State Of West Va. v. Horner, (CC 599)

• Citation: 121 W.Va. 75
• Decision Date: 21 February 1939
• Docket Number: (CC 599)
• Court: Supreme Court of West Virginia
• Parties: State of West Virginia v. Theodore Horner, et al.

121 W.Va. 75

State of West Virginia

v.Theodore Horner, et al.

(CC 599)

Supreme Court of Appeals of West Virginia.

Submitted February 1, 1939.

Decided February 21, 1939.

1. Eminent Domain

Under Acts, 1st Ex. Sess., 1936, Ch. 13; Michie Code, 1937, 17-4-5, the State Road Commission, as a public corporation, may prosecute a proceeding to acquire by right of eminent domain land reasonably necessary for the location and construction of a public road, or to straighten, widen or otherwise improve the same.

2. Highways

"The words or terms 'road', 'public road', or 'highway', shall be deemed to include the right of way, roadbed and all necessary culverts, sluices, drains, ditches, waterways, embankments, slopes, retaining walls, bridges, tunnels and viaducts * * *." Code, 17-1-3.

3. Eminent Domain

The amount of land reasonably necessary for a public road, including the slopes and fills thereof, is, primarily, a matter within the discretion of the administrative board or official seeking to acquire the same; and such discretion will not be interfered with by the courts unless there is a showing of bad faith, or that the same has been capriciously or fraudulently exercised.

Error to Circuit Court, Lewis County.

Proceeding by the state of West Virginia, by State Road Commissioner of West Virginia, against Theodore Horner and another to acquire land by right of eminent domain. Separate demurrers to the petition and to the amended petition were overruled, and the legal questions arising thereon were, by the Circuit Court on its own motion, certified to the Supreme Court of Appeals for decision.

Affirmed.

Clarence W. Meadows, Attorney General, Forrest B. Poling, Assistant Attorney General, and James H. Brewster, Jr., for plaintiff.

Waugh & Waugh, for defendants.

Fox, President:

Theodore Horner and Belle Horner are the owners of a tract of land in Lewis County, through which federal highway route 19 passes, said highway being located on a right of way forty feet in width, heretofore acquired by public authorities for that purpose, and on which right of way is the paved highway eighteen feet in width. The State Road Commission proposes to acquire two additional strips of twenty feet in width on the east side of said highway, located at different points thereon, and on November 4, 1937, filed its original petition describing the lands proposed to be taken, one tract containing.22 of an acre, more or less, and the other,.4 of an acre, more or less, and alleging, in effect, that it had designated that portion of the said highway in Lewis County as project No. 156-B, and is "constructing, straightening, grading, widening and otherwise improving said road"; that, for that purpose, it was necessary to "pass over, through and upon" the lands proposed to be taken; that it had filed with the clerk of the county court of Lewis County plats or maps showing the land to be acquired; and that it had been unable to agree with the owners of the land as to the amount of compensation which should be paid therefor. Later, the road commission filed its amended petition, in which it was alleged that the proposed improvement was a part of what was formerly termed a "beautification project" and later, "roadside improvement project", sponsored by the Federal Government, and that the real purpose of such roadside improvement was to reduce the angle of slopes, and cover the same with vines, trailing plants and small trees which would materially reduce the cost of future maintenance, necessitated by the erosive forces of nature upon bare cuts and fills. It was further alleged that the maintenance of route 19 in that section was expensive, and that the completion of the proposed project for which the additional land was sought would materially reduce the maintenance costs. The other allegations in the amended petition are not materially different from those contained in the original petition. Separate demurrers were interposed by the defendants to each of the said petitions and both were overruled, and the legal questions arising thereon were, by the circuit court of Lewis County on its own motion, certified to this court for decision.

The demurrer to the original petition is based upon the proposition (1) that the State Road Commission is not authorized by law to condemn lands for public use; (2) that the said commission is not authorized to designate a road as a state road in order to construct, straighten, grade, widen or otherwise to improve such road; (3) that the said commission is not authorized to file with the clerk of the county court the plat or map required by law to be so filed; and (4) that the State Road Commission is not authorized to institute a proceeding to acquire lands necessary for roads and road maintenance. The demurrer to the amended petition, in effect, raises the same questions and, in addition: that (1) the amended petition, as well as the original petition, fails to allege that the petitioner desires to acquire the land for the purpose of constructing, widening, straightening, grading or altering a state road, but, on the contrary, that the land is sought for other purposes, termed in the demurrer as "a slope planting project"; and (2) that it appears from the petition that the land sought to be taken is not for the purpose of a road as defined by statute.

Considering first the question of what is meant by a road, we do not go further than to refer to Code, 17-1-3, which defines the words or terms "road", "public road", or "highway" to "include the right of way, roadbed and all necessary culverts, sluices, drains, ditches, waterways, embankments, slopes, retaining walls, bridges, tunnels and viaducts necessary for the maintenance of travel, dispatch of freight and communication between individuals and communities." We think, therefore, that when the petitioner stated its intention to acquire land for the purpose of constructing,...