State ex rel. Wells v. City of Dunbar
| Decision Date | 11 December 1956 |
| Docket Number | No. 10813,10813 |
| Citation | 95 S.E.2d 457,142 W.Va. 332 |
| Parties | STATE of West Virginia ex rel. E. M. WELLS and Lucy I. Wells, v. The CITY OF DUNBAR, a Municipal Corporation, and D. L. Salisbury, Mayor. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. A municipal corporation, acting pursuant to statutory authority, in the construction or maintenance of a toll bridge necessary or convenient for travel by the public to and from the public ways of such municipality, acts in a governmental, not a proprietary, capacity.
2. Restrictive covenants contained in a deed conveying real estate, limiting the use thereof to residential purposes, can not be construed so as to affect the right of the State, or its governmental agencies, in the exercise of the rights of eminent domain in the acquisition of such property for governmental purposes.
3. Damages recoverable in a proceeding in eminent domain must be damages to the residue of a property taken beyond all benefits in respect to such residue, damages from the works to be constructed, or damages resulting from the use of the property for the purposes for which taken.
Donald L. Schaffer, Charleston, for plaintiffs in error.
S. L. Flournoy, B. J. Pettigrew, Jr., Charleston, for defendants in error.
Relators, E. M. Wells and Lucy I. Wells, owners in fee simple of Lot K of the Houston Subdivision, in the City of South Charleston, instituted an original proceeding in mandamus in the Circuit Court of Kanawha County, praying that a peremptory writ be awarded requiring defendants, The City of Dunbar and D. L. Salisbury, Mayor, to prosecute an action in eminent domain for the purpose of ascertaining just compensation owing relators for the taking and damaging of Lot K, in the construction and maintenance of a toll bridge by the City of Dunbar, across the Kanawha River, from Dunbar to South Charleston. An amended and supplemental petition was later filed. A demurrer to the amended petition was overruled by the circuit court and an order entered by that court awarding the writ as prayed for. This Court granted a writ of error to the order of the circuit court granting the peremptory writ.
Lot K, owned by relators, adjoins Lot L of the same subdivision. The toll bridge was constructed over Lot L. No part of the bridge is on or touches the lot of relators. The City of Dunbar, long before the commencement of the present proceeding, instituted a proceeding for the purpose of condemning Lot L. During the pendency of that proceeding, the city acquired title to Lot L by virtue of a deed therefor from the owners thereof, and the proceeding instituted for the purpose of condemning the lot was dismissed. The amended petition alleges that Lot L, and all other lots of the named subdivision, are subject to certain covenants running with the land, created by the following language contained in various deeds:
'This conveyance is made with the following conditions, limitations, agreements and restrictions, to-wit:
'The said party of the second part agrees that he will not lease, rent or convey the said property, or any part thereof, to any person or persons of African descent in any degree whatsoever; that he will use said property exclusively for residence purposes and not conduct thereon any business, and that he will not erect thereon or maintain any bill board or other advertising device; that he will not erect thereon any other building or buildings except a garage or garages; that such residence shall front on said driveway along the said right of way of said street car line * * *'.
The precise contention of relators is that the covenants binding owners of lots in the subdivision to use the 'property exclusively for residence purposes and not conduct thereon any business' constitute in such lot owners vested rights, a 'sort of equitable appendix' or 'equitable servitudes', which can not be taken, destroyed or damaged without payment of just compensation; and that the construction of the toll bridge by the City of Dunbar constituted a taking or damaging of such rights.
Before the commencement of the construction of the bridge, relators had constructed on Lot K, owned by them, a large, two story, single family dwelling. The relators alleged, in the amended petition, 'That both in the process of the construction and erection of said bridge and driving piles for said piers, as well as the use of said bridge, petitioners' house was and is violently shaken and severely jarred from vibrations therefrom, resulting in large cracks in the masonry basement walls of said dwelling house, in the side walls, chimney, hearth and interior plaster, and many of such cracks occurred long after the driving of said piles, all causing substantial damage to said premises, resulting in petitioners' said home being rendered undesirable for occupancy and because thereof the market value has materially declined and decreased.'
