State Road Commission of West Virginia v. McMurray

• Decision Date: 15 March 1927
• Docket Number: 5571.
• Citation: 137 S.E. 530,103 W.Va. 346
• Parties: STATE ROAD COMMISSION OF WEST VIRGINIA v. McMURRAY.
• Court: West Virginia Supreme Court

137 S.E. 530

103 W.Va. 346

STATE ROAD COMMISSION OF WEST VIRGINIA v. McMURRAY.

No. 5571.

Supreme Court of Appeals of West Virginia.

March 15, 1927

Submitted November 16, 1926.

Syllabus by the Court.

A petition filed on behalf of the state road commission, under authority of sections 31 and 138, c. 6, Acts 1923, praying for the nomination of 13 freeholders, etc., for the purpose of assessing damages, if any, done to the property of a certain landowner by reason of the taking of additional right of way for the improvement of a certain state highway, and alleging therein that said additional right of way is necessary and that the same has not been obtained from said landowner by the county court in any manner whatsoever, and that said petition is necessary under the sections aforesaid implies on its face that the right of way has been taken over by the said commission in the manner prescribed by law, and that said commission is proceeding to act because the county court has failed to secure said right of way in accordance with the provisions of said section 31.

Where such petition alleges that in the building and construction of a public highway, designated as a state route, it is necessary to take some additional lands for the purpose of widening and improving said route, which, when so widened and improved, will be used for a public highway, and that the lands so taken are necessary for that purpose, held the public character of the use and the necessity therefor are sufficiently alleged.

The rule that the finding of commissioners appointed in eminent domain proceedings to assess damages is not to be disturbed unless good cause be shown against it by clear proof applies where the error complained of does not appear upon the face of the report.

While the statute does not require it, in the interest of justice in cases where the owner, proprietor, or tenant of lands to be taken evinces an intention to contest the taking of his land for road purposes, by appearance in court at the time of the selection of commissioners, notice should be given him of the time that said commissioners will go upon the land to assess the damages.

While the trial judge should refrain from expressing, in any manner, in the presence of the jury, his personal views upon the weight of the evidence, we will not reverse a case for that reason where it clearly appears that such remarks as a whole have not resulted in injury to the exceptor.

Where the trial jury takes the same oath as that administered to commissioners to go upon the land and assess the damages, it is sufficient.

Verdicts are to be liberally construed and upheld unless so defective in form as to be uncertain in meaning.

In cases of this character, courts rarely disturb verdicts of juries, if founded upon any reasonable view of conflicting evidence as to what amount is a just compensation for the owner, proprietor, or tenant of lands, where no substantial error has been committed by the trial court in the admission or exclusion of evidence.

Error to Circuit Court, Jackson County.

Eminent domain proceeding by the State Road Commission of West Virginia against Georgia McMurray. Judgment awarding owner compensation for land taken, and she brings error. Affirmed.

T. J Sayre and Kenna K. Hyre, both of Ripley, for plaintiff in error.

WOODS J.

Georgia McMurray, the owner of a lot of less than an acre in the village of Silverton, fronting on what is now a state highway, complains of a judgment of the circuit court of Jackson county entered on a verdict of a jury assessing damages to said property by reason of the widening of said highway.

In 1924, the state road commission took the road over for state purposes, and after service of notice to the landowner under section 138, c. 6, Acts 1923, improved the same, widening the old 30-foot road to 40 feet. In so doing they demanded a 5-foot strip from Mrs. McMurray. While Mrs. McMurray claims that they took some 11 feet from her property, thereby causing her great damage in removing a certain storeroom, etc., the said commission contends, and offers testimony in support thereof, to the effect that said buildings had been built on the right of way formerly existing, and that she was not entitled to damage by reason of her own acts in encroaching thereon. Notice was served on Mrs. McMurray to the effect that the road commission would ask the circuit court on a certain day to appoint commissioners to go upon the land and assess the damage. Commissioners were appointed, went upon the land, and fixed the damage at $100. In August, 1925, Mrs. McMurray appeared before the circuit court. demurred to the petition, and moved to quasb the original petition seeking to condemn her said land, and also excepted to and moved to quash and set aside the report of the viewers, both of which motions were overruled; whereupon she refused to accept said $100, and demanded that her damages be assessed by a jury. A jury was impaneled and sworn, and found by their verdict that Mrs McMurray was entitled to $150 damages. and judgment entered upon the verdict, over objections of defendant. Defendant comes here on writ of error.

The first point of error raised is that the state road commission had no authority to file its petition under section 31, c. 6, Acts 1923, for the reason that it had not requested the county court to procure the right of way in question as provided by statute. This section provides that:

"If any county court fails or refuses to obtain any right of way necessary for the purpose of constructing, *** or altering any state road within thirty days after being requested so to do by the state road commission, then the state road commission may secure such right of way in the manner *** provided and pay for the same out of the state road fund, which fund shall be reimbursed by the county court of the county in which such right of way is obtained."

The petition alleges that additional right of way over lands of Georgia McMurray is necessary in the improvement of said highway, that the same has not been obtained from said landowner by the county court in any manner whatsoever, and that said proceeding to assess damages was necessary as authorized by sections 31 and 138, c. 6, Acts 1923. These allegations necessarily imply that the county court has failed to act. The law presumes that the said commission as any other suitor comes into court qualified to sue until the contrary be shown. Road Commission v. Young, 100 W.Va. 394, 130 S.E. 478. This point was raised for the first time in this court, and in view of the state of the pleading it is without merit.

The second point of error goes to the sufficiency of the petition. The objections urged are that the lienors, if any are not made parties, and further that the petition does not state for what purpose the estate so taken is to be appropriated, the necessity for the taking, and that it will be devoted to public use. As to the first proposition, section 138, c. 6, Acts 1923, provides that in condemnation proceedings, for road purposes the object is "to ascertain what will be a just compensation, if any, to each proprietor or tenant for the land proposed to be taken." In this respect it differs from the provision of section 4, c. 42, Code, governing ordinary condemnation proceedings. This statute (section 138, c. 6, Acts 1923), has been substantially in effect since the Acts of 1872-73. It was construed in Keystone Bridge Co. v. Summers, 13 W.Va. 476, to the effect that it was unnecessary to give notice thereof to any person having liens on the land taken, or to any claimants to such land, other than the tenant in possession of the land as visible owner. The latter part of section 138, c. 6, under which this land was taken for road purposes, uses the words "owner or owners" in addition to the words "proprietor or tenant." However, we are not called upon to decide this point, since it was not called to the attention of the trial court and was thereby waived. The second proposition is disposed of in Huntington v. Holding Co., 85 W.Va. 241, 101 S.E. 461. There it was held that a petition which alleges that the lands are to be used for widening a certain street, which when so widened will be used as a public street, and that the lands are necessary for that purpose, that the lands are necessary for that purpose,...