Chapter 54. EMINENT DOMAIN.
Article 1. Right of Eminent Domain.
Revisers’ Note.—The following sections of c. 42, Code 1923, are omitted: Section 1, as it is a repe a tition of §9, art. 3, Const.; §2a, as covered by §2, f art. 1 of this chapter; §§4 and 16, as in conflict with the provisions of §2, art. 2 of this chapter; p §8, as unnecessary in view of the provisions of §3, t art. 2 of this chapter; §9, as it is deemed more t equitable to impose the cost of condemnation proo ceedings upon the applicant in all cases (see §16, art. 2 of this chapter and revisers’ note thereto), e and as the portion of said §9 dealing with the order s and its effect is superseded by §20, art. 2 of this p chapter. b c
§1. Bodies Which May Exercise the Power of Eminent Domain.—The United States of America, the State of West Virginia, and every corporate body politic heretofore or hereafter created by the Constitution or statutes of the State, and every corporation heretofore or hereafter organized under the laws of, or authorized to transact business in, the State, for any purpose of internal improvement for which private property may be taken or damaged for public use as authorized in section two of this article, shall have the right of eminent domain, and may exercise the same to the extent and in the manner provided in this chapter, and subject to the restrictions and limitations provided by law.
Revisers’ Note.—This section is new. It defines generally the sovereignties and companies which may exercise the right of eminent domain.
§2. Public Uses for Which Private Property May be Taken or Damaged.—The public uses for which private property may be taken or damaged are as follows:
(a) For the construction, maintenance and operation of railroads and traction lines (including extension, lateral and branch lines, spurs, switches and sidetracks), canals, public landings, wharves, bridges, public roads, streets, alleys, parks and other works of internal improvement, for the public use;
(b) For the construction and maintenance of telegraph, telephone, electric light, heat and power plants, systems, lines, transmission lines, conduits, stations (including branch, spur and service lines), when for public use;
(c) For constructing, maintaining and operating pipe lines, plants, systems and storage facilities for manufacturing gas and for transporting petroleum oil, natural gas, manufactured gas, and all mixtures and combinations thereof, by means of pipes, pressure stations, or otherwise (including the construction and operation of telephone and telegraph lines for the service of such systems and plants), when for public use. Nothing in this subdivision shall be construed to interfere with the power of county courts of the State, counties, and municipal corporations, to enact and enforce ordinances and regulations deemed necessary to protect the lives and property of citizens from the effects of explosions of oil or gas;
(d) For constructing, maintaining and operating, water plants and systems, including lines for transporting water by any corporate body politic, or private corporation, for supplying water to the inhabitants of any city, town, village or community, for public use, including lands for pump stations, reservoirs, cisterns, storage dams, and other means of storing, purifying and transporting water, and the right to take and damage lands which may be flooded by the impounded waters, and to appropriate any spring, stream and the surrounding property necessary to protect, preserve and maintain the purity of any such spring, stream, reservoir, cistern and water impounded by means of any storage dam;
(e) For the purpose of constructing, maintaining and operating sewer systems, lines and sewage disposal plants, to collect, transport and dispose of sewage. When in the interest of the public welfare and the preservation of the public health, the construction of a sewer line to serve a single building or institution shall be deemed a public use, and, for such purpose, the right of eminent domain, if within a municipal corporation, may be exercised in the name of the municipal corporation, and if not within a municipal corporation, in the name of the county court of the county in which the property is located;
(f) For the reasonable use by an incorporated company engaged in a public enterprise of which the State or any county or municipality is the sole or a part owner;
(g) For courthouses and municipal buildings, parks, public playgrounds, the location of public monuments, and all other public buildings;
(h) For cemeteries, and the extension and enlargement of existing cemeteries: Provided, That no lands shall be taken for cemetery purposes which lie within four hundred feet of a dwelling house, unless to extend the boundaries of an existing cemetery, and then only in such manner that the limits of the existing cemetery shall not be extended nearer than four hundred feet of any dwelling house distant four hundred feet or more from such cemetery, or nearer than it was to any dwelling house which is within four hundred feet thereof;
(i) For public schools, public libraries, and public hospitals;
(j) For the construction and operation of booms (including approaches, landings and ways necessary for such objects), when for a public use;
(k) By the State of West Virginia for any and every other public use, object and purpose not herein specifically mentioned. By the United States of America for each and every legitimate public use, need and purpose of the government of the United States, within the purview, and subject to the provisions of, chapter one of this Code.(1875, c. 114; 1877, c. 121; 1879, c. 8; 1881, c. 18; 1885, c. 7; 1907, Ex. Sess., c. 13; 1913, c. 12; 1915, c. 22; Code 1923, c. 42, §2.)
Revisers’ Note.—Section 2, c. 42, Code 1923, is somewhat broadened but is generally in line with court decisions. Specific provision is made for public parks, playgrounds, libraries, hospitals, public memorials, etc., although the same were doubtless within the contemplation of former statutes. Power is given to condemn for sewerage purposes for a single building or institution because in the interest of the public health and general welfare. Railroads and other public utility lines following the streams frequently prevent proper sewerage of buildings, and under prior statutes the owner was helpless. Section 14, c. 52, and §20, c. 54A, Code 1923, are omitted as unnecessary, in so far as there may be a necessity for the taking, and unconstitutional if they go beyond necessity. The objects and purposes intended to be covered are clarified and made more definite. Restriction upon the exercise of the right of eminent domain by hydroelectric companies, railroad companies, etc., are found in the statutes treating of those particular companies. The right of eminent domain is given to a company of which a county or municipality, as well as the State, is the sole or a part owner. Subdivision (1) is new. It is intended to include any object or purpose, not specifically mentioned, for which the right of eminent domain may be exercised.