The amended petition charges that the bridge is 'particularly obnoxious and damaging' to the property owned by relators, that the property is greatly reduced in value, and that their 'property has been damaged and essentially taken and confiscated in an arbitrary and unconstitutional manner without due process of law, all in defiance of one of the basic tenents of eminent domain. i. e., that private property shall not be taken or damaged without due compensation therefor.'
Defendants filed an answer denying any violation of the restrictive covenants, and any taking or damaging by them of the property of relators. They also filed a special plea to the amended petition of relators, alleging, in effect, that damages, if any, suffered by relators, occurred more than two years prior to the institution of an action therefor, and that 'Any claim for damages to the property of said petitioners allegedly resulting from the driving of piles is barred by the Statute of Limitations applicable to such claims'.
Two principal questions are argued: (1) Do restrictive covenants, of the nature of the covenants here alleged to have been violated, constitute such property rights in the owners of lots in a subdivision for which just compensation must be paid by a governmental agency when one of such lots is acquired for governmental purposes? (2) Was the construction of the bridge by the City of Dunbar, or the maintenance thereof, a violation of any covenant created by the pertinent language contained in the conveyances of lots within the subdivision, quoted above?
Before considering either of the controlling questions, we notice a difference in the positions of the litigants with reference to whether the City of Dunbar, in the construction of the toll bridge, was acting in a proprietary or governmental capacity. If acting in a proprietary capacity, relators would have available adequate remedies at law, making mandamus inappropriate. See Ward v. County Court of Raleigh County, W.Va., 93 S.E.2d 44. In cases like Hardy and Deitz v. Simpson, 118 W.Va. 440, 190 S.E. 680, 191 S.E. 47, it is pointed out that under the Constitution, suit can not be maintained against the State because of the immunity of the State, and that for the reason no other available remedy exists, mandamus will lie against a governmental agency in such cases as the instant one. The reasoning has no application where a city may be sued in its proprietary capacity. It seems clear, however, that the City of Dunbar was acting in its governmental capacity in the construction of the bridge. The bridge constitutes part of a public way, leading from the City of Dunbar to a state highway, and must be presumed necessary for convenient or necessary travel by the public to and from that city. See State ex rel. State Road Comm. v. O'Brien, W.Va., 82 S.E.2d 903; State ex rel. Knight v. Hanway, Mayor, 136 W.Va. 219, 67 S.E.2d 1; Cavender v. City of Charleston, 62 W.Va. 654, 59 S.E. 732. In view of the holdings in...
To continue reading
Request your trial
-
Washington Suburban Sanitary Com'n v. Frankel, 369
...v. Wynne, 279 S.W. 916 (Tex.Civ.App.1925); but cf. Houston v. McCarthy, 464 S.W.2d 381 (Tex.Civ.App.1971); and State ex rel. Wells v. Dunbar, 142 W.Va. 332, 95 S.E.2d 457 (1956). 4 If non-compensability is the touchstone, despite recognition of a negative easement as a property right, Kentu......
-
School Dist. No. 3 of Charleston County v. Country Club of Charleston
...Board of Public Instruction of Dade County, Florida v. Town of Bay Harbor Islands, Fla., 81 So.2d 637; State of West Va. ex rel. Wells v. City of Dunbar, 142 W.Va. 332, 95 S.E.2d 457; Smith v. Clifton Sanitation District, 134 Colo. 116, 300 P.2d '* * * So where an easement is in the form of......
-
Waynesburg Southern R. Co. v. Lemley
...to permit any restrictions of it by private contract.' That syllabus point was quoted with approval in State ex rel. Wells v. The City of Dunbar, 142 W.Va. 332, 95 S.E.2d 457. In 1 Nichols on Eminent Domain, Section 1.141(4) this proposition was stated in this manner: 'The power (eminent do......
-
State Road Commission v. Penndel Co., 1-3
... ... proposed to build a railroad which would commence near the city of Wheeling, in Ohio County, ... proceed along or near Wheeling Creek, ... Johnson, 137 W.Va. 19, 69 S.E.2d 393; State ex rel. Wells v. City of Dunbar, 142 W.Va. 332, 95 S.E.2d 457; United States ex ... ...