Hardy v. Simpson

190 S.E. 680, 118 W. Va. 440, 1937 W. Va. LEXIS 36

• Court: West Virginia Supreme Court
• Decided: March 23, 1937
• Docket: 8576
• Status: Published

Opinions

Fox, Judge:

Bessie Hardy, the owner of real estate in the City of Bluefield and William F. Deitz, the owner of a mortgage or lien thereon, seek, by writ of mandamus, to compel the defendant, as State Road Commissioner, to institute' condemnation proceedings to ascertain the amount of damages to said property, occasioned by the construction, maintenance and use of a primary state highway on which the property of the said Hardy abuts. No part of the property involved is actually taken, but it is alleged that the same is damaged by reason of a change in the grade of the street, rendering access thereto difficult, if not impossible, and that the ordinary processes of law afford to the plaintiffs no relief from the situation thus created.

Section 9, Article 3 of the Constitution provides:

“Private property shall not be taken or damaged for public use, without just compensation; nor shall the same be taken by any company, incorporated for the purpose of internal improvement, until just compensation shall have been paid, or secured to be paid, to the owner; and when private property shall be taken, or damaged, for public use, or for the use of such corporations, the compensation to the owner shall be ascertained in such manner as may be prescribed by general law: Provided, That when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders.”

From this provision of the constitution, it is clear that private property cannot be taken or damaged for public use without just compensation; nor can it be taken for purposes of internal improvement without such compensation. There is, however, one distinction: as to property taken for public use, the compensation need not be paid before the taking. Keystone Bridge Company v. Summers, 13 W. Va. 476; while as to property taken for purposes of internal improvement the same cannot be taken “until just compensation shall have been paid or secured to be paid”. In either event, the compensation shall be ascertained in such manner as may be prescribed by general law, with the right of trial by a jury of freeholders guaranteed. The property, or rights, of the plaintiffs involved herein, will be devoted to a public use, and come under that provision of the constitution which permits their taking without compensation being paid in advance of such taking. Of course, the constitution guarantees ultimate compensation, but the legislature may make reasonable provisions for the ascertainment and payment thereof. As to property actually taken, the legislature has provided for such taking in advance of payment of compensation (Code 54-2-14), but this provision contemplates a proceeding to condemn, because it provides that such proceeding may not be dismissed without the consent of the landowner. A recent act of the legislature, Senate Bill 188, 1937 Session, and now effective, provides for the ascertainment of damages for property actually taken “after a reasonable time has elapsed for the completion of the work upon the particular property so entered upon and taken possession of.” This act is mentioned as showing the legislative policy.

Damage to property, where no actual taking occurs, can stand on no higher ground than where property is actually entered upon and appropriated to a public use. True, the law contemplates a condemnation proceeding prior to actual taking, but compensation may be thereafter determined; and it may be argued that the same course should be followed with respect to property damage; but there is the difference; the value of property actually taken, and damages to the residue above peculiar benefits, can reasonably be ascertained at the time of the taking; probably a more equitable ascertainment can be made after the completion of the project for which the property is taken, and the legislative policy seems to be to delay compensation until there is a final and complete picture of the damage done, both in the actual taking and otherwise; on the other hand, the damage done to property, where there is no actual taking, arises solely from the maintenance and use of the project, (in this case a highway) after its completion. If it be said that damages to property are such as to amount to the taking of the same, the measure and extent of that taking cannot be made clear until the construction work is completed, and it is definitely known what elements of damage arise from the new situation. This reasoning more strongly applies to any character of damage less than actual taking of property. In a case of damage only, there cannot be, in the very nature of things, a reasonable basis for the ascertainment thereof, until the completion of the work out of which the same arises. The constitutional guaranty of just compensation for private property taken or damaged for public use should be so interpreted and applied as to do justice both to the state and its citizens, and with the revenues of the state pledged to assure to the owner of private property com pensation for any property taken or damaged, he is not legally prejudiced by any interpretation of the constitution and statutes which does nothing more than provide for the ascertainment of such damages under conditions designed to bring about the most nearly correct finding of actual damages possible.

