Shelton v. State Road Commission

West Virginia Supreme Court

Shelton v. State Road Commission

167 S.E. 444, 113 W. Va. 191, 1932 W. Va. LEXIS 294

CourtWest Virginia Supreme Court

DecidedDecember 12, 1932

Docket7366

StatusPublished

Cited by10 cases

This text of 167 S.E. 444 (Shelton v. State Road Commission) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shelton v. State Road Commission, 167 S.E. 444, 113 W. Va. 191, 1932 W. Va. LEXIS 294 (W. Va. 1932).

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Opinion

Litz, Judge.-

This is a suit by a landowner to enjoin the state road commission from condemning a triangular paree] of land, defined by the intersection of three state roads in Clay county. Prom a decree granting plaintiff relief, defendant has appealed.

The land is sought to be condemned not for present use, but for the alleged purpose of using a portion thereof as right of *192 way in event of the roads being widened at the intersection. As the widening of the roads at that point (according to the evidence) must be effected by extending the outer boundaries thereof, in order to relieve the curvature at the inner sides, it would appear that such proposed public use is merely color-able. It is also claimed that the land should be condemned as a traffic safety measure to prevent its use for an automobile service station. A number of witnesses for plaintiff, including a prominent and skilled engineer, opposing the opinion of a witness for defendant, stated, in substance, that the maintenance of a filling station on the property will not, in their judgment, appreciably endanger traffic. Plaintiff has maintained and operated thereon for two years two gasoline pumps with incidental equipment for the sale of gasoline, apparently without interference with traffic.

Section 4, article 4, chapter 17, Code 1931, authorizes the road commission to condemn the right of way necessary to widen, straighten, grade or alter any state road. "While it is ordinarily within the discretion of the agency exercising the power of eminent domain to determine the quantity of land necessary for a public use (City of Huntington v. The Frederick Holding Co., 85 W. Va. 241, 101 S. E. 461), what is such public use as will justify the exercise of the power in the particular case is usually a judicial question depending upon the facts. Baltimore & Ohio Railroad Co. v. Pittsburgh. Wheeling and Kentucky Ry. Co., 17 W. Va. 812, 842.

We are of opinion to affirm the ruling of the circuit court. Our decision, however, will not preclude the state in a future proceeding, under materially changed circumstances.

Affirmed.

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Litz, Judge.-

This is a suit by a landowner to enjoin the state road commission from condemning a triangular paree] of land, defined by the intersection of three state roads in Clay county. Prom a decree granting plaintiff relief, defendant has appealed.

The land is sought to be condemned not for present use, but for the alleged purpose of using a portion thereof as right of *192 way in event of the roads being widened at the intersection. As the widening of the roads at that point (according to the evidence) must be effected by extending the outer boundaries thereof, in order to relieve the curvature at the inner sides, it would appear that such proposed public use is merely color-able. It is also claimed that the land should be condemned as a traffic safety measure to prevent its use for an automobile service station. A number of witnesses for plaintiff, including a prominent and skilled engineer, opposing the opinion of a witness for defendant, stated, in substance, that the maintenance of a filling station on the property will not, in their judgment, appreciably endanger traffic. Plaintiff has maintained and operated thereon for two years two gasoline pumps with incidental equipment for the sale of gasoline, apparently without interference with traffic.

Section 4, article 4, chapter 17, Code 1931, authorizes the road commission to condemn the right of way necessary to widen, straighten, grade or alter any state road. "While it is ordinarily within the discretion of the agency exercising the power of eminent domain to determine the quantity of land necessary for a public use (City of Huntington v. The Frederick Holding Co., 85 W. Va. 241, 101 S. E. 461), what is such public use as will justify the exercise of the power in the particular case is usually a judicial question depending upon the facts. Baltimore & Ohio Railroad Co. v. Pittsburgh. Wheeling and Kentucky Ry. Co., 17 W. Va. 812, 842.

We are of opinion to affirm the ruling of the circuit court. Our decision, however, will not preclude the state in a future proceeding, under materially changed circumstances.

Affirmed.

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Bluebook (online)

167 S.E. 444, 113 W. Va. 191, 1932 W. Va. LEXIS 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelton-v-state-road-commission-wva-1932.

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