United States v. Alderson, 194.

• Decision Date: 14 January 1944
• Docket Number: No. 194.,194.
• Citation: 53 F. Supp. 528
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES v. ALDERSON et al.

53 F. Supp. 528

UNITED STATES v. ALDERSON et al.

No. 194.

District Court, S. D. West Virginia.

January 14, 1944.

Leslie E. Given, U. S. Atty., and John R. Dyer, Sp. Atty., Department of Justice, both of Charleston, W. Va., and Leland L. Yost, Atty., Department of Justice, of Washington, D. C., for the United States, petitioner.

Arden Trickett, of Charleston, W. Va., Hiram G. Williamson, of Williamson, W. Va., and Harry R. Taylor, of Keyser, W. Va., for State Road Commission of West Virginia.

HARRY E. WATKINS, District Judge.

This is a condemnation proceeding brought by the United States as petitioner to condemn 8,000 acres of land along the Ohio River, near Point Pleasant, in Mason County, West Virginia, for the construction of a T. N. T. plant. Just compensation has been agreed upon, or adjudicated, as to all property owners, except the State of West Virginia, which claims damages of approximately $100,000 for the taking of 20 miles of secondary state roads within the area. Petitioner claims that since the property owners outside the area still have reasonable access to their property, there is no legal liability on the State of West Virginia or the State Road Commission, to reconstruct or improve roads to take the place of those abandoned within the area, and therefore the state is entitled only to nominal damages for the road easements being acquired.

A commission of five persons, appointed by the court, viewed the property, heard the evidence, and awarded damages of $35,000. To this award both parties filed exceptions, and the case is now being tried de novo before a jury in this court. Both parties have filed briefs setting forth their respective contentions.

At the close of the evidence and prior to the arguments to the jury, I informed counsel of my ruling on all matters of law in controversy, and the nature of my charge to the jury. There are few reported decisions upon the measure of damages for the taking of public highways. There are now pending throughout the United States a large number of proceedings to condemn highways traversing lands acquired by the Federal Government for military purposes, making the subject one of increasing public interest. For these reasons, I am filing this opinion, setting forth my decision and my views on this subject.

Included in the 20 miles of roads taken were many roads which began and terminated within the area. As to them the State makes no claim for compensation.

Certain other roads closed (11, 12, 13 and 14) were through-traffic arteries. They were gravel roads and intersected the main north-south state highway (62) at points within the area. Before the taking of the roads in question, people living outside the area desiring to travel north or south would customarily travel over gravel roads 11, 12, 13 and 14, through the area to state road 62, which ran north and south along the Ohio River. The closing of that portion of roads 11, 12, 13 and 14 within the area now makes it necessary for these people to use other dirt and gravel roads (7, 11, 12/7, 14/1 and 15) outside the area in going to and from their homes.

The State of West Virginia only had an easement or right of way in the roads now closed. It did not own the roadbed. The roadbed is owned by the abutting property owners and they have been paid.

The first question for the jury in this case is whether roads 7, 11, 12/7, 14/1 and 15, which the State asks to be improved, are or are not reasonable, practical county roads. Are they reasonable, considering the amount of travel over them? If they were reasonable roads under all circumstances existing on February 18, 1942, the date of taking, then the State would not be entitled to any damages in this case except nominal damages.

The United States contends that on the date these roads were taken, the people living in that neighborhood had left to them other dirt and gravel roads, which, without improvements, constitute a reasonable outlet for them. The State says that those roads left to the property owners were not reasonable under the circumstances. If the remaining roads were reasonable, the property owners cannot complain, even though the present outlet is the longer way out. It is the settled law that a property owner is not entitled to more than one outlet to his property and cannot complain if he is not given the shortest way out. Sometimes the public interest requires the closing of roads which makes it necessary for a person, instead of going over a good, hard surfaced road, to go over dirt roads. If such a person had a way over dirt roads which were reasonable roads under all the existing conditions, then he could not complain that the hard surfaced road was taken away from him, because he is entitled to one way out—a reasonable way, and no more. Heavener v. State Road Commission, 118 W.Va. 630, 191 S.E. 574.

If the people in that vicinity have another reasonable outlet, even though it is not the shortest or the most convenient outlet, they cannot compel the State of West Virginia to furnish them a better road, and if the people cannot compel the State of West Virginia to furnish a better road, then the State of West Virginia could not compel the United States Government to pay for such improvements. United States v. Wheeler Tp., 8 Cir., 66 F.2d 977; United States v. Prince William County, D.C.E.D.Va., 9 F.Supp. 219, affirmed, Prince William County v. United States, 4 Cir., 79 F.2d 1007; Richwood v. City of Hinton et al., 117 W.Va. 223, 185 S.E. 411; Wayne County v. United States, 53 Ct.Cl. 417, affirmed per curiam 252 U.S. 574, 40 S.Ct. 394, 64 L.Ed. 723.

The State is only entitled to be made whole. It is not entitled to profit or to benefit because of the war and the construction of this war plant. The State's damages, if any, are what it will be legally compelled to do for the property owners. If the property...