[573]*573Riley, President:
The State of West Virginia by The State Road Commission, a corporation, invoking the original jurisdiction of this Court, filed its petition in prohibition against the Honorable Julian F. Bouchelle, Judge of the Circuit Court of Kanawha County, and R. H. Dunn and Janet A. Dunn, praying that a writ of prohibition be awarded it, suspending further prosecution of a certain proceeding in eminent domain, now pending in the Circuit Court of Kanawha County, entitled “The State of West Virginia by the State Road Commission of West Virginia, a corporation, v. R. H. Dunn and Janet A. Dunn, his wife, and Central Trust Company, a corporation, trustee,” in which proceeding in eminent domain the circuit court, upon respondents’ answer, ordered The State Road Commission to “amend its petition,” so as to include a certain narrow strip of land, containing approximately 6549 square feet, running between the property presently sought to be taken in the proceeding in eminent domain and the southerly edge of U. S. Route No. 60, as that south edge was established in 1941.
The petitioner in the original petition in the instant proceeding in eminent domain sought to condemn certain lands owned by the defendants, R. H. Dunn and Janet A. Dunn, located along the southerly edge of U. S. Route No. 60, for the purpose of widening a bridge, commonly known as the “Davis Creek bridge,” located on U. S. Route No. 60.
On May 26, 1952, an amended petition was filed in the proceeding in eminent domain which deleted the allegations concerning the purported interest of Central Trust Company, Trustee, and from paragraph eight thereof deleted the words “excepting so much thereof as is occupied by the public road now located thereon”; so that the paragraph reads: “Your petitioner further represents that the land proposed to be condemned is embraced in the description aforesaid and includes all the area within said boundaries.”
[574]*574To the original and amended petitions in the eminent domain proceeding the Dunns filed an answer, alleging that the highway as it existed before it was widened and the improvement was commenced was located upon a strip of land belonging to them, which had not been acquired by the State either by condemnation or otherwise, and that the applicant in the proceeding in eminent domain should not be permitted further to prosecute that proceeding, unless the amended petition was further amended to include such land illegally occupied by the highway.
To this answer the State of West Virginia by the state road commission interposed a demurrer, stating grounds in support thereof as follows: (1) The relief sought in the answer could not properly be granted in a proceeding in eminent domain; (2) if the defendants had any remedy it could only be had in a proceeding in mandamus; and (3) the answer as a matter of law failed to allege a proper defense to a proceeding in eminent domain.
Applicant filed a reply to this answer, which reply alleged that the public road constructed by applicant upon the present right of way of the highway was more than ten years prior to the institution of this proceeding in eminent domain; that the highway had been used as a public road by the public continuously and public moneys and labor expended thereon for more than ten years, so that under the provisions of Code, 17-1-3, the defendants are precluded from asserting title thereto. To that reply the defendants filed a demurrer.
On July 29, 1952, the circuit court entered an order reciting in detail the former proceedings had in the proceeding in eminent domain, which order overruled applicant’s demurrer to the answer of the defendants, sustained defendants’ demurrer to applicant’s reply and ordered that applicant prepare and tender for filing, prior to September 9, 1952, a second amended petition or application, so as to include, in addition to the original tract of land described in the amended petition, the land which the answer alleges belongs to the defendants and under[575]*575lies U. S. Route No. 60 before its widening, containing 6549 square feet and designated on a map filed as an exhibit with defendants’ answer. This order recited that the circuit court by order on June 28, 1952, found that the applicant had a lawful right to take an easement in, over, and through the 6549 square foot-tract of land described in defendants’, answer, nominated thirteen disinterested freeholders, appointed five commissioners who were selected as provided by statute, ordered the commissioners to appear on September 9, 1952, to take and subscribe the oath prescribed by law, organize by appointing one of their number chairman, and one secretary, proceed to the location of the property sought to be prohibited in the proceeding, as set forth in the answer, and report to the court a just compensation for the land belonging to the defendants proposed to be taken, and damages to the residue.
