State Of West Va. v. C. Sanders et al.

• Decision Date: 04 December 1945
• Docket Number: (No. 9645)
• Citation: 128 W.Va. 321
• Parties: State of West Virginia, etc. v. C. Sanders et al.1945.
• Court: West Virginia Supreme Court

128 W.Va. 321

State of West Virginia, etc.

v.C. Sanders et al.

(No. 9645)

Supreme Court of Appeals of West Virginia.

Submitted September 11, 1945.

Decided December 4, 1945.

1. Eminent Domain

The true measure of damages to land abutting on a public road, as distinguished from land actually taken, occasioned by widening, regrading and repaying thereof, is the difference between the value of the land immediately before, and its value immediately after the road improvement, all benefits being considered and included in the latter value. Point 4 syllabus, Peddicord v. County Court, 121 W. Va. 270, and opinions in Hardij v. Simpson, 118 W. Va. 440, and State v. Jacobs, 121 W. Va. 592, in so far as stated therein that peculiar benefits only may be included in the value of land after completion of the improvement, are disapproved.

2. Eminent Domain

Damages to a retaining wall, which encroaches upon the right of way of a public road, caused by regrading, widening and repaving of such road, in the absence of arbitrary and wilful conduct on the part of condemnor in constructing the road improvement, may not be considered in a proceeding in eminent domain to assess damages to the abutting land.

3. Eminent Domain-

In a proceeding in eminent domain the cost of a retaining wall, when it is shown that the construction of such wall is required to preserve the property from further injury and render it fit for use and enjoyment, is an element of damages to be considered by the jury, but such cost being only a fact tending to show damages to the property, is not the measure thereof.

4. Eminent Domain

Under Code, 54-1-1, and 54-2-16, costs may be recovered from the State of West Virginia in a proceeding in eminent domain instituted by the State.

Error to Circuit Court, Boone County.

Eminent domain proceeding by State of West Virginia, by the State Road Commission of West Virginia, against C. Sanders and Elizabeth Sanders to ascertain damage to abutting land caused by improvement of public road. The circuit court overruled a motion to set aside jury's verdict ascertaining defendants' damages and entered judgment on the verdict, and plaintiff brings error.

Judgment reversed; verdict set aside; new trial awarded.

Ira J. Partlow, Attorney General, W. Bryan Spillers, Assistant Attorney General, and H. G. Williamson, Special Assistant Attorney General, for plaintiff in error.

Lovins, President:

The State of West Virginia by the State Road Commission of West Virginia, hereinafter called "applicant", filed a petition in the Circuit Court of Boone County, praying that commissioners be appointed to ascertain the damages to the lands of C. Sanders and Elizabeth Sanders, hereinafter called "respondents". Commissioners, appointed pursuant to the petition, reported that the amount of respondents' damage was three hundred fifty dollars. Upon respondents' exception to the report, a trial by jury was had, resulting in a verdict of fifteen hundred dollars in favor of respondents, which was set aside by the trial court. The judgment of the trial court in setting aside the verdict was affirmed by this Court. State v. Sanders, 125 W. Va. 143, 23 S.E. 2d 113.

When the proceeding was remanded, another jury trial resulted in a verdict for respondents in the amount of seventeen hundred fifty dollars. The trial court overruled a motion to set aside the verdict and entered judgment thereon. Applicant was awarded this writ of error.

The land of respondents, situate in the Town of Madison, abuts on U. S. Route No. 119 for about one hundred twenty feet. Prior to the time the work was commenced, a retaining wall had been erected extending along sixty feet of the frontage, which wall encroaches from eight to twelve inches on the road right of way. There was a natural slope from respondents' land into the right of way along and in front of the remaining sixty feet. In regrading, widening, and repaving the highway the retaining wall was damaged to such an extent that the wall cracked and, according to the respondents' testimony, was in such condition that a new wall must be erected. The slope was excavated to or near respondents' property line so that there is now an abrupt declivity approximately seven feet in height in front of one-half of respondents' land. No land belonging to respondents was taken, and the questions here presented relate to the damage, if any, done to respondents' land. No evidence appears in the record to show that a paper grade for the road had been established. A witness for applicant testified that the grade of the road was raised tv/o inches at one point and eight inches at another.

