The State Road Commission constructed a ditch across Russell Street and along the rear of the petitioners' property in a southerly direction to Isner Creek. The petitioners claim this ditch is not sufficient to drain from their property the water which is thrown on it by virtue of the new road, because the area where the water pools on their property is lower than the course of the ditch. The respondent contends that the ditch is of proper slope and sufficient to carry the water away and is never over a quarter or half filled after a heavy rainfall.

It is the contention of the respondent that buildings erected by petitioners and third persons and surrounded by paved parking lots have been placed in the area north of petitioners' lots 14 and 15 and that the area paved to the north of the petitioners' property including what is left of Russell...