As the rule in prohibition in the instant case was granted on September 2, 1952, returnable September 23, 1952, it does not appear in the record in the proceeding in eminent domain that the order of the circuit court of July 29, 1952, requiring the filing of a second amended petition by the applicant prior to September 9, 1952, has been complied with. If such second amended petition has been filed in the proceeding in eminent domain, it does not appear in the record before us. However, the fact that the order of the circuit court of July 29, 1952, requires the applicant to file a second amended petition so as to include lands claimed by the defendants, which were not included and described in the petition in eminent domain, presents the sole question which we have before us, which is: Does a circuit court, or the judge thereof, have the power in a proceeding in eminent domain to order an applicant to amend the application or petition to include land claimed to be owned by a defendant or defendants in a proceeding in eminent domain, which is not described in the application or petition?
Counsel have directed our attention to the question whether in a proceeding in eminent domain a defendant [576]*576may file a cross bill or an answer in the nature of a cross bill. On this point we are cited to Johnson v. The Freeport and Mississippi River Railway Co., 111 Ill. 413, and The Denver & Rio Grande Railroad Co. v. Griffith, 17 Colo. 598. The holding in the Illinois case is based upon a statute which provides: “Any person not made a party may become such by filing his cross petition, setting forth that he is the owner or has an interest in property, and which will be taken or damaged by the proposed work; and the rights of such last named petitioner shall thereupon be fully considered and determined.” 1872, April 10, Laws, 1871-72, page 402; Smith-Hurd Annot. Statutes, Ch. 47, Sec. 11; and the holding in the Colorado case is likewise based upon a statute to like effect, Vol. III-A, 1935, Colo. Stat. Ann., Ch. 61, Sec. 12. There is no provision permitting a cross bill or an answer in the nature of a cross bill in a proceeding in eminent domain in the statutory law of this State. Whether it was proper to file the defendants answer in the instant proceeding in eminent domain we need not decide, because the matters arising on that answer were merged in the order of the circuit court of July 29, 1952, so far as it required the applicant to include by a second amended petition the tract of 6549 square feet claimed by the defendants.
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[573]*573Riley, President:
The State of West Virginia by The State Road Commission, a corporation, invoking the original jurisdiction of this Court, filed its petition in prohibition against the Honorable Julian F. Bouchelle, Judge of the Circuit Court of Kanawha County, and R. H. Dunn and Janet A. Dunn, praying that a writ of prohibition be awarded it, suspending further prosecution of a certain proceeding in eminent domain, now pending in the Circuit Court of Kanawha County, entitled “The State of West Virginia by the State Road Commission of West Virginia, a corporation, v. R. H. Dunn and Janet A. Dunn, his wife, and Central Trust Company, a corporation, trustee,” in which proceeding in eminent domain the circuit court, upon respondents’ answer, ordered The State Road Commission to “amend its petition,” so as to include a certain narrow strip of land, containing approximately 6549 square feet, running between the property presently sought to be taken in the proceeding in eminent domain and the southerly edge of U. S. Route No. 60, as that south edge was established in 1941.
The petitioner in the original petition in the instant proceeding in eminent domain sought to condemn certain lands owned by the defendants, R. H. Dunn and Janet A. Dunn, located along the southerly edge of U. S. Route No. 60, for the purpose of widening a bridge, commonly known as the “Davis Creek bridge,” located on U. S. Route No. 60.
On May 26, 1952, an amended petition was filed in the proceeding in eminent domain which deleted the allegations concerning the purported interest of Central Trust Company, Trustee, and from paragraph eight thereof deleted the words “excepting so much thereof as is occupied by the public road now located thereon”; so that the paragraph reads: “Your petitioner further represents that the land proposed to be condemned is embraced in the description aforesaid and includes all the area within said boundaries.”