Committee’s Note.—In subdivision (a) the word “and” after “railroads” and the words “extension, lateral and” after “including” are new. The latter change is made to harmonize with changes in art. 2, c. 31.
Legislative Note.—Subdivision (1) of the above section, as reported by the revisers, is omitted.
§3. Entry on Lands.—Any incorporated company or body politic, invested with the power of eminent domain under this chapter, by its officers, servants and agents may enter upon lands for the purpose of examining the same, surveying and laying out the lands, ways and easements which it desires to appropriate, provided no injury be done to the owner or possessor of the land; but no company or body politic, under the authority of this section, shall throw open fences or inclosures on any land, or construct its works through or upon the same, or in any wise injure the property of the owner or possessor, without his consent, until it shall have obtained the right so to do in the manner provided in this chapter.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 52, §5; 1870, c. 88; 1883, c. 30; Code 1923, c. 52, §5.)
Revisers’ Note.—This section contains the first part of §5, c. 52, Code 1923, broadened to give to the State and subdivisions thereof the same rights with respect to entries on land, making surveys, etc., that prior statutes conferred upon incorporated companies. The other provisions of said §5 are covered in the following section of this article.
§4. Restrictions as to Dwelling Houses.—No railroad company, or other company of internal improvement, in locating and constructing its lines shall invade the dwelling house of any person, or any space within sixty feet thereof, without the consent of the owner, unless necessary so to do in passing through a narrow gorge, defile or narrow pass, or to avoid undesirable curves and grades, in the construction of its railroad, or to eliminate such curves and grades in any railroad heretofore constructed. This prohibition shall not apply to the territory within any municipal corporation.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 52; 1870, c. 88; 1883, c. 30; Code 1923, c. 52, §5.)
Revisers’ Note.—This section covers the latter part of §5, c. 52, Code 1923, modified so as to authorize the proper construction or improvement of a railroad by avoiding or eliminating undesirable curves and grades. The rest of said §5 is covered in the preceding section.
§5. Same.—No line for the transportation of natural or artificial gas under pressure or for the transportation of petroleum oil, and no tank for storing oil or natural gas, shall be laid or constructed within one hundred feet of any occupied dwelling house, without the consent of the owner. This section shall not apply to the territory within municipal corporations.(1891, c. 113; Code 1923, c. 52, §24.)
Revisers’ Note.—The remaining provisions of §24, c. 52, Code 1923, are covered in §§2 and 3 of this article, in art. 2 of this chapter and in the statutes with respect to common carriers and the use of streets and public highways by common carriers.
Committee’s Note.—In the last sentence the words “the territory within” are new.
§6. Quantity of Land Acquired.—The land acquired by condemnation by any company in corporated for a work of internal improvement along its line generally, shall not exceed one hundred and fifty feet in width, except in deep cuts and fillings, and then only so much more shall be acquired as may be reasonably necessary therefor; the land which it may acquire for buildings, or for an abutment along its line generally, shall not exceed three acres in any one parcel; and the land which it may acquire for buildings or other purposes of the company at the principal termini of its work, or at any place or places within five miles of such termini, shall not exceed fifteen acres in any one parcel, but in the case of a railroad company, an amount of land not exceeding one hundred acres in any one parcel, may be acquired for its main depots, machine shops, termini, and other necessary purposes connected with the business of such company: Provided, however, That such limitation of area shall not apply to land acquired for the purpose of railroad yards, and that for such purpose of railroad yards any railroad company may acquire in any one parcel so much land as may be reasonably necessary.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 52, §6; 1919, c. 44; Code 1923, c. 52, §6.)
Revisers’ Note.—The word “yards” is added in the last sentence, as there has been some question whether a railroad company can condemn for yards except at its termini. The maximum width of the right of way is increased from one hundred to one hundred and fifty feet, to meet modern conditions, especially those arising in connection with transmission lines.
Committee’s Note.—The word “yards,” added by the revisers, is eliminated, and in lieu thereof the proviso at the end of the section is added.
§7. Roadways; Crossings.—If any company shall acquire land under the provisions of this chapter, and, in the construction and operation of its work of internal improvement, obstruct or impede the owner of the residue of the tract of land from crossing the land so acquired, when such crossing is essential for the proper use of the remaining land of the owner, it shall permit the owner of the land to construct, maintain and use suitable crossings over the land so acquired. If such land shall have theretofore been cleared and fenced, or shall thereafter be cleared and fenced, the company shall construct and forever maintain suitable farm crossings to adequately serve the tract of land as a whole, and, if a railroad company, cattle guards and fences, on both sides of the lands condemned and appropriated.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 52; Code 1923, c. 42, §14, c. 52, §9.)
