Erowning, President:
These eight cases are original proceedings in mandamus, and there are common questions of fact as to each and common questions of law as to the first seven but not as to the eighth, Phoenix Insurance Company v. The State Road Commissioner. The petitions allege that on October 11, 1967, the Mountain State Construction Company, working pursuant to a contract with the State Road Commission and doing certain excavation and construction work with respect to the rebuilding [309]*309of West Virginia Route 61, caused large volumes of water to flood many portions of the City of Montgomery, damaging the real property of all of the petitioners herein. This flood was allegedly caused by the construction company’s excavation of an abandoned mine on a hillside overlooking Montgomery, the property belonging to one Woodrow Wilson Jacobs. The respondent had acquired a right-of-way over Jacobs’ property to do the work in question. Each petition alleges the damage done to the property by virtue of the enormous amount of water which was released upon a portion of the town.
All parties to these controversies have stipulated that the evidence, exhibits, etc., considered by this Court in State ex rel. Firestone Tire & Rubber Co. v. Ritchie, 153 W.Va. 132, 168 S.E.2d 287, are applicable to these cases, and their motions that the depositions taken in that case be incorporated in these cases have been granted.
In the Phoenix case, that being heretofore referred to as the eighth case, the petition alleges the destruction of a certain two-story brick business building in Montgomery, owned by Anna Ricardi, a widow, and J. W. Ricardi and Yolanda Fudge, the children of the deceased husband. The destruction of the building resulted from “a devastating fire,” allegedly as a direct result of the flood, which caused damages in the amount of $37,536.47. Phoenix carried the fire and casualty insurance on the building and, pursuant to the policy, paid the aforementioned amount to Anna and J. W. Ricardi. All of the petitioners, including Phoenix, have demanded compensation from the respondent or, in the alternative, that he institute eminent domain proceedings, all of which he has refused.
The petitioners allege that they have established a clear legal right to writs of mandamus against the respondent to compel him to institute condemnation proceedings for the purpose of ascertaining the value of the property damaged or destroyed and that a jury of freeholders determine the value thereof.
[310]*310In all cases respondent answers by saying that on December 28, 1966, the State Road Commission entered into a contract with Mountain State Construction Company to do certain highway construction work on a portion of West Virginia Route 61 in Montgomery, including a ramp extending from the relocated route to a new bridge spanning the C. & O. Railroad. The ramp construction involved some excavation of the foot of a hillside on the Jacobs’ property and “some sloping and benching of the hillside.” During construction some additional excavation became necessary during which old mine timbers and eventually the mine entry itself were encountered. The entry was followed toward the hillside about thirty-five feet before the contractor ended the day’s work on October 11, 1967. About two and one-half hours later “large volumes of waters broke loose at some point inside said hillside, came out through said excavation, and overflowed certain areas of the City of Montgomery.” Respondent admits that compensation for the resulting damage was demanded by the petitioners, but denies that they were entitled to that compensation. Respondent further alleges that neither he nor his predecessor in office had any knowledge of the existence of the water in the mine since core drillings made into the hillside indicated “no flowing water or consistent water elevation.”
It is respondent’s contention that if anyone is liable for these damages, it is the contractor, since its contract incorporated the “Commissions Standard Specifications, Roads and Bridges, 1960, Sections 1.7.6 and 1.7.10,” which, according to the respondent, “require the construction contractor to conduct the work in such a manner as to provide and insure the safety and convenience of the public and private property along and adjacent to the highway under construction, and to indemnify and save harmless the State Road Commission of West Virginia from any and all actions or claims brought for any damages to any person or property by reason of the contractor’s acts or failure to take suitable precautions to prevent damages . . ..” In the alternative, respondent suggests that the responsibility is that of the mine owner, Jacobs.
[311]*311In a supplemental answer, respondent notes also that since the filing of the petitions in these cases, the petitioners have instituted civil actions in the Fayette County Circuit Court against the contractor, and filed claims in the State Court of Claims against the State Road Commissioner.
These cases were submitted for decision upon oral argument and briefs on May 5, 1970. It is the view of this Court, for reasons to be hereinafter stated, to grant writs of mandamus as prayed for in seven of the above-styled cases and to deny the writ of mandamus in case No. 12864, the Phoenix case.
