State Road Commission v. Curry

• Decision Date: 28 March 1972
• Docket Number: No. 12970,12970
• Citation: 155 W.Va. 819,187 S.E.2d 632
• Court: West Virginia Supreme Court
• Parties: The STATE ROAD COMMISSION of West Virginia v. Devon D. CURRY and Alberta Curry.

Page 632

187 S.E.2d 632

155 W.Va. 819

The STATE ROAD COMMISSION of West Virginia v. Devon D. CURRY and Alberta Curry.

No. 12970.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 25, 1972.

Decided March 28, 1972.

Syllabus by the Court

1. The provision of Code, 1931, 58--5--6, which specifies that, when an appeal or writ of error to this Court is sought, the clerk of the circuit court from which the appeal or writ of error is sought shall transmit to this Court 'by United States registered mail or valued express' the pertinent records is merely directory in relation to the method of transmittal; and if a transmittal and delivery of such records in proper form from the office of the clerk of the circuit court to the office of the Clerk of this Court has been made personally by an attorney who represents the party seeking the appeal or writ of error, the manner and method of transmittal prescribed by the statute will be considered to have been complied with substantially and legally.

2. 'Where a statutory bond is given, the statute will be read into and made a part of it.' Point 3 Syllabus, Tug River Lumber Company v. Smithey, 107 W.Va. 482 (148 S.E. 850).

3. Under the provisions of R.C.P. 80(a), when proceedings had and testimony taken at a trial are stenographically reported by the official court reporter, a duly certified transcript thereof becomes a part of the record when it is filed with the trial court during the pendency of the civil action or at any time thereafter.

4. The provision of R.C.P. 80(c) which requires that, when a duly certified transcript of the proceedings had and testimony taken at a trial are properly filed with the trial court, the party causing it to be filed shall promptly give notice thereof to all other parties is substantially and legally complied with as to a party who is entitled to receive such a notice if his counsel has prompt and actual notice of the filing thereof.

5. In a trial of a proceeding in eminent domain, when land taken has been improved by previous construction of buildings thereon, the land and the buildings must be considered as a unit and it is improper in such circumstances to prove separately the value of the land taken and the buildings located thereon. The landowner in such a case is entitled to recover the market value of the land as enhanced or increased by the market value of the buildings located on the land taken.

6. In ascertaining just compensation due the landowners in a trial of a proceeding in eminent domain instituted by a proper state agency in order to acquire a certain portion of a tract of land for highway construction purposes from the landowners whose tract of land was improved by buildings constructed and located thereon, it was not reversible error for the trial court to permit the land and the buildings to be valued separately by qualified witnesses who, in their testimony, expressed their opinions of the amount by which the fair market value of the land had been enhanced by the existence of the buildings in a case which was unusual because only a small portion of the front of each of the buildings taken was located on the land taken, the major portions of the buildings having been located on the residue of the land which was not taken in the eminent domain proceedings; and the action of the trial court was not erroneous notwithstanding the fact that the buildings were completely dismantled and removed from the land by the condemner in connection with and as a consequence of the construction of the state public highway.

Robert W. Friend, Parkersburg, for plaintiff in error.

Wm. Bruce Hoff, Daniel A. Ruley, Jr., Parkersburg, for defendants in error.

CALHOUN, President:

This case involves a proceeding in eminent domain instituted in the Circuit Court of Wood County by The State Road Commission of West Virginia, (presently designated by statute as the West Virginia Department of Highways), as the petitioner, against Devon D. Curry and Alberta Curry, as the landowners, in order to acquire certain easements over real estate belonging to the landowners for the purpose of constructing a public highway.

The State Road Commission of West Virginia, which hereafter in this opinion may be referred to as the petitioner or as the condemner, was granted a writ of error and supersedeas by this Court from a final judgment rendered by the Circuit Court of Wood County on June 9, 1969, on a jury verdict in favor of the landowners in the sum of $42,200. In entering final judgment, the trial court deducted from the amount of the jury verdict the sum of $27,300 previously deposited by the condemner with the clerk of the trial court pursuant to the provisions of Code, 1931, 54--2--14a, as amended. The net amount of the judgment entered, therefore, was the sum of $14,900 with interest payable thereon from July 28, 1966, the date the condemner was permitted by an order of the trial court to enter upon and to take possession of the real estate pursuant to the provisions of Code, 1931, 54--2--14a, as amended.