Revisers’ Note.—This section contains the substance of §9, c. 52, Code 1923, redrafted to harmonize it with the latter part of §14, c. 42, Code 1923, which is also included. The provisions are broadened to include all companies empowered to condemn. Crossings are required only where the use made of the land by the condemnor impedes or obstructs the passage over it. The last clause of said §14 is omitted as being an improper interference with the public need and because any individual concerned has an adequate remedy for the enforcement of his right or for any injury resulting from the failure of a railroad company to construct the fences, etc., required. The rest of said §14 is covered in §9, art. 2 of this chapter.
§8. Estate Acquired; Taxation.—Any corporation, or body politic, authorized to acquire private property for public use under the provisions of this chapter, may acquire an estate in fee simple, or any lesser estate therein. As to any land in which a railroad company shall acquire an estate less than a fee, for the construction of any part of its railroad, and as to any land in which any other condemnor shall acquire an estate less than a fee and in the use made of such lands shall deprive the former owner of the possession thereof and the right to cultivate and graze the same, such lands shall be assessed for taxation against the condemnor and his successor in title the same as if the tract had been appropriated in fee; and the payment of the taxes thereon by such condemnor in any case shall inure to the benefit of the holder of the estate in the land not condemned and appropriated, and shall preserve the same from forfeiture as to him.(1907, c. 74; 1915, c. 23; Code 1923, c. 42, §18.)
Revisers’ Note.—This section covers the provisions found in the latter part of §18, c. 42, Code 1923, broadened so as to allow other companies, as well as railroads, pipeline companies, etc., to acquire an estate less than a fee, and to require them to pay the taxes on the land in which an estate less than a fee is acquired, if the use made by the company so acquiring it deprives the owner of the remaining estate in the land from the beneficial use thereof, such payment in all cases to inure to the benefit of the holder of the estate not condemned and appropriated. As formerly, railroads are required to pay such taxes in all cases. The provision as to assessing damages when less than a fee is taken is covered in §9, art. 2 of this chapter. The reference to §43a, c. 29, Code 1891, is omitted as obsolete.
§9. Crossings, Connections or Alteration of Works; Suit in Equity.—If any railroad, canal company, company organized for the purpose of transporting carbon oil or natural or manufactured gas, or both, by means of pipes or otherwise, telephone or telegraph company, company operating an electric transmission line, the state road commission, or any county court, deem it necessary in the construction of its work, or any branch or siding thereof, to cross any other railroad, canal, pipe line, any state or other public road at grade or otherwise, telephone or telegraph line or electric transmission line, it may do so, provided its works be so constructed as not to impede the passage or transportation of persons, property, or commodities along, over or through the same. If any such company desire that the course of any other railroad, canal, pipe line, state, or other public road, telephone or telegraph line, electric transmission line, or any stream which is not a public highway, should be altered to avoid the necessity of any crossing, or of frequent crossings, or to facilitate the crossing thereof, or the construction of a parallel work, the alteration may be made in such manner as may be agreed between the company desiring such alteration and the other railroad, or canal company, or pipe line company, or state road commission in the case of a state road, the owner of the land to be affected by the alteration of the course of such stream, telephone and telegraph company or the company operating such electric transmission line. In case the parties interested fail to agree upon such crossing or alteration as is desired, the company desiring it may bring suit in equity, and in such suit the court may, in a proper case, decree that such, or any proper crossing, or alteration, may be made upon payment of damages to be ascertained as provided in article two of this chapter and the company desiring such crossing or alteration may thereupon proceed under said article two to obtain the right to make such crossing or alteration. If such crossing or alteration as is allowed by this section shall cause damage to any party or person, or to the owner of any lands, then the railroad, canal, pipe line company, telephone or telegraph company, or company operating such electric transmission line, or state road commission or county court, shall pay such damages; but any county-district road may be altered by any such company for the purpose aforesaid, whenever it shall have made an equally convenient road in lieu thereof.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 52; 1881, c. 16; 1907, c. 43; Code 1923, c. 52, §11.)
Revisers’ Note.—This is §11, c. 52, Code 1923, broadened to include telephone, telegraph lines, and lines for transmission of electricity, and to give to county courts and the state road commission the right to make crossings over works of utility companies. References to a turnpike, and to the board of public works as concerned therewith are omitted as obsolete and the terms “state road” and “state road commission” are inserted. This section covers the subject of the right of a utility company or a corporate body politic to invade or use, or damage, the property of another such company, or of the public, in the construction of its works in the first instance and for this reason the duty to pay all damages is placed upon such company.
§10. Taking Wood and Other Materials and Water; Deposits of Waste; Cutting Trees.—Any railroad company may, in the manner provided by this chapter, enter upon and take from any land adjacent to or in the vicinity of its road, wood, earth, gravel, shale, stone or other material necessary to be used in constructing, maintaining, repairing, operating, enlarging or altering its road, and in like manner may acquire land for any such purpose, or for the purpose of depositing and wasting thereon earth, gravel, shale, stone or other material excavated by it in the construction, maintenance, repair, operation, alteration or enlargement of its railroad. Any railroad company may in like manner take, impound and consume any and all water not required by the owner thereof and necessary for the use of its engines, whether locomotive or stationary, and such land contiguous to such water as shall be required for the construction of suitable wells or reservoirs, locating its pumps and machinery, the erection of necessary buildings and for a right of way thereto; and may also acquire such right of way as may be necessary for pipes to be used for conducting such water to the proper locality: Provided, That the owner of the land on which the water condemned is situated, or the riparian owners below affected, shall have the right to use water necessary for purposes connected with the proper use and operation of their land, or for domestic purposes or the watering of domestic animals. Any railroad company may take and cut down any standing trees that may be in danger of falling upon or obstructing its railroad, making compensation therefor in the manner provided by this chapter.(Code 1849, c. 56, §26; Code 1860, c. 56, §57; Code 1868, c. 52, §14; 1881, c. 16, §14; 1905, c. 41, §14; Code 1923, c. 52, §14.)