It is alleged and not denied in these proceedings that the owners of the damaged or destroyed real property were without fault of any kind and contributed in no way to the flooding of the city or to their losses. It is also alleged and not denied that these petitioners are seeking compensation for their damages in civil actions in the Fayette County Circuit Court alleging negligence on the part of the contractor and that they have filed claims with the State Court of Claims against the State Road Commissioner. We are, of course, not called upon to determine whether they can prevail in any of the above-mentioned actions or proceedings, and, of course, they can be compensated only once for their losses if they can prevail. It might well be that one or more of these cases will come back to this Court for final adjudication regardless of what results either in the Circuit Court of Fayette County, the Court of Claims, or pursuant to its recommendation, the action of the legislature with regard to what has come to be called a “moral obligation.” We have before us only the question of whether a proper showing has been made for requiring the respondent to institute eminent domain proceedings against the petitioners in the Circuit Court of Fayette County.
Article III, Section 9, of the Constitution of this State provides that “[p]rivate property shall not be taken or damaged for public use, without just compensation . . ..” However, Article VI, Section 35, of the Constitution provides that “[t]he State of West Virginia shall never be made defendant in any court of law or equity . . ..” These constitutional [312]*312provisions appear to be irreconcilable, but this Court has held that if the State Road Commissioner abuses his discretion in failing to institute an action of eminent domain against a property owner who alleges that his property has been taken or damaged as a result of the construction of a public highway, such commissioner will by this Court be directed in a mandamus proceeding to institute such action to determine whether property has been taken or damaged and, if so, the amount of damage the property owner has suffered.
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Erowning, President:
These eight cases are original proceedings in mandamus, and there are common questions of fact as to each and common questions of law as to the first seven but not as to the eighth, Phoenix Insurance Company v. The State Road Commissioner. The petitions allege that on October 11, 1967, the Mountain State Construction Company, working pursuant to a contract with the State Road Commission and doing certain excavation and construction work with respect to the rebuilding [309]*309of West Virginia Route 61, caused large volumes of water to flood many portions of the City of Montgomery, damaging the real property of all of the petitioners herein. This flood was allegedly caused by the construction company’s excavation of an abandoned mine on a hillside overlooking Montgomery, the property belonging to one Woodrow Wilson Jacobs. The respondent had acquired a right-of-way over Jacobs’ property to do the work in question. Each petition alleges the damage done to the property by virtue of the enormous amount of water which was released upon a portion of the town.
All parties to these controversies have stipulated that the evidence, exhibits, etc., considered by this Court in State ex rel. Firestone Tire & Rubber Co. v. Ritchie, 153 W.Va. 132, 168 S.E.2d 287, are applicable to these cases, and their motions that the depositions taken in that case be incorporated in these cases have been granted.
In the Phoenix case, that being heretofore referred to as the eighth case, the petition alleges the destruction of a certain two-story brick business building in Montgomery, owned by Anna Ricardi, a widow, and J. W. Ricardi and Yolanda Fudge, the children of the deceased husband. The destruction of the building resulted from “a devastating fire,” allegedly as a direct result of the flood, which caused damages in the amount of $37,536.47. Phoenix carried the fire and casualty insurance on the building and, pursuant to the policy, paid the aforementioned amount to Anna and J. W. Ricardi. All of the petitioners, including Phoenix, have demanded compensation from the respondent or, in the alternative, that he institute eminent domain proceedings, all of which he has refused.
The petitioners allege that they have established a clear legal right to writs of mandamus against the respondent to compel him to institute condemnation proceedings for the purpose of ascertaining the value of the property damaged or destroyed and that a jury of freeholders determine the value thereof.
[310]*310In all cases respondent answers by saying that on December 28, 1966, the State Road Commission entered into a contract with Mountain State Construction Company to do certain highway construction work on a portion of West Virginia Route 61 in Montgomery, including a ramp extending from the relocated route to a new bridge spanning the C. & O. Railroad. The ramp construction involved some excavation of the foot of a hillside on the Jacobs’ property and “some sloping and benching of the hillside.” During construction some additional excavation became necessary during which old mine timbers and eventually the mine entry itself were encountered. The entry was followed toward the hillside about thirty-five feet before the contractor ended the day’s work on October 11, 1967. About two and one-half hours later “large volumes of waters broke loose at some point inside said hillside, came out through said excavation, and overflowed certain areas of the City of Montgomery.” Respondent admits that compensation for the resulting damage was demanded by the petitioners, but denies that they were entitled to that compensation. Respondent further alleges that neither he nor his predecessor in office had any knowledge of the existence of the water in the mine since core drillings made into the hillside indicated “no flowing water or consistent water elevation.”