The petition for a writ of error and supersedeas was filed in the office of the Clerk of this Court on February 9, 1970. The Court granted the writ of error and supersedeas on June 8, 1970. On August 29, 1970, counsel for the landowners filed a written motion to dismiss the writ of error and supersedeas as having been improvidently awarded by the Court. Notice was served by counsel for the movant upon the condemner that the motion would be brought on for hearing before the Court on Tuesday, September 22, 1970, at ten o'clock a.m. Upon the return day of the motion, the Court announced to counsel that decision of questions arising upon the motion to dismiss would be deferred until decision of the case on its merits.

One ground of the motion was that the clerk of the trial court did not transmit the petition for a writ of error and supersedeas and the trial court record to the Clerk of this Court 'by United States registered mail or valued express,' pursuant to the provisions of Code, 1931, 58--5--6, but that, on the contrary, the petition and the record were 'hand carried' to the office of the Clerk of this Court by Robert W. Friend, counsel for the condemner. We are of the opinion that the statutory language quoted above relating to the transmittal of the petition and record is merely directory.

The Court takes judicial notice of the fact that, over a long period of years, it has not been unusual for counsel for an appellant or for a plaintiff in error to deliver in person the petition and record by which an appeal or writ of error has been sought. It would be ridiculous, for instance, to assert that this Court would be unwarranted in granting an appeal or a writ of error to a final judgment of the Circuit Court of Kanawha County unless the petition, supporting memorandum and record were transmitted by the clerk of that trial court to the office of the Clerk of this Court by 'United States registered mail or valued express,' both courts being located in the same county. The important and determinative fact in this connection is that the records in the office of the Clerk of this Court disclose that the trial court record and the petition, accompanied by a written memorandum in support of the prayer of the petition, were duly filed in the Clerk's office on February 9, 1970, which was the last day within the appeal period of eight months prescribed by Code, 1931, 58--5--4, as amended.

A second ground of the motion to dismiss the writ of error and supersedeas is that the condemner did not execute a bond properly conforming to the language and requirements of Code, 1931, 58--5--6, which requires one seeking an appeal or writ of error to this Court to deposit with the clerk of the circuit court a 'sufficient sum of money to defray the expenses of the preparation and indexing of the record, fees for filing the petition and making and certifying necessary copies of orders, costs of transmission and return of the record, and the making of a transcript of the record, or file with the clerk a bond conditioned to pay the same, in a penalty and with sureties to be fixed and approved by such clerk, * * *.' The record in this case contains a bond executed by the State Road Commission of West Virginia in the penal amount of $500, with Western Surety Company as the corporate surety, approved by the clerk of the trial court, and bearing a stamp which discloses that the bond was duly filed in the office of the clerk of the trial court on February 9, 1970. Appended to the petition for a writ of error and supersedeas is a certificate of the clerk of the trial court which recites the execution and filing of a bond for $500 'to cover the costs of preparing record in case an appeal or supersedeas is granted.'

It is true that the portions of the bond relating to the conditions thereof are not precisely and exactly worded in the language of the statute, but the bond, when read and considered in its entirety, clearly discloses that it was executed in order to comply with the requirements of Code, 1931, 58--5--6.

It is a fundamental legal proposition that a bond executed pursuant to a statutory requirement must be construed and applied in conformity with the provisions of the pertinent statute and must be read and construed in conformity and in compliance with the statutory language which prescribes the terms and conditions of the bond so formulated and executed, whether the statutory language is or is not expressly and precisely stated in the bond. In other words, pertinent statutory language will be read into a bond executed pursuant to statutory requirements, whether the bond does or does not technically and precisely state and thus embody the language of the statute which prescribes the form or conditions of the bond. State ex rel. County Court of Pleasants County v. Anderson, 140 W.Va. 827, pt. 1 syl., 87 S.E.2d 249; Atlas Powder Co. v. Nelson...