Committee’s Note.—This section restores in modified form portions of §14, c. 52, Code 1923, which section was omitted by the revisers.
§11. Specific Purposes Not a Limitation.—The power of eminent domain conferred on any incorporated company or body politic by sections one and two of this article shall not be deemed or construed to be limited or restricted in any manner by the enumeration by any other provision of this Code of any specific purpose for which such power may be exercised.
Committee’s Note.—This section is new.
Article 2. Procedure.
§1. Jurisdiction.—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 to 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 relation thereto may be made in either county.(Code 1860, p. 324; Code 1868, c. 42, §§2, 3; 1875, c. 114, §3; 1879, c. 8; 1881, c. 18; 1882, c. 150; Code 1923, c. 42, §3.)
Revisers’ Note.—The last sentence of §3, c. 42, Code 1923, providing for a change of venue when the judge is interested or otherwise disqualified, is omitted, because covered by §1, subdivision (g), art. 1, c. 56, together with §8, art. 2, c. 51. A clause is added giving jurisdiction to the judge in vacation. This is similar to the present Virginia statute. The words “by petition” are added so as to designate the character of the application.
§2. Pleadings; Verification.—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 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.(Code 1868, c. 42, §5; 1875, c. 114, §5; 1881, c. 18; Code 1923, c. 42, §5.)
Revisers’ Note.—The substance of this section is found in §5, c. 42, Code 1923. It permits condemnation of an estate less than a fee in any case. This is deemed advisable and in the interest of the landowner and §18, c. 42, Code 1923, so provided as to railroad, pipe line and other companies. No reason appears why in any case the party exercising the right of eminent domain should acquire title to such minerals as oil or gas underlying the land appropriated. Furthermore, the value of such minerals is not susceptible of proof, because of the uncertainty as to their existence or quantity. It is not deemed wise to permit joining the owners of distinct and separate tracts of land in the same proceeding, as each owner should be permitted to defend his rights without uniting in other matters in which he has no interest. The provision for stating the amount which the applicant is ready to pay, contained in §9, c. 42, Code 1923, is omitted for the reason that it is deemed equitable to impose the cost of the condemnation proceedings upon the applicant in all cases.
Committee’s Note.—In the third sentence the words “owners thereof” are inserted in lieu of “ownership.”
§3. Notice; Riparian Owner Affected by Taking of Water.—Of such application ten days’ notice shall be served on the owners, claimants and persons holding liens, whose interests the applicant seeks to condemn, and the notice may be given either before the petition is presented or afterwards. But where the owners of the real estate proposed to be taken, or the persons holding such liens or conflicting claims, or any of them, are not in the county or are unknown to the applicant, the notice as to them, instead of being thus served, may be given by advertisement containing (by reference to a plat filed for the purpose in the office of the clerk of the circuit court or otherwise) a specific description of the property in which they are interested that is proposed to be taken, and stating the purpose to which it is intended to be appropriated, and the time and place at which a hearing will be asked upon the application, which advertisement shall be published at least once a week for four successive weeks in some newspaper published in the county, or, if none be published therein, then in some newspaper of general circulation in the county.
Where water is to be taken as authorized in section ten, article one of this chapter, notice to riparian owners having lands below the point at which the water is proposed to be taken, and likely to be affected thereby, shall be given by publishing the same once each week for four successive weeks in some newspaper of general circulation published in the county. Any such riparian owner may come into court or before the judge of such court in vacation, on the return day of the notice and publication, make himself a party to the proceedings and have his rights passed upon by the commissioners, and his damage, if any, ascertained, allowed and paid as in this chapter provided for the taking of lands.(Code 1860, p. 324; Code 1868, c. 42, §6; 1875, c. 114, §6; 1881, c. 18; Code 1923, c. 42, §6.)
Revisers’ Note.—Section 6, c. 42, Code 1923, is changed so as to apply to a proceeding against each tract. See revisers’ note to the preceding section. The period of publication is fixed at two instead of four weeks, and the provision for posting is omitted. Provision is made for giving notice after the petition is filed, as well as before, so that persons omitted in the original notice or not served may be brought into court before the matter is heard. This renders §8, c. 42, Code 1923, unnecessary and it is therefore omitted.
Committee’s Note.—In the first sentence the words “whose interests the applicant seeks to condemn” are new. The second paragraph also is new. It is added to conform to §10, art. 1 of this chapter, and restores portions of the last sentence of §14, c. 52, Code 1923, omitted by the revisers.
Legislative Note.—The period of publication is restored to four weeks.
§4. Persons Under Disability.—If the owner, or person holding any lien or claim, be under disability and there be a guardian or committee for him, such guardian or committee shall be notified; but if there be no guardian or committee or if any such owner or person be unknown, the court, or judge thereof in vacation, shall appoint a guardian ad litem to defend his interests, and may direct the expense of such guardian ad litem, including a reasonable docket fee, to be fixed by the court or judge, but not to exceed twenty dollars, to be taxed as costs and paid by the applicant.(Code 1868, c. 42, §7; 1875, c. 114, §7; 1881, c. 18, §7; Code 1923, c. 42, §7.)
