Wood v. County Court Op Wyo. County

• Decision Date: 06 October 1925
• Docket Number: (No. 5361)
• Citation: 100 W.Va. 29
• Parties: Fred G. Wood v. County Court op Wyoming County
• Court: West Virginia Supreme Court

100 W.Va. 29

Fred G. Wood

v.County Court op Wyoming County

(No. 5361)

Supreme Court of Appeals of West Virginia.

Submitted September 29, 1925.

Decided October 6, 1925.

1. Eminent Domain If Part of Tract is Taken, it is Proper for Jury to Include in Award, Expense, if any, for Improvement to Fit Residue of Tract for Use and Enjoyment.

When a part of a tract of land is taken for public use, it is proper for the jury to include in the award to the land owner the expense, if any, necessary to be incurred by reason of the improvement, in order to fit the residue of the tract for use and enjoyment, (p. 31.) (Eminent Domain, 20 C. J. § 236).

2. Appeal and Error Eminent Domain Proper Criterion as to Value of Land Taken is its Value for Most Advantag-

eous Use to Which Applicable; Where Evidence Clearly Preponderates Against Verdict, it Will be Set Aside.

Point 3 in the syllabus of Davidson v. Ry. Co. 41 W. Va. 407, and point 3 in the syllabus of Railway Co. v Davis, 58 W. Va. 620, applied, (p. 31.)

(Appeal and Error, 4 C. j. § 2838; Eminent Domain, 20 C. j. § 228).

(Note: Parenthetical references by Editors, C. j. Cyc. Not part of syllabi.)

Error to Circuit Court, Wyoming County.

Action by Fred G. Wood against the County Court of Wyoming County, to recover damages for taking land by eminent domain. Judgment for plaintiff for less than he asked, and plaintiff brings error.

Judgment reversed; verdict set aside; new trial awarded. J. Albert Toler, for plaintiff in error.

Hatcher, Judge:

The plaintiff owned a tract of 22.68 acres of comparatively level land in Wyoming County, situate near a mining town. The State Road Commission took 2.01 acres through this tract as a, public right of way. The road was built on a fill. In order to procure proper drainage of water which collected on the upper side of the road, the Commission placed 18 inch pipes under the road and dug several ditches from these pipes across the residue of the tract, These ditches averaged a few feet in depth and aggregated 1075 feet in length.

This is an action in assumpsit brought in the circuit court of said county to recover the value of the land taken and the damages to the residue of the tract.

The plaintiff testified that he was familiar with the value of lands in his neighborhood and that the value of the land taken was $1,000.00 per acre. O. L. Collier, a mining engineer of twenty-two years experience, testifying for plaintiff, estimated that the cost and expense of tiling and refilling the ditches on the plaintiff's land would be $2,083.45.

E. W. Worrel, a member of the county court, testified for defendant that be was familiar with the market value of lands in the neighborhood of plaintiff's tract and that for farm purposes the land in controversy was worth $150.00 to $250.00 per acre and that for building purposes it was. worth from $500.00 to $700.00 per acre.

The above witnesses were the only witnesses in the case.

The jury returned a verdict of $1,375.00 for plaintiff, apportioned as follows: $500.00 for land actually taken and $875.00 for damages to the residue of the tract, The court overruled a motion of plaintiff to set aside the verdict so far as it found the sum of $875.00 as damages to the residue of the property. The court then entered a judgment for plaintiff for $500.00 and the plaintiff now proseeutes error here.

The land owner in this case is entitled to compensation for the land taken based, on the most valuable use to...