If, after the completion of the project described in the petition, the plaintiff, Hardy, is able to show damage to her property, her right to compensation is clear. Guinn v. Ohio River Rr. Co., 46 W. Va. 151, 33 S. E. 87, 76 Am. St. Rep. 806; Watson v. Fairmont & S. Railway Co., 49 W. Va. 528, 39 S. E. 193; Cline v. Norfolk & W. Rr. Co., 69 W. Va. 436, 71 S. E. 705; Jones v. Clarksburg, 84 W. Va. 257, 99 S. E. 484; Swift & Co. v. Newport News, 105 Va. 108, 52 S. E. 821, 3 L. R. A. (N. S.) 404; Tidewater Ry. Co. v. Shartzer, 107 Va. 562, 59 S. E. 407, 17 L. R. A. (N. S.) 1053. These cases, for the most part, cover allowances of damages against private corporations, but they illustrate the principle. But such compensation for damages to property less than the actual taking is not required to be paid in advance of the construction of the work out of which the right to compensation arises. Mason v. Harper’s Ferry Bridge Co., 17 W. Va. 396; Spencer v. Point Pleasant & O. Rr. Co., 23 W. Va. 406; Arbenz v. Wheeling & H. Rr. Co., 33 W. Va. 1, 10 S. E. 14, 5 L. R. A. 371; Watson v. Fairmont & S. Ry. Co., supra. In such cases, where there are peculiar benefits to the property, the same may be set off against damages. Jones v. Clarksburg, supra; Town of Galax v. Waugh, 143 Va. 213, 129 S. E. 504. Where work is being done under, and within, legal authority, the progress of the same cannot be enjoined because of consequential damages. Spencer v. Pt. Pleasant & O. Rr. Co., supra; Arbenz v. Wheeling & H. Rr. Co., supra; Watson v. Fairmont & S. Ry. Co., supra; Dick v. Hinton, 109 W. Va. 708, 156 S. E. 81. Under the constitution, and the decisions of this court, interpreting the same, a suit cannot be maintained against the state, or its instrumentalities, to recover damages growing out of such work. Constitution, Article VI, Section 35; Mahone v. State Road Commission, 99 W. Va. 397, 129 S. E. 320; Stewart v. State Road Commission, 117 W. Va. 352, 185 S. E. 567.

This leads us to a consideration of the rights of the landowner in a case such as is presented here. That she has rights, and that some way should be found to enforce them is clear; the plain provision of the constitution, with respect thereto, cannot be ignored. If the landowner cannot sue the road commission to recover damages; if she cannot resort to the remedy of injunction to protect such rights; and if she has no other remedy; the plain provisions of the constitution are nullified. This cannot be. Courts are always jealous of the rights of private citizens when such rights clash with the power of the state. While our statutes, covering the taking of private property under the powers of eminent domain, only apply, in direct terms, to the actual taking of property, these provisions must be held, in order to give effect to the constitution, to cover cases where there is damage to property, as distinguished from the actual taking thereof. Therefore, a duty rests on the state to take necessary steps under our condemnation statutes to ascertain damages to the owners of private property, whether the same is actually taken, or damaged only.

There is authority for the proposition that the Road Commissioner, in person, may, by mandamus, be required to institute condemnation proceedings. Stewart v. State Road Commission, supra; Haycock v. Jannarone, 99 N. J. L. 183, 122 A. 805; Goodavage v. State Highway Commission, 96 N. J. Eq. 424, 125 A. 919; Thomson v. State Highway Commission, 10 N. J. Misc. 877, 161 A. 192; McDowell v. Ashville, 112 N. C. 747, 17 S. E. 537; Gibson v. Greenville, 64 S. C. 455, 42 S. E. 206; Worley v. Road Commissioner, 172 N. C. 815, 90 S. E. 1003; Ex Parte Jennings, 6 Cow. (N. Y.) 518, 16 Am. Dec. 447. We have found no authority fixing the time when such proceeding shall be instituted.

In view of these authorities, and what seems to us the imperative duty to give full effect to the constitutional provision involved herein, we conclude that the Road Commissioner may be required to institute such pro ceeding as may be necessary to ascertain and pay proper damages to property owners where their property is either taken or damaged; but the commissioner has a reasonable discretion as to the time when such proceeding shall be instituted, in cases of property damage only; and where, as in this case, the work is being pushed to completion, and there is no evidence of undue delay, the postponement of such proceeding until after the completion of the work, when the ascertainment of damages, if any, can be made under circumstances calculated to protect the interests of all concerned, cannot be held to be an abuse of such discretion. Upon completion of the work, the Road Commissioner should, within a reasonable time thereafter, take the necessary steps to ascertain of the damages, if any, to which petitioners may be entitled; and should he fail to do so, such failure will be considered such an abuse of discretion, and neglect of duty as to warrant the use of the writ of mandamus to compel, such action.

The peremptory writ is refused.

Writ refused.