State Road Commission v. Hereford

• Citation: 151 W.Va. 526,153 S.E.2d 501
• Decision Date: 21 March 1967
• Docket Number: No. 12632,No. 354--T,No. 1--64--1,No. 354,1--64--1,354,354--T,12632
• Court: Supreme Court of West Virginia
• Parties: The STATE ROAD COMMISSION of West Virginia, etc., et al., (Project(31) O Parcel) v. John W. HEREFORD, Judge, Circuit Court of Cabell County et al. The STATE ROAD COMMISSION of West Virginia, etc., et al., (Project(31) O Parcel--Tract 11) v. John W. HEREFORD, Judge, Circuit Court of Cabell County et al.

Page 501

153 S.E.2d 501

151 W.Va. 526

The STATE ROAD COMMISSION of West Virginia, etc., et al., (Project No. 1--64--1(31) O Parcel No. 354) v. John W. HEREFORD, Judge, Circuit Court of Cabell County et al.

The STATE ROAD COMMISSION of West Virginia, etc., et al., (Project No. 1--64--1(31) O Parcel No. 354--Tract 11) v. John W. HEREFORD, Judge, Circuit Court of Cabell County et al.

No. 12632.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 14, 1967.

Decided March 21, 1967.

Syllabus by the Court

1. After the expiration of the term at which a final order was entered in an eminent domain proceeding, adjudicating the matters involved in an action and fixing the rights of the parties, the court which entered the order is without authority, unless authorized by statute, to modify or vacate it.

2. When a trial court exceeds its legitimate powers by entering a void order prohibition will lie to prohibit the enforcement of such order.

3. It is within the sole discretion of an agency endowed with the power of eminent domain to determine the quantity of land that is necessary for public use and that discretion will not be interfered with by the courts unless it has been abused.

Anthony G. Halkias, Charleston, for relators.

Greene, Ketchum, Baker & Pauley, Lawrence L. Pauley, Huntington, for respondents.

CAPLAN, Judge:

In this original proceeding in prohibition the petitioners, the State Road Commission of West Virginia and Birl A. Sawyers, State Road Commissioner of West Virginia, filed a petition seeking to prohibit The Honorable John W. Hereford, Judge of the Circuit Court of Cabell County, from enforcing the order of said court entered on May 13, 1966, which set aside a final order entered on January 14, 1966 and awarded the defendants a new trial and further ordered that that case be consolidated and tried together with the second case instituted by the State Road Commission. On December 5, 1966 a rule was granted by this court returnable on January 17, 1967. By agreement of the parties, the case was continued twice and on February 14, 1967 it was submitted for decision upon the petition, with its exhibits, the answer of the respondents, the replication of the petitioner to the answer, the petitioner's demurrer to the answer, a stipulation of facts and upon the arguments and briefs of counsel.

The petitioners allege that it became necessary to acquire certain land for the purpose of constructing an access road to that certain highway designated as Route No. I--64. Pursuant to statutory authority and in accordance with this determination the petitioners on June 28, 1963 instituted an action, designated Case No. 10235, in the Circuit Court of Cabell County wherein they sought to condemn and acquire 1.81 acres of the land of B. B. Thompson and others.

As provided in Code, 1931, Chapter 54, Article 2, as amended, commissioners were appointed by the court to ascertain the amount of compensation to which the property owners would be entitled. After hearing evidence on the value of the property involved, the commissioners, on October 21, 1963, awarded the defendants $9,600.00 as just compensation for the property taken and for damages to the residue of 9.79 acres. Both parties excepted to the report of the commissioners and a jury trial was demanded. Upon the trial of this matter, the jury, on May 22, 1964, returned a verdict awarding to the defendant property owners the sum of $9,000.00. The defendants in that proceeding filed a motion to set aside the verdict and argument thereon was heard on January 22, 1965. By letter memorandum dated June 7, 1965, the court overruled the defendants' motion and on January 14, 1966 effected such ruling by entering a final order overruling the defendants' motion and entering judgment on the verdict.

Several months after the verdict, but prior to the final order of January 14, 1966, a landslide occurred on the residue of the defendants' land which according to the best judgment of the petitioners, prevented the construction of the planned access road to such residue.

The petitioners believing that it was necessary, by reason of the landslide, to acquire an additional 1.58 acres of the residue, on November 18, 1965, instituted a second condemnation proceeding, designated Case No. 14478. The express purpose of this action was to acquire the land necessarily taken because of the landslide and to compensate the landowners therefor and for any damages to the residue, including their admitted inability to construct the formerly planned access road to the defendants' remaining property.