It is respondent’s contention that if anyone is liable for these damages, it is the contractor, since its contract incorporated the “Commissions Standard Specifications, Roads and Bridges, 1960, Sections 1.7.6 and 1.7.10,” which, according to the respondent, “require the construction contractor to conduct the work in such a manner as to provide and insure the safety and convenience of the public and private property along and adjacent to the highway under construction, and to indemnify and save harmless the State Road Commission of West Virginia from any and all actions or claims brought for any damages to any person or property by reason of the contractor’s acts or failure to take suitable precautions to prevent damages . . ..” In the alternative, respondent suggests that the responsibility is that of the mine owner, Jacobs.
[311]*311In a supplemental answer, respondent notes also that since the filing of the petitions in these cases, the petitioners have instituted civil actions in the Fayette County Circuit Court against the contractor, and filed claims in the State Court of Claims against the State Road Commissioner.
These cases were submitted for decision upon oral argument and briefs on May 5, 1970. It is the view of this Court, for reasons to be hereinafter stated, to grant writs of mandamus as prayed for in seven of the above-styled cases and to deny the writ of mandamus in case No. 12864, the Phoenix case.
It is alleged and not denied in these proceedings that the owners of the damaged or destroyed real property were without fault of any kind and contributed in no way to the flooding of the city or to their losses. It is also alleged and not denied that these petitioners are seeking compensation for their damages in civil actions in the Fayette County Circuit Court alleging negligence on the part of the contractor and that they have filed claims with the State Court of Claims against the State Road Commissioner. We are, of course, not called upon to determine whether they can prevail in any of the above-mentioned actions or proceedings, and, of course, they can be compensated only once for their losses if they can prevail. It might well be that one or more of these cases will come back to this Court for final adjudication regardless of what results either in the Circuit Court of Fayette County, the Court of Claims, or pursuant to its recommendation, the action of the legislature with regard to what has come to be called a “moral obligation.” We have before us only the question of whether a proper showing has been made for requiring the respondent to institute eminent domain proceedings against the petitioners in the Circuit Court of Fayette County.
Article III, Section 9, of the Constitution of this State provides that “[p]rivate property shall not be taken or damaged for public use, without just compensation . . ..” However, Article VI, Section 35, of the Constitution provides that “[t]he State of West Virginia shall never be made defendant in any court of law or equity . . ..” These constitutional [312]*312provisions appear to be irreconcilable, but this Court has held that if the State Road Commissioner abuses his discretion in failing to institute an action of eminent domain against a property owner who alleges that his property has been taken or damaged as a result of the construction of a public highway, such commissioner will by this Court be directed in a mandamus proceeding to institute such action to determine whether property has been taken or damaged and, if so, the amount of damage the property owner has suffered. State ex rel. Smeltzer v. State Road Commissioner, 149 W.Va. 641, 142 S.E.2d 886, and cases cited therein.
It is true that the property damaged was not a part of the residue of the Jacobs’ property over which the respondent has secured a right-of-way, and it is also true that the property damaged was not adjacent thereto. However, Article III, Section 9, of the Constitution of West Virginia succinctly provides that “[p]rivate property shall not be taken or damaged for public use, without just compensation . . ..” Note that this provision contains no limitation to residual or adjacent property. The same factual situation prevailed in the very recent case of State ex rel. Lynch v. State Road Commissioner, 151 W.Va. 858, 157 S.E.2d 329, and this Court unanimously held that a writ should be awarded directing the State Road Commissioner to institute eminent domain proceedings to ascertain if the petitioner’s property had been damaged and, if so, to what extent. In the Smeltzer case, in which a writ was awarded, the damage was to property adjoining that over which the road was being constructed and that, too, was a unanimous decision of this Court. This statement is contained in Smeltzer:
The clear legal right which a petitioner must show in such cases is not that he has been damaged or what the amount of the damages is, but that there is reasonable cause to believe that these questions should be resolved by a judge and a jury of freeholders in the county in which the property is located.
There are many decisions of this Court to the same effect, some of which are cited in the Lynch and Smeltzer cases. The [313]*313following paragraph from Hardy v. Simpson, 118 W.Va. 440, 190 S.E. 680, best summarizes this Court’s position regarding the instant cases:
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. (Emphasis added.)
