West Virginia Dept. of Highways v. Roda

• Decision Date: 19 December 1986
• Docket Number: No. 16772,16772
• Citation: 352 S.E.2d 134,177 W.Va. 383
• Court: West Virginia Supreme Court
• Parties: WEST VIRGINIA DEPARTMENT OF HIGHWAYS, a Corporation, and William S. Ritchie, Jr., Commissioner v. Louis RODA and Mary Roda.

Page 134

352 S.E.2d 134

177 W.Va. 383

WEST VIRGINIA DEPARTMENT OF HIGHWAYS, a Corporation, and William S. Ritchie, Jr., Commissioner v. Louis RODA and Mary Roda.

No. 16772.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1986.

Syllabus by the Court

1. In eminent domain proceedings, the date of take for the purpose of determining the fair market value of property for the fixing of compensation to be made to the condemnee is the date on which the property is lawfully taken by the commencement of appropriate legal proceedings pursuant to W.Va.Code, 54-2-14a, as amended.

2. When the contractor for the Department of Highways took the landowners' property prior to the institution of lawful condemnation proceedings, the trial judge did not err in refusing to allow the introduction of evidence as to the value of such property on a date prior to the institution of such proceedings.

3. When a condemnor had prior knowledge that its contractor was selling a condemnee's coal which had been severed from the land before the institution of lawful condemnation proceedings, the fair market value of the condemnee's coal, removed before the lawful date of take, is the price for which the coal could be sold, ready for loading, by a person desirous of selling to a person wishing to buy, both freely exercising prudence and intelligent judgment as to its value, without consideration of the mining, production, excavation and marketing costs.

4. "In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved." Syl. pt. 5, Orr v. Crowder, --- W.Va. ---, 315 S.E.2d 593 (1983).

Paul E. Parker, Jr., Fairmont, for appellants.

David J. Romano, Clarksburg, for appellees.

McHUGH, Justice:

This case is before this Court upon appeal from the final order of the Circuit Court of Harrison County which denied a motion to set aside the verdict and to grant a new trial made by the West Virginia Department of Highways at the close of eminent domain proceedings below. The jury returned a verdict finding the landowners entitled to the sum of $890,136.00 as just compensation for coal taken by the Department of Highways for public road purposes. This Court has before it the petition for appeal, all matters of record and briefs of counsel.

Appellants are the West Virginia Department of Highways and its Commissioner, William S. Ritchie, Jr.

Appellees are Louis Roda and his wife, Mary Roda, owners' of the coal which the Department of Highways has condemned.

I

The facts giving rise to this dispute are essentially uncontroverted.

The acquisition of the property was essential to the construction of Interstate 79 and the relocation of U.S. Route 50. ¹ Although the West Virginia Department of Highways had examined title to the property, appraised the landowners interest and communicated its intention to acquire those interests, excavation of certain coal belonging to the Rodas began before the requisite interests had been obtained by the Department of Highways. The eminent domain proceedings, pursuant to W.Va.Code, 54-2-14a [1963], were instituted on August 1, 1974. One day earlier, the Rodas had sought an injunction to halt the removal and sale of their coal by the contractor which was constructing the project for the Department of Highways. Subsequent to the institution of lawful condemnation proceedings, however, the excavation continued, and the highway construction was completed. Because the Department of Highways estimated that the coal had no value, no sum was paid into court prior to taking possession of the coal.

The dispute between the parties relates to the value of the coal condemned by the Department of Highways. Prior to trial, the court granted the landowners' motion in limine which, in effect, prevented the Department of Highways from eliciting testimony or mentioning in arguments the value of the coal in its condition prior to August 1, 1974, the date of condemnation. The court ruled that just compensation was the fair market value of all coal, whether removed before August 1, 1974, or thereafter, considered to be uncovered, "in the pit," ready for loading, with no consideration of the production, mining or excavation costs.