[574]*574To the original and amended petitions in the eminent domain proceeding the Dunns filed an answer, alleging that the highway as it existed before it was widened and the improvement was commenced was located upon a strip of land belonging to them, which had not been acquired by the State either by condemnation or otherwise, and that the applicant in the proceeding in eminent domain should not be permitted further to prosecute that proceeding, unless the amended petition was further amended to include such land illegally occupied by the highway.
To this answer the State of West Virginia by the state road commission interposed a demurrer, stating grounds in support thereof as follows: (1) The relief sought in the answer could not properly be granted in a proceeding in eminent domain; (2) if the defendants had any remedy it could only be had in a proceeding in mandamus; and (3) the answer as a matter of law failed to allege a proper defense to a proceeding in eminent domain.
Applicant filed a reply to this answer, which reply alleged that the public road constructed by applicant upon the present right of way of the highway was more than ten years prior to the institution of this proceeding in eminent domain; that the highway had been used as a public road by the public continuously and public moneys and labor expended thereon for more than ten years, so that under the provisions of Code, 17-1-3, the defendants are precluded from asserting title thereto. To that reply the defendants filed a demurrer.
On July 29, 1952, the circuit court entered an order reciting in detail the former proceedings had in the proceeding in eminent domain, which order overruled applicant’s demurrer to the answer of the defendants, sustained defendants’ demurrer to applicant’s reply and ordered that applicant prepare and tender for filing, prior to September 9, 1952, a second amended petition or application, so as to include, in addition to the original tract of land described in the amended petition, the land which the answer alleges belongs to the defendants and under[575]*575lies U. S. Route No. 60 before its widening, containing 6549 square feet and designated on a map filed as an exhibit with defendants’ answer. This order recited that the circuit court by order on June 28, 1952, found that the applicant had a lawful right to take an easement in, over, and through the 6549 square foot-tract of land described in defendants’, answer, nominated thirteen disinterested freeholders, appointed five commissioners who were selected as provided by statute, ordered the commissioners to appear on September 9, 1952, to take and subscribe the oath prescribed by law, organize by appointing one of their number chairman, and one secretary, proceed to the location of the property sought to be prohibited in the proceeding, as set forth in the answer, and report to the court a just compensation for the land belonging to the defendants proposed to be taken, and damages to the residue.
As the rule in prohibition in the instant case was granted on September 2, 1952, returnable September 23, 1952, it does not appear in the record in the proceeding in eminent domain that the order of the circuit court of July 29, 1952, requiring the filing of a second amended petition by the applicant prior to September 9, 1952, has been complied with. If such second amended petition has been filed in the proceeding in eminent domain, it does not appear in the record before us. However, the fact that the order of the circuit court of July 29, 1952, requires the applicant to file a second amended petition so as to include lands claimed by the defendants, which were not included and described in the petition in eminent domain, presents the sole question which we have before us, which is: Does a circuit court, or the judge thereof, have the power in a proceeding in eminent domain to order an applicant to amend the application or petition to include land claimed to be owned by a defendant or defendants in a proceeding in eminent domain, which is not described in the application or petition?
Counsel have directed our attention to the question whether in a proceeding in eminent domain a defendant [576]*576may file a cross bill or an answer in the nature of a cross bill. On this point we are cited to Johnson v. The Freeport and Mississippi River Railway Co., 111 Ill. 413, and The Denver & Rio Grande Railroad Co. v. Griffith, 17 Colo. 598. The holding in the Illinois case is based upon a statute which provides: “Any person not made a party may become such by filing his cross petition, setting forth that he is the owner or has an interest in property, and which will be taken or damaged by the proposed work; and the rights of such last named petitioner shall thereupon be fully considered and determined.” 1872, April 10, Laws, 1871-72, page 402; Smith-Hurd Annot. Statutes, Ch. 47, Sec. 11; and the holding in the Colorado case is likewise based upon a statute to like effect, Vol. III-A, 1935, Colo. Stat. Ann., Ch. 61, Sec. 12. There is no provision permitting a cross bill or an answer in the nature of a cross bill in a proceeding in eminent domain in the statutory law of this State. Whether it was proper to file the defendants answer in the instant proceeding in eminent domain we need not decide, because the matters arising on that answer were merged in the order of the circuit court of July 29, 1952, so far as it required the applicant to include by a second amended petition the tract of 6549 square feet claimed by the defendants.