Revisers’ Note.—Section 7, c. 42, Code 1923, is broadened to permit the judge to act in vacation.
§5. Commissioners; Qualification.—When it shall appear to the court, or the judge thereof in vacation, that proper notice has been given and that the case is one in which the applicant has lawful right to take private property for the purposes stated in the petition, upon making just compensation, five disinterested freeholders shall be appointed commissioners to ascertain what will be a just compensation to the person entitled thereto, for the real estate or interest therein proposed to be taken. No person shall be deemed interested or incompetent to act as commissioner, by reason of his being an inhabitant of the county, district, or municipal corporation, on behalf of which application is made, or holding property therein.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 42, §10; 1875, c. 114; 1881, c. 18; Code 1923, c. 42, §10.)
Revisers’ Note.—Section 10, c. 42, Code 1923, is modified so as to provide for a hearing in vacation and to conform to the provision in §8, art. 1, and §2 of this article, for taking an estate less than a fee. As §9, c. 42, Code 1923, is omitted, the reference to it is not included. See revisers’ note at the beginning of this chapter covering the omission of said §9.
§6. How Commissioners Appointed.—The appointment shall be made as follows: Thirteen disinterested freeholders shall be nominated by the court, or the judge thereof in vacation, of whom the applicant may strike off four from the list, and the defendant or defendants may also strike off four, and after eight names are stricken from the list the remaining five shall be the commissioners. But where there is no appearance for the defense, or the right to strike off any one or more names is waived on the part of either the applicant or defendant, or from any cause the full number shall not be stricken off by the parties, the name or additional names, as the case may be, to be stricken from the list in order to reduce the number to five, shall be ascertained by lot under direction of the court or the judge thereof in vacation. The court, or judge thereof in vacation, may for good cause remove any commissioner and fill any vacancy.(Code 1868, c. 42, §11; 1875, c. 114, §11; 1881, c. 18; Code 1923, c. 42, §11.)
Revisers’ Note.—This is substantially §11, c. 42, Code 1923, changed to apply to one tract in a proceeding and to authorize the judge to act in vacation.
§7. Oath of Commissioners.—Before entering upon the discharge of his duties, each commissioner shall take an oath before some person authorized by law to administer the same, that he will honestly and impartially perform his duties as such commissioner to the best of his skill and judgment; which oath shall be certified by the person administering the same, and filed with the papers of the case, in the office of the clerk of the court.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 42, §12; 1875, c. 114, §12; 1881, c. 18; Code 1923, c. 42, §12.)
§8. Powers of Commissioners; Hearings.—Any three of the commissioners may act in the absence of the others, and any one of them may sign and issue subpoenas for witnesses in like manner as a justice, and with like effect; and may swear any witness who appears before them, that the evidence which he will give relating to the matters to be reported upon by the said commissioners shall be the truth, the whole truth, and nothing but the truth. They may adjourn their sessions from time to time as shall be necessary; and any person interested may attend in person or by attorney, produce and examine witnesses, read depositions duly taken, and other proper evidence, and be heard, if he requests it, in support of his rights, according to the usages and rules of law.(Code 1868, c. 42, §13; 1875, c. 114, §13; 1881, c. 18; Code 1923, c. 42, §13.)
§9. Report of Commissioners; Elements of Damages.—The commissioners, after viewing the property and hearing any proper evidence which is offered, shall ascertain what will be a just compensation to the person entitled thereto for so much thereof as is proposed to be taken, or for the interest therein, if less than a fee, and for damage to the residue of the tract, beyond the peculiar benefits to be derived, in respect to such residue, from the work to be constructed, or the purpose to which the land to be taken is to be appropriated, including, when less than the fee is taken, the actual damage, if any, done, or that may be done, to the fee by such construction, and make report to the following effect: We, the commissioners, appointed by the circuit court of ........................... county, (or by the judge thereof in vacation, as the case may be) by an order made on the ....... day of............................, on the application of........................................., respectfully report, that having been first duly sworn, we have viewed the real estate owned by ......................................., mentioned in the said application, and are of opinion that...................... dollars will be a just compensation for so much of the said real estate as is proposed to be taken by the said applicant, that is to say: (here describe the part to be taken, and the interest therein, if less than a fee, so as to identify the same with reasonable certainty, which description may be supplemented by reference to a plat annexed to the report, or in any manner that would be sufficient in a conveyance) as well as for damages to the residue of the said real estate beyond the peculiar benefits which will be derived in respect to such residue from the work to be constructed (or from the purposes to which the part to be taken by said applicant is to be appropriated). Given under our hands this ........................ day of ……………………………………………
But if the property is proposed to be taken by a company incorporated for the construction of a railroad, no damages shall be ascertained for the construction of any farm crossings, fences or cattle guards, or for keeping the same in repair. The report shall be signed by at least three of the commissioners, and forthwith returned to the clerk’s office of the court, to be filed with the papers of the case.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 42; 1875, c. 114; 1881, c. 18; 1882, c. 80; 1901, c. 81; Code 1923, c. 42, §§14, 15, 18.)