The defendants filed an answer in Case No. 14478 contesting the petitioners' right to take the additional 1.58 acres. On April 22, 1966, during the hearing on the question raised in the answer, wherein the court ruled that such right did exist, Mr. chad W. Ketchum, who represented these defendants in Case No. 10235, was in the courtroom. After the court so ruled, Mr. Ketchum presented an oral motion to set aside the final order of January 14, 1966, entered in Case No. 10235, to set aside the jury verdict, to award a new trial and to consolidate the two cases to be tried as one. This oral motion was made without any notice to the petitioners. The court indicated that the motion would be granted and directed Mr. Ketchum to prepare an order in accordance with its ruling.

The first order prepared and presented by Mr. Ketchum was based on constructive fraud committed by the State Road Commission in obtaining the first verdict and was refused by the court. However, on May 13, 1966, the trial court entered an order sustaining Mr. Ketchum's motion, to which the petitioners objected and excepted. The basis for the court's ruling is that the petitioners represented, during the first proceeding, that they would construct an access road to the residue of the defendants' property but that, due to the condition occasioned by the landslide, they are unable to do so. This, the court reasoned, constituted newly discovered evidence which by due diligence could not have been discovered prior to that time. The court further commented that the landslide was caused by the failure of the petitioners to conduct a proper investigation during the subject road construction. There is no evidence in the record of this proceeding upon which to base such conclusion.

This proceeding was instituted to prohibit the Judge of the Circuit Court of Cabell County from enforcing its order of May 13, 1966.

The petitioners contend that the trial court's order of May 13, 1966, if enforced, will constitute an abuse and usurpation of such court's power in that, in the circumstances of the proceedings below, it had no authority to set aside the final order of January 14, 1966. It being apparent therefrom, say the petitioners, that the court exceeded its legitimate powers, a writ of prohibition will lie to prevent the enforcement of said order. It is also asserted by the petitioners that where the trial court exceeds its legitimate powers, the party complaining of its action is not required to proceed with the trial and depend upon appellate relief to rectify the court's error. Furthermore, it is the position of the petitioners that the principle of granting a new trial on the basis of newly discovered evidence had no application in the proceedings below.

The respondent in this proceeding, relying on a 1963 amendment of Code, 1931, Chapter 54, Article 2, Section 10, as amended, contends that the subject action in eminent domain is within the West Virginia Rules of Civil Procedure. He also asserts that the petitioners' representation in Case No. 10235 that they would construct an access road and their subsequent inability to do so by reason of the landslide constitutes an error in fact which, under the provisions of Code, 1931, Chapter 58, Article 2, Section 3, would confer authority on the court to set aside the final order of January 14, 1966; that the court had jurisdiction of the subject matter in controversy and did not, therefore, exceed its legitimate powers; and that the writ here sought should be denied because of the inequitable conduct of the petitioners.

In arriving at a solution of the questions presented in this proceeding, let us first consider the respondent's contention that the actions in eminent domain involved here are within the operation of the West Virginia Rules of Civil Procedure, promulgated and adopted by this Court and made effective July 1, 1960. Rule 81(a)(6), R.C.P., provides: 'These rules do not apply to proceedings to condemn real or personal property.' The respondent reasons that Code, 1931, Chapter 54, Article 2, Section 10, as amended, providing for trial by jury in eminent domain cases, having been amended and reenacted in 1963, supersedes the above quoted Rule 81(a)(6), and brings the subject case within the rules. He relies on language of that statute, 'The cause shall be tried as other causes in such court,' to mean that the Legislature in 1963 intended to, and did, place eminent domain cases on the same basis as all other civil actions, thereby abolishing Rule 81(a)(6) R.C.P.

We do not agree with this contention of the respondent. The above quoted language of Rule 81(a)(6) R.C.P. is clear and unmistakable. Code, 1931, Chapter 54, Article 2, Section 10, as amended, provides the manner in which a jury trial may be obtained in an eminent domain case. It provides for a jury of twelve freeholders that only those eligible to serve as condemnation commissioners may serve as jurors; and, among other things, that no person who served as a condemnation commissioner in the proceeding may be a witness in regard to just compensation. The provision that the 'cause shall be tried as other causes in such c...