The respondent vehemently maintains that this record shows that the damage to the petitioners’ property was due to negligence and, since the State can never be made a party to an action for damages for negligence, that the writs should be denied, as the granting of them and the institution of actions of eminent domain is indirectly permitting the petitioners to secure possible recoveries against the State for negligence. Inasmuch as eminent domain proceedings are to be instituted as a result of the writs in seven of these cases and since there is pending against the construction company an action for damages as a result of its negligence, it would not be appropriate for this Court to discuss in detail the question of whether there was or there was not negligence resulting in the damage to petitioners’ property; however, we are of the view that if “private property” is “damaged” by the negligence of the State in the construction of a public [314]*314highway, such negligence is not a bar to recovery by the injured party in eminent domain and no such strict application should be given to the above-quoted language from Article III, Section 9, of the Constitution of this State. We believe the following decisions of this Court are consistent with that holding: State ex rel. Teter v. State Road Commission, 152 W.Va. 805, 166 S.E.2d 757; State ex rel. Smeltzer v. State Road Commissioner, 149 W.Va. 641, 142 S.E.2d 886; State ex rel. Murray v. Graney, 143 W.Va. 643, 103 S.E.2d 888; State ex rel. Griggs v. Graney, 143 W.Va. 610, 103 S.E.2d 878; Appalachian Electric Power Co. v. State Road Commissioner, 141 W.Va. 769, 93 S.E.2d 25; Hardy v. Simpson, 118 W.Va. 440, 190 S.E. 680; Cline v. Norfolk & Western Ry. Co., 69 W.Va. 436, 71 S.E. 705. Furthermore, the fact that there is an agreement between the respondent and Mountain State Construction Company “to indemnify and save harmless the State Road Commission of West Virginia from any and all actions or claims brought for any damages to any person or property by reason of the contractor’s acts or failure to take suitable precautions to prevent damages . . .” in no way affects the petitioners’ right to have their cases adjudicated in eminent domain proceedings, and if the respondent has a judgment or judgments entered against him and is able to recoup the losses as a result of this agreement, the taxpayers will be relieved of that financial burden.
It should be pointed out here that this Court notes the issue of ownership of the various properties in question as raised by respondent’s demurrer and discussed in respondent’s briefs. We do not feel that it is necessary in this proceeding to determine either the factual or legal issues raised with regard to this matter, and will leave them for determination by the circuit court in the eminent domain proceedings. It might be added that if the parties herein felt that this was a factual issue that should be resolved by this Court, they should have introduced other evidence bearing upon the matter, but, of course, this is of no import in light of our holding.
It is the view of this Court that the writ should be denied in the Phoenix case for the reason that the property owners [315]*315have suffered no loss as a result of the flooding of their property, they having. been fully reimbursed by the Phoenix Insurance Company, and neither Article III, Section 9, of the Constitution of this State nor the enabling statutory legislation was intended to apply to a subrogee. Phoenix Insurance Company received premiums for its insurance upon this property and when the damage was incurred, it paid the insured as provided in the contract of insurance between the parties. Therefore, the writ in that case will be denied.
In No. 12865, State ex rel. Kathleen Thomas, Executrix, etc., et al. v. William S. Ritchie, Jr., State Road Commissioner of West Virginia; No. 12870, State ex rel. The Trustees, Kanawha Aerie No. 1041, Fraternal Order of Eagles, a corp. v. William S. Ritchie, Jr., State Road Commissioner of West Virginia; No. 12872, State ex rel. Louis F. Murad, et al. v. William S. Ritchie, Jr., State Road Commissioner of West Virginia; No. 12873, State ex rel. Posey A. Martin, et al. v. William S. Ritchie, Jr., State Road Commissioner of West Virginia; No. 12874, State ex rel. Progressive Investments, Inc., a corporation v. William S. Ritchie, Jr., State Road Commissioner of West Virginia; No. 12875, State ex rel. Andrew A. Tabit, et al. v. William S. Ritchie, Jr., State Road Commissioner of West Virginia and No. 12871, State ex rel. Wilson Jacobs, et al. v. William S. Ritchie, Jr., State Road Commissioner of West Virginia, the writs will be awarded against William S. Ritchie, Jr., in his official capacity, granting the relief prayed for. In No. 12864, State ex rel. The Phoenix Insurance Co., etc. v. William S. Ritchie, Jr., State Road Commissioner of West Virginia, the writ will be denied.
Writs awarded and denied.