Revisers’ Note.—This section embraces the substance of §§14 and 15, c. 42, Code 1923, and the provision with respect to assessing damages when less than the fee is taken contained in §18, c. 42, Code 1923. The provision in §14, c. 42, with respect to fixing the duty of a railroad company to maintain crossings, cattle guards, fences, etc., is contained in §7, art. 1 of this chapter, as it has no proper place in this section, which deals with procedure only. Provision is made for the judge to act in vacation.
§10. Proceedings on Report; Trial by Jury.—Within ten days after such report is returned and filed as aforesaid either party may file exceptions thereto, and demand that the question of the compensation to be paid be ascertained by a jury, in which case a jury of twelve freeholders shall be selected and impaneled for the purpose, in such manner as the court shall direct. But no person shall sit on such jury who is the owner of, or interested in, any land over or through which such work of internal improvement will pass. The cause shall be tried as other causes in such court, and the jury, in ascertaining the damage or compensation to which the owner of the land proposed to be taken is entitled, shall be governed by section nine of this article. If no exceptions be filed to such report, and neither party demand a trial by jury as aforesaid, the court, or the judge thereof in vacation, unless good cause be shown against it, or it be defective or erroneous on its face, shall confirm such report, and order it to be recorded in the law order book of the court.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 42, §17; 1875, c. 114, §18; 1881, c. 18; Code 1923, c. 42, §17.)
Revisers’ Note.—This section covers the substance of §17, c. 42, Code 1923, with the following modifications: (a) The time within which to file exceptions is limited to ten days; (b) the word “railroad” is changed to “work of internal improvement”; (c) the judge may confirm the report in vacation; (d) the portion of said §17 following the last semicolon is omitted as provision is made in §3 of this article for notice after the petition is filed to any person not included in the original notice or who was not served therewith.
§11. Setting Aside Report; Recommittal; New Commissioners.—If good cause be shown against the report, or if it be defective or erroneous on its face, the court or judge thereof in vacation, as may seem to be proper, may set it aside or recommit it to the same commissioners for further report; or other commissioners may be appointed in the manner hereinbefore provided, with or without further notice, as the court or judge may order. If the commissioners report their disagreement, or fail to report in reasonable time, other commissioners may in like manner be appointed. And so again, from time to time, as often as may be necessary.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 42, §19; 1875, c. 114, §20; 1881, c. 18; Code 1923, c. 42, §19.)
Revisers’ Note.—Section 19, c. 42, Code 1923, is modified to authorize the judge to act in vacation.
§12. Vesting of Title in Applicant.—At any time within three months after the report, or verdict of a jury, if there be one, has been confirmed and ordered to be recorded, the sum so ascertained with legal interest thereon from the date of the report or verdict until payment, may be paid by the applicant to the person entitled thereto or into court; upon such payment, the title to that part of the land so paid for shall be absolutely vested in fee simple in the applicant if it seeks to acquire the fee, except that in case of a public road the right of way only shall be so vested, and if the applicant describe in its petition an estate or interest therein less than a fee, upon payment as aforesaid, such estate and interest as is stated and described in the petition shall vest in the applicant.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 42; 1875, c. 114; 1881, c. 18; 1891, c. 68; 1897, c. 60; 1907, c. 74; 1915, c. 23; Code 1923, c. 42, §18.)
Revisers’ Note.—This embraces the essential portions of §18, c. 42, Code 1923, pertaining to the payment of compensation and the vesting of title. That portion of §18 which gives the right to condemn less than a fee to certain corporations is omitted, because this right is given to all corporations in §8, art. 1 of this chapter. The provision requiring the condemnor to pay taxes upon the entire estate in certain cases when less than a fee is taken is covered in §8, art. 1 of this chapter, as it is not a question of procedure but of substantive law, and the provision as to damages in such cases is covered in §9 of this article. The provision in said §18 as to reports already confirmed is omitted as having served its purpose.
§13. Entry on Land on Payment of Compensation.—After such report has once been made, whether it be set aside, recommitted, or new commissioners appointed, or not, or whether a trial by jury be demanded and had or not, the applicant upon paying into court; the sum ascertained by such report, with legal interest thereon from the date of the report until payment, may, notwithstanding the pendency of further proceedings, enter upon, take and use for the purposes specified in the application, that part of the land and property in respect to which such payment is made, and where such payment has been made and possession taken, or where payment has been made without taking such possession in a pending case, it shall have the same effect as if such payment were made or possession taken, or both, in a case hereafter commenced; and no order shall be made or any injunction awarded by any court or judge to stay it in so doing, unless it be manifest that the applicant is insolvent or that it or its officers, agents or servants, are transcending their authority, or that such interposition is necessary to prevent injury which can not be adequately compensated in damages: Provided, That if the applicant be other than a corporate body politic, before entering, upon or taking possession of such property, it shall enter into bond before the court, or judge thereof in vacation, in a penalty prescribed by the judge, with securities approved by him, conditioned for the payment to the owner of any additional sums which may be awarded against it in subsequent proceedings as additional compensation and damages for the property so taken.