The witnesses for respondents gave varying opinions of the value of the land immediately after the road improvement, ranging from fifteen hundred to twenty-five hundred dollars; but all of the opinions expressed by the witnesses as to the difference in value were predicated upon the cost of constructing a retaining wall along the entire frontage of respondents' land. No evidence is disclosed by the record showing that the land of respondents has cracked, slipped or subsided. A stratum of rock underlies respondents' land to a depth of about one foot along the steep declivity mentioned above. Likewise there is no showing that respondents have been deprived of ingress and egress to and from the road. According to the testimony, it will cost approximately twenty-five hundred dollars to construct to retaining wall along the entire one hundred twenty-foot frontage. For statement of additional facts see opinion in State v. Sanders, supra.

Five errors were assigned by applicant as grounds for reversal of the judgment. The first two are predicated upon the admission of testimony relative to damage to the existing retaining wall and injury to respondents' land caused by the excavation of that part of the slope in the right of way and will be discussed together. It is contended that since applicant is not liable for damages to the retaining wall or for the removal of the slope within its own right of way, they are not proper elements of damage to be considered by the jury in arriving at its verdict, and that it was error to permit consideration thereof as showing damage to respondents' land. The elements of damage to land which may be considered in a proceeding in eminent domain, are so closely connected with the measure of damages that we deem it necessary to advert to and restate the rule by which damages are measured. The present unsettled state of the law of this State with respect to the measure of damages to the residue of land, where only a part thereof is taken, as well as where no land is taken, but damaged, calls for a determination of the proper rule to be applied. See Editor's note Vol. 3, Permanent Supplement, Michie's Digest, page 121 and 46 W. Va. Law Quarterly 320.

We think the same rule should apply in measuring damages to the residue of land where a part thereof is appropriated for public use, as well as in a situation where no land is taken, but damages result from the construction of the improvement wholly on the land or on an easement belonging to the condemnor. The fifth point of the syllabus in the case of Jones v. City of Clarksburg, 84 W. Va. 257, 99 S.E. 484, states the rule formerly applicable to a change in grade, where no land is taken as follows: "The true measure of damages to property abutting on a public street, occasioned by a change in the grade thereof, is the difference between the value of the property immediately before, and its value immediately after, the street improvement, special or peculiar, but not general, benefits to the property being considered in the latter value." At the time of the decision in the Jones case, the applicable statute required that special or peculiar benefits be set off against the diminished value of the land damaged for public use. Chapter 81, Acts of the Legislature, 1901. See also Chapter 80, Acts of the Legislature, 1882; Chapter 42, Section 14, Barnes' Code, 1923; Code 54-2-9. By a subsequent legislative enactment commissioners appointed to assess damages in condemnation proceedings were required to set off against damages to the residue of the land all benefits derived by such residue from the work to be constructed. Chapter 28, Acts of the Legislature, Regular Session, 1933. When the question of damage is submitted to a jury it is governed by the same rule. Code, 54-2-10.

The right of eminent domain is inherent in the government of this State. Section 9, Article III of the Constitution is a limitation on that right and provides in part; "***** the compensation to the owner shall be ascertained in such manner, as may be prescribed by general law; *****.'' By way of dictum this Court has said: "The Constitution guarantees ultimate compensation, but the legislature may make reasonable provisions for the ascertainment and payment thereof." Hardy v. Simpson, 118 W. Va. 440, 442, 190 S.E. 680. Decided cases from other jurisdictions are meager. It has been held that after proceedings in eminent domain have commenced, but before trial, the right to any benefits as an off-set may be eliminated by the legislature. Railway Co. v. Hall, 67 111. 99. The legislature in providing for the exercise of eminent domain may, in its discretion, forbid any benefits to be considered as offsets against damages to land. Miller v. City of Asheville, 112 N. C. 759, 16 S. E. 762, 764. Methods for the ascertainment of a just compensation to a landowner in proceedings in eminent domain being procedural may be changed by the legislature without depriving the landowner of any constitutional right. Elks v. Board of Com'rs, 179 N.C. 241, 102 S.E. 414; Goode v. City of Asheville, 193 N.C. 134, 138 S.E. 340; Town of Ay den v. Lancaster, 197 N.C. 556, 150 S.E. 40. This Court in the case of Peddicord v. County Court, 121 W. Va. 270, 3 S.E. 2d 222, applied the measure of damages as laid down in the case of Jones v. City of...