State Road Commission v. Penndel Co., 1-3

• Citation: 147 W.Va. 505,129 S.E.2d 133
• Decision Date: 15 January 1963
• Docket Number: No. 12164,No. 1-3,1-3,12164
• Court: Supreme Court of West Virginia
• Parties: The STATE ROAD COMMISSION of West Virginia, a Corporation, et al. v. PENNDEL COMPANY, Delaware Corporation, et al. (three cases). (Parcels).

Page 133

129 S.E.2d 133

147 W.Va. 505

The STATE ROAD COMMISSION of West Virginia, a Corporation, et al. v. PENNDEL COMPANY, Delaware Corporation, et al. (three cases) (Parcels No. 1-3).

No. 12164.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 18, 1962.

Decided Jan. 15, 1963.

Syllabus by the Court

1. In a condemnation proceeding the cost to construct a substitute road or other facility is a proper measure of damages only if the entity, the property of which was taken, is required to construct such substitute facility.

2. In proving the value of land in a condemnation proceeding, the owner is not limited to the use then being made of the land taken but is entitled to a consideration of its value for any purpose for which it is reasonably available in the immediate future.

3. Values based on future or prospective uses to which the land may be applied, which are predicated on speculation or conjecture, are not to be considered.

4. Where a corporation, having been granted a charter for the purpose of constructing and operating a railroad, does nothing in furtherance of that purpose over a period of many years, and the likelihood of effecting that purpose in the foreseeable future is shown to be highly speculative, such corporation will be deemed to have abandoned its expressed purpose and is not a railroad.

5. The equity proceeding provided for in Code, 54-1-9, applies only to an operating railroad or other entity in actual operation.

Goodwin, Mead & Goodwin, Wheeling, for plaintiff in error.

Anthony G. Halkias, Philip J. Sheets, Charleston, for defendants in error.

CAPLAN, Judge.

This is a proceeding in eminent domain instituted in behalf of the State of West Virginia by the state road commission (herein referred to as commission), against Penndel Company, a Delaware corporation (herein referred to as Penndel). The purpose of the proceeding is to acquire certain parcels of land as a right of way for the construction of Interstate No. 70, a public road. Penndel owns all of the land involved. Dwelling houses had been erected, however, on two of the parcels under separate lease agreements with Penndel. These houses were owned outright by the tenants Thomas J. Triece and Paul M. Singer.

Because of the three parcels of land and the special interests of Triece and Singer, three separate condemnation proceedings were instituted by the commission. Subsequently, awards were made to Triece and Singer for the value of their respective houses, and the cases were consolidated for trial with Penndel as the remaining defendant.

The Wheeling Coal Railroad Company was incorporated in this State in 1916. The charter issued by the Secretary of State provided that the corporation proposed to build a railroad which would commence near the city of Wheeling, in Ohio County proceed along or near Wheeling Creek, through the counties of Ohio and Marshall to the Pennsylvania state line, at a point near the town of Majorsville. Pursuant to its expressed purpose the railroad company purchased several parcels of land in Ohio and Marshall counties. According to the evidence contained in the record of this case, all of the property involved in this proceeding was acquired by Wheeling Coal Railroad Company in 1916 and 1917. In their respective briefs the parties hereto appear to agree that some property was purchased in 1933, although it is apparent, from the testimony of one of the witnesses for Penndel, that such later purchased property is not involved directly in this condemnation proceeding. From 1933 until the present time it is undisputed that no further properties were acquired by Wheeling Railroad nor by Penndel. While most of the alleged right of way in Marshall County has been acquired, such is not the case in Ohio County. It is clear, in the record, that in Ohio County several large gaps exist in Penndel's claimed right of way. Furthermore, the areas within the gaps consist of residential, commercial and industrial properties, the acquiring of which would be most costly.

In 1954 Penndel Company, a wholly owned subsidiary of the Pennsylvania Railroad Company, merged with the Wheeling Coal Railroad Company and succeeded Wheeling Railroad as the owner of all of the properties it had acquired.

This controversy had its beginning in 1958, when the state road commission filed its petition to condemn, for right of way purposes, certain parcels of land then owned by Penndel. In its answer Penndel contended that such a taking constituted a severance of its railroad right of way. After the claims of Triece and Singer had been disposed of several pretrial conferences were held, with the commission and Penndel as the remaining parties. It is the position of Penndel that its alleged right of way, extending from the Ohio River at Wheeling across the northern panhandle of West Virginia into Pennsylvania, was rendered useless by its severance by Interstate No. 70, and that it is entitled to damages for such severance. Many exhibits were offered by Penndel which were designed to show that it had acquired virtually all of the proposed right of way in Ohio and Marshall counties, and that the property actually constituted a railroad right of way.

At the pre-trial conference the court considered the matter of residual damages and concluded that Penndel had no railroad right of way in fact, and therefore was not entitled to present evidence to establish residual damages. Upon the motion of counsel for Penndel, concurred in by counsel for the commission, a trial by jury was waived and the case was heard by the court in lieu of a jury. In the judgment order entered on July 1, 1961, the trial court awarded Penndel $49,631.00, as just compensation for the land taken by the State. The effect of that order, together with the pretrial conference order, is that Penndel is not a railroad, has no right of way for railroad purposes, and that it is not entitled to residual damages. Defendant's motion for a rehearing was denied and Penndel sought this writ of error.

In its petition for a writ of error Penndel relies upon seven separate assignments of error to the judgment of the trial court. A thorough consideration of such assignments presents the following questions: (1) Did the trial court err in its refusal to require the commission to resort to an equity suit to fix the location and manner of crossing Penndel's claimed right of way before it instituted this proceeding in eminent domain? (2) Was it error to hold that Penndel Company was not and is not a railroad? (3) Did the refusal by the trial court to allow damages to Penndel for alleged damage to its residuary property constitute error?

The principal and controlling issue in this case is embodied in question number two above. Basically, is Penndel a railroad? If this question is answered in the affirmative, then clearly Penndel is entitled to residual damages by reason of the severance of its right of way. A negative answer thereto, however, compels the conclusion that there was no right of way, thus no severance and no damage to the remaining property of Penndel. Contrary to the position of Penndel, the commission contends that the defendant is not a railroad and that compensation for the property taken for public use should be determined solely on the basis of the fair market...