The jurisdiction of a circuit court over a proceeding in eminent domain is statutory, which statutes, under our practice, must be strictly construed. McConiha v. Guthrie, Judge, 21 W. Va. 134, 142.
The provisions of the statute which relate to the powers of a court in a proceeding in eminent domain are: West Virginia Code, 54-2-1, which reads:
“In any case in which property may lawfully be taken for a public use, application may be made by petition to the circuit court or the judge thereof in vacation, of the county in which the estate is situated, to appoint commissioners to ascertain a just compensation to the owners of the estate proposed to be taken. If a tract lies partly in one county and partly in another, the application in [577]*577relation thereto may be made in either county;”
and Code, 54-2-2, which reads:
“The pleadings shall be in writing and shall be verified. The petition shall describe with reasonable certainty the property proposed to be taken, and may embrace one or more parcels of land where the ownership is the same. If an estate less than a fee is proposed to be taken, the petition shall describe with reasonable certainty the particular estate less than the fee which it is proposed to take, the name of the owner or owners thereof, the manner and extent of their respective interests. If there are any liens upon or conflicting claims to such real estate, the petition shall state the nature and amount of such liens and claims and the names and places of residence as of the persons who hold the same, so far as known to the petitioner. It shall also state the use to which the estate sought to be taken is intended to be appropriated.”
As can be readily seen the above-quoted statutory provisions, which should be strictly construed under the holding in the McConiha case, do not disclose any delegation to a trial court, having jurisdiction of a proceeding in eminent domain, of power to require the applicant to amend the position so as to include property claimed by the owner of the property sought to be condemned, not embraced in the original petition. In so holding we do not hold that an applicant in a proceeding in eminent domain may not amend his petition voluntarily, nor is it necessary for us to do so, because the instant case involves an involuntary amendment of applicant’s petition over the applicant’s objection.
Though it is true the questions whether the proposed use of property is public or private and the ascertainment of just compensation to be paid to the owner are judicial in their nature, State ex rel. United Fuel Gas Co. v. Max DeBerry, Judge, etc., et al., 130 W. Va. 481, pt. 1 syl., 43 S. E. 2d 415, the sole discretion to determine what quantity of land is necessary for a public use is vested in the agency resorting to eminent domain; and such discretion [578]*578will not be interfered with by the courts' unless it has been abused. State v. Horner, 121 W. Va. 75, pt. 3 syl., op. page 80, 1 S. E. 2d 486; Shelton v. State Road Commission, 113 W. Va. 191, syl., 167 S. E. 444; The City of Huntington v. Frederick Holding Co., 85 W. Va. 241, pt. 3 syl., 101 S. E. 461.
It follows from the foregoing that the Circuit Court of Kanawha County, though it had jurisdiction of the instant proceeding in eminent domain, exceeded its legitimate powers in ordering applicant to amend its amended petition so as to include the tract of 6549 square feet, which was not included in the original and amended petitions; and, therefore, the writ of prohibition prayed for should issue. “The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.” Code, 53-1-1.
The question whether under Code, 17-1-3, the defendants are barred from instituting a proceeding in mandamus to compel the State of West Virginia by the state road commission to institute a proceeding in eminent domain for the purpose of acquiring for the public use the strip of land of 6549 square feet claimed by the defendants, is not presented by this record.
For the foregoing reasons the writ of prohibition is awarded directed to the respondent Judge and the respondents, R. H. Dunn and Janet A. Dunn, and each of them, prohibiting them from litigating any question involving the tract of 6549 square feet, as a part of the land sought to be condemned in the instant proceeding in eminent domain.
Writ awarded.