State Of West Va. v. Painter

• Decision Date: 11 October 1938
• Docket Number: (No. 8790)
• Citation: 120 W.Va. 486
• Parties: State of West Virginia, by State Road Commission, v. Mary J. Painter et al, Clarence A. Painter,Plaintiff in Error
• Court: West Virginia Supreme Court

120 W.Va. 486

State of West Virginia, by State Road Commission,

v.Mary J. Painter et al, Clarence A. Painter, Plaintiff in Error

(No. 8790)

Supreme Court of Appeals of West Virginia.

Submitted October 4, 1938.

Decided October 11, 1938.

1. Eminent Domain

"Under Chapter 122 of the 1937 Acts of the Legislature [amending and re-enacting Code 1931, 54-2-14] in a case where entry is made upon the land sought to be taken, it will become the duty of the court entering the final award to provide for the payment of interest at the legal rate during the time between the taking and the final payment of the money due, * * * " (Simms V. Dillon, 119 W. Va. 284, 193 S. E. 331, Point 3 Syl.); provided it clearly appears that the jury did not include interest in its verdict.

2. Eminent Domain

In a proceeding in eminent domain, where entry is made on the land sought to be taken prior to the payment of compensation, and there is nothing in the record to indicate that the jury omitted from its verdict interest from the d'ate the property was taken, it will be presumed that interest is embraced in the amount of the jury finding, and the court cannot add interest to the verdict.

Error to Circuit Court, Taylor County.

Petition by the State of West Virginia, by the State Road Commission, against Mary J. Painter and others for the appointment of commissioners to ascertain a just compensation for certain land sought to be condemned for road purposes. To review a judgment in which the court failed to include interest from the date of the commissioners' report, Clarence A. Painter brings error.

Affirmed.

Clarence W. Meadows, Attorney General, and Forrest B. Poling, Assistant Attorney General, for plaintiff. G. W. Ford, for defendant.

Riley, Judge:

The State Road Commission, in the name of the State of West Virginia, filed its petition in the Circuit Court of Taylor County against Mary J. Painter praying for the appointment of commissioners to ascertain a just compensation for certain land sought to be condemned for road purposes. Mary J. Painter having died pending the litigation, the case was revived in the name of Clarence A. Painter, only heir at law (plaintiff in error) and Clarence A. Painter, administrator, etc.

On March 7, 1936, the circuit judge, in the vacation of the court, entered an order appointing commissioners, which order gave to the condemnor, its agents and employees the right, from the date thereof, to enter upon the land sought to be condemned. The commissioners, on March 24, 1936, went upon the land and reported the sum of $1100.00 as a just compensation. Exceptions were taken to this report and a jury trial had. On February 8, 1938, the jury found in favor of the condemnee in the amount of $1700.00. The final order, entered on February 25, 1938, rendered judgment thereon, with interest from February 8, 1938. It discloses that the condemnee moved that judgment be entered in his favor in the amount of the jury verdict with interest thereon from March 24, 1936, the date of the commissioners' report, until paid. It also contains a recital that the condemnor took possession of said land about two weeks prior to the date of the commissioners' report.

The sole question presented here is the refusal of the trial court to include in the judgment interest from March 24, 1936. The attorney general, in support of the circuit court's ruling, proceeds upon the theory that interest cannot run against the State. The authorities cited deal with general indebtedness and tort liability. Shaw V. Monongahela Railway Co., 110 W. Va. 155, 157 S. E. 170, relied upon, though indexed in the volume of the reports under headings of "Eminent Domain" and "Damages", involves an action for damages to property caused by the erection of an overhead bridge or viaduct in front of and in the immediate vicinity thereof, and therefore is not in point. Whether, in such cases, the state is liable for interest, we need not decide.

Constitutional grounds alone prompted this Court, in the case of Simms V. Dillon, 119 W. Va. 284, 193 S. E. 331, 113 A. L. R. 787, to hold that in a proceeding in eminent domain the condemnee is entitled to interest from the time of the taking until the final payment. The reasons advanced for our holding in the Simms case are relied upon here. They need not be repeated in detail. Article III, Section 9 of the West Virginia Constitution provides: "Private property shall not be taken or damaged for public use without just compensation * * *." (Italics supplied.) And the Fourteenth Amendment to the Constitution of the United States prohibits any state from depriving any person of life, liberty and property without due process of law. Thus, both by the due process clause of the Fourteenth Amendment to the Constitution of the United States and Article III, Section 9 of the West Virginia Constitution, the right to just compensation for land taken is secured to a property holder whose property is taken for public purposes. The Supreme Court of the United States, in determining whether the Michigan condemnation statute was constitutional, in like manner construed a clause of the Michigan constitution, in conjunction with the Fourteenth Amendment to the Federal Constitution. Dohany v. Rogers, 281 u. S. 362, 74 L. Ed. 904, 50 Sup. Ct. 299, 68 A.L.R. 434. Time and again, the Supreme Court of the United States, in proceedings in eminent domain, brought by the United States, has held that under the Fifth Amendment to the Constitution of the United States, the provision of which, so far as compensation is concerned, is identical with the compensation provision in the West Virginia Constitution, just compensation includes interest where the property is taken before payment. Jacobs v. U. S., 290 U. S. 13, 78 L. Ed. 142, 54 Sup. Ct. 26, 96 A. L. R. 1; BrooksScanlon Corp. v. U. S., 265 U. S. 106, 68 L. Ed. 934, 44 Sup. Ct, 471; U. S. v. Benedict, 261 U S. 294, 67 L. Ed. 662, 43 Sup. Ct. 357; Seaboard Air Line R. Co. v. U. S., 261 U. S. 299, 67 L.Ed. 664, 43 Sup. Ct. 354; U. S. v. Rogers, 255 U. S. 163, 65 L....