And where, under authority of section ten, article one of this chapter, wood, earth, gravel, shale, stone, water or other material are sought to be taken, impounded or consumed, the applicant, after such report has been made, whether it be set aside, recommitted or new commissioners appointed, or not, or whether a trial by jury be demanded and had, or not, may, upon payment into court as aforesaid of the sum ascertained by the report of such commissioners, notwithstanding the pendency of further proceedings, take, impound or consume such wood, earth, gravel, shale, stone, water or other material; and all the foregoing provisions of this section as to injunction and bond shall be applicable to such case.(Code 1849, c. 56, §13; Code 1860, c. 56, §13; Code 1868, c. 42, §20; 1875, c. 114, §21; Code 1868, c. 42, §20; 1875, c. 114, §21; 1881, c. 18; 1907, c. 74; Code 1923, c. 42, §20.)
Revisers’ Note.—The provisions of this section are taken from §20, c. 42, Code 1923, without material change. The remaining provisions of said §20 are covered in §15 of this article. The proviso is added to comply with §9, art. 3, Const.
Committee’s Note.—The second paragraph is new. It is added to conform to §10, art. 1 of this chapter.
§14. Entry on Land by Corporate Body Politic.—If the applicant be the State of West Virginia, or any political subdivision thereof, on filing its petition as authorized in this article, if the court or judge is satisfied that the purpose for which the land or property is sought to be condemned is a public use for which private property may be appropriated on compensating the owner, the court or judge shall, at the request of the applicant, make an order permitting the applicant at once to enter upon, take possession, appropriate and use the land sought to be condemned for the purposes stated in the petition. The revenues applicable to the payment of any damages or compensation to which the owner is entitled, and which shall be awarded or assessed in his favor, shall be deemed sufficient security and to have been pledged for such payment, and no bond or further security shall be required of the applicant.
If the applicant shall enter upon or take possession of property under the authority of this section, and shall do any work thereon and injure such land or property, it shall not be entitled, without the consent of the defendant, to abandon the proceeding for the condemnation thereof, but the same shall proceed with reasonable dispatch to a finality, and the applicant shall pay to the owner of the land the amount of compensation and damages as finally determined in such proceeding.
Revisers’ Note.—This section is new and supersedes a portion of §138, c. 43, Code 1923. It is intended to facilitate the expeditious construction of public roads. It is thought that the public revenues afford adequate security to the owner for the payment of the compensation and damages to which he is entitled on the appropriation of his property. It would not be equitable to permit the applicant to take possession of property for constructing the proposed work, damage the property and then abandon proceedings, and if it shall exercise the summary right given under this section, it shall pay the amount ultimately determined as just compensation. The rest of said §138 is in §2, art. 12, c. 17.
Committee’s Note.—In the last paragraph the words “without the consent of the defendant” are new.
§15. Alternative Procedure; Bond.—Any business corporation, entitled to exercise the powers of eminent domain under this chapter, may file with its petition a bond for a sufficient amount with good sureties, payable to the owner of the property proposed to be taken to secure to such owner payment for such property and all damages to which he shall be entitled for the taking thereof, and if the owner being sui juris shall appear and make no objection to such bond, the applicant shall be entitled to take possession of the property sought to be condemned, for the purposes stated in the petition. But if objection be made to the form, amount of, or sureties on, such bond, or if the owner cannot be found, or is not sui juris, the court or judge shall fix a day for the hearing of any objections to such bond and of the request of the applicant to approve the same; and at any time after five days’ written notice shall have been given to the owner or to his guardian or committee, if he be not sui juris, and if the owner cannot be found, or his guardian or committee, the owner not being sui juris, then, after five days’ written notice posted upon the land, which notice shall state the time and place for such hearing, the court or the judge shall proceed to hear and determine the matters arising upon such objection and request, and may require evidence as to the sufficiency of the surety or sureties and as to the sufficiency of the amount of the bond, and may, in its or his discretion, require new and additional sureties and a bond for a larger amount and in a more satisfactory form, and when satisfied as to the form, amount and sufficiency of such bond and sureties, and that the purpose for which the property is to be appropriated is a public use for which private property may be taken upon compensating the owner, the court or judge shall approve the bond and make an order permitting the applicant to enter upon, take possession, appropriate and use the land or property sought to be condemned for the purposes stated in the petition. At any time during the subsequent proceedings on such petition, if it shall appear necessary so to do in order to protect the owner and assure unto him the payment of the compensation and damages to which he may be entitled, the court or judge may require the applicant to give a new and additional bond with sureties satisfactory to the court or judge.
Any indemnity company authorized to transact business in the State of West Virginia shall be deemed a good and sufficient surety on any bond required under this section.
If the applicant shall enter upon or take possession of the property under the provisions of this section, and shall do any work thereon, or cause any injury or damage to such property, it shall not thereafter be entitled, without the consent of the defendant, to abandon the proceeding for the condemnation thereof, but the same shall proceed with reasonable dispatch to a finality and the applicant shall pay to the owner of the land the amount of the compensation and damages as finally determined in such proceedings.(1907, c. 74; Code 1923. c. 42, §20.)
Revisers’ Note.—This section is a modification of the latter part of §20, c. 42, Code 1923. Companies other than oil and gas companies are permitted to secure prompt possession of property sought to be condemned, upon securing unto the owner payment of just compensation and all damages. After taking possession of the property and causing any damages, the applicant is not permitted to abandon the proceeding to condemn for the reasons stated in the note to the preceding section. Prior statutes permitted a party to take possession before starting proceedings to condemn, but as the petition may be filed in vacation this right is not deemed necessary and said §20 is modified accordingly. An indemnity company is substituted for a trust company as an authorized surety, in view of the provisions of c. 31 requiring all trust companies to be banking institutions. The rest of said §20 is covered in §13 of this article.