On July 16, 1984, nearly ten years after lawful condemnation proceedings were instituted, the case proceeded to trial. The evidence adduced at trial established that the coal which was the subject of the eminent domain proceedings below consisted of 9.8 acres of Pittsburgh coal and 6.4 acres of Redstone coal, for a total take of 16.2 acres. Of the Rodas' coal property condemned in this proceeding, 4.8 acres of the Redstone coal was actually removed and sold by the contractor prior to the initiation of condemnation proceedings. The contractor had completely excavated or removed and sold 2.9 acres of Pittsburgh coal at the time condemnation proceedings had been instituted. It was established that the market conditions for both the Pittsburgh and Redstone seams were excellent on August 1, 1974.

The landowners introduced the testimony of their surveyor, Raymond Stiles, to establish the acreages of Pittsburgh and Redstone coal seams which the Department of Highways had appropriated, as well as the acreages of the coal removed by the contractor during the excavation. Mr. Roda himself testified that the fair market value of the unearthed coal, in its condition on August 1, 1974, was $1,430,000. Testimony from several witnesses knowledgeable in the area of coal valuation demonstrated that the fair market value of one ton of coal in its condition on August 1, 1974, ranged from $24.00 to $33.25. The landowners' witness, Donald Sult, determined the quantity of coal actually removed from the take area. Based upon Mr. Sult's engineering estimates, the landowners' final witness, Nicholas Stevens, opined that the fair market value of the excavated coal in the road cut area was $1,839,789.

The Department's first witness, Harry Looker, a project engineer for the Department, described his observations of the coal during the excavation process including mine voids, mine rails and timbers. He also acknowledged that the Department of Highways' contractor removed and sold the Pittsburgh coal and also sold the Redstone coal. The Department of Highways' second witness, Paul Horner, a mining engineer who had originally appraised the fair market value of the condemned coal, testified that he "did not find any value to either one of the veins of coal." This offer of opinion was rejected by the court based on its earlier ruling that testimony regarding the value of the coal prior to August 1, 1974, would not be admissible. Another witness, Donald Bondurant, a mining engineer, concluded that 7946 tons of Pittsburgh coal were recoverable by surface mining, while the Redstone coal was not recoverable at all. He testified that in his opinion the coal was worth $.96 a ton in its condition on August 1, 1974. Consistent with the opinion of Paul Horner, the witness indicated the possibility that the coal was worthless.

At the conclusion of these proceedings, the jury returned a verdict for the landowners finding just compensation for the coal taken by the Department of Highways to be $890,136.00.

II

The initial issue for this Court to resolve is the appropriate date upon which the landowners' property should be valued for purposes of ascertaining just compensation to the landowners for the coal taken.

Provisions of our federal and state constitutions ensure that private property shall not be taken for public use without just compensation. U.S. Const. amend. V; W.Va. Const. article III, § 9.

The Department of Highways proceeded under W.Va.Code, 54-2-14a [1963], which allows the State to acquire "title to, and enter upon, take possession of, appropriate and use the property, or interest or right therein, sought to be condemned" upon the filing of a petition and payment into court of "such sum as it [condemnor] shall estimate to be the fair value of the property, or estate, right, or interest therein, sought to be condemned, including, where applicable, the damages, if any to the residue...." No funds were deposited because the Department of Highways estimated that the coal had no value.

Generally, the measure of compensation to be awarded one whose property is taken for a public use in a condemnation proceeding is the market value of the property at the time of the taking. Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236, 1244 (1934); West Virginia Department of Highways v. Berwind Land Co., --- W.Va. ----, ----, 280 S.E.2d 609, 613 (1981); Strouds Creek & M.R.R. v. Herold, 131 W.Va. 45, 53, 45 S.E.2d 513, 519 (1947); Guyandot Valley Ry. v. Buskirk, 57 W.Va. 417, 424, 50 S.E. 521, 523 (1905).

No cases in West Virginia regarding value have been brought to our attention where the condemnor entered upon and appropriated the condemnee's property without legal authority initially and at a later date instituted lawful condemnation proceedings. In any event, the parties do not dispute that August 1, 1974 is the lawful date of take.

The Supreme Court of Virginia has held that the date of take, which determines the date upon which condemned property is to be valued, is the date when the property is lawfully condemned and not the date when the State may have wrongfully acquired possession of the condemnee's property. White v. State Highway Commissioner, 201 Va. 885, 114 S.E.2d 614 (1960). The White case involved the construction of a highway across the plaintiff's lots. Acting under a mistake of...