Committee’s Note.—In the last paragraph the words “without the consent of the defendant” are new.
§16. Increase or Decrease in Award After Payment Into Court; Costs.—When, after such payment into court as is mentioned in section thirteen of this article, a subsequent report is made which is confirmed and ordered to be recorded, or the verdict of a jury is found, if the sum ascertained by such subsequent report or verdict exceed what was so paid, and the applicant fail to pay the same, judgment shall be given against it for the amount of such excess, with legal interest thereon from the date of such subsequent report or verdict until payment; but if what was so paid exceeds the sum ascertained by such subsequent report or verdict, the excess shall be repaid to the applicant out of the fund in court, or by the persons to whom the same shall have been paid. If the sum ascertained by such subsequent report or verdict do not exceed the sum ascertained by the former report, the party on whose motion the former report was set aside, recommitted, or other commissioners appointed, or trial by jury demanded, if he be a defendant therein, shall pay the costs occasioned by such motion, unless such former report was set aside, recommitted or other commissioners appointed on some other ground than that of insufficiency of compensation.
If the applicant has stated in his application the sum of money which he is ready to pay to the owners for any parcel of land proposed to be taken, and it appear by a report confirmed and ordered to be recorded, or by a verdict of a jury, that he is entitled to take such parcel for the purpose mentioned in his application without paying any greater compensation therefor, he shall be adjudged his costs in respect to such parcel, out of the compensation to be paid therefor to the owners.
In cases not otherwise provided for, the applicant shall pay the costs of the proceedings.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 42, §§21, 24, 25; 1875, c. 114, §§22, 25, 26; 1881, c. 18, §§21, 24, 25; Code 1923, c. 42, §§21, 24, 25.)
Committee’s Note.—The changes made by the revisers in §21, c. 42, Code 1923, are eliminated and the section restored substantially to its original form. Sections 24 and 25, c. 42, Code 1923, which were omitted by the revisers as in conflict with said §21 in its amended form, are restored as the third and fourth paragraphs, respectively, of the above section.
§17. Effect of Payment of Such Excess.—When judgment is rendered against the applicant, pursuant to the preceding section, for any excess ascertained by such subsequent report or verdict, with interest, the applicant shall thereafter have no right to the possession of the land until the judgment is satisfied; but from the time of such satisfaction by the payment of the money to the person entitled thereto, or into court, or from the time of the confirmation of the subsequent report or verdict, if no additional compensation be thereby ascertained, the title to that part of the land for which such compensation has been made shall be vested as provided in section twelve of this article.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 42, §22; 1875, c. 114, §23; 1881, c. 18; 1891, c. 68; Code 1923, c. 42, §22.)
Revisers’ Note.—This is the substance of §22, c. 42, Code 1923, with the exception at the end omitted as unnecessary in view of the provisions of §12 of this article.
§18. Disposition of Money Paid Into Court; Payment to Clerk Instead of Court.—To enable the court to dispose properly of any money paid into court, it may have inquiry made by a commissioner to ascertain what persons are entitled thereto, and in what proportions, and may direct publication to be made requiring all who are interested to appear before the commissioner, that their respective claims may be determined. Upon report of the commissioner, or from the evidence before it without such report, the court shall order the money paid to the persons entitled thereto.
Payment of an award or judgment under any of the provisions of this chapter may be made to the clerk of the court in which such proceeding is had, and such payment shall be deemed to be a payment into court. The clerk to whom payment is so made, together with the surety on his official bond, shall be liable therefor, as for other moneys collected by him by virtue of his office.(Code 1849, c. 56; Code 1860, c. 56; Code 1868, c. 42, §23; 1875, c. 114; 1881, c. 18; Code 1923, c. 42, §23.)
Revisers’ Note.—This section contains the substance of §23, c. 42, Code 1923, specifically directing the payment of the moneys mentioned in the section to the persons entitled, rather than in the somewhat wide discretion of the court under the prior statutes.
Committee’s Note.—The last paragraph of the section is new.
§19. Compensation of Commissioners and Jurors.—The commissioners and jurors shall receive the same compensation fixed by law for jurors in felony cases, to be taxed as a part of the costs of the proceeding.(Code 1868, c. 24, §26; 1875, c. 114; 1881, c. 18; Code 1923, c. 42, §26.)
Revisers’ Note.—This section is a substitute for §26, c. 42, Code 1923.
§20. Recordation of Certified Copy of Condemnation Order.—When land or an estate or interest therein is taken or appropriated under the provisions of this chapter, the clerk of the court in which such proceeding is had shall, at the cost of the applicant, file and record with the clerk of the county court of each county wherein such land is, a certified copy of the order or orders of appropriation, and from the time of the filing thereof as aforesaid, the applicant shall be deemed a purchaser of the land or the estate or interest therein so taken or appropriated, with like effect as if the record owner, if made a party to such proceeding, had executed to such applicant a deed for the land or the estate or interest therein so taken or appropriated. The clerk shall record and index the same in the manner provided in section seven, article four, chapter fifty-one of this Code.
Revisers’ Note.—This section is new and is substituted for the last provision contained in §9, c. 42, Code 1923, which provided that a copy of the order which may be acknowledged for record should be recorded in the proper office for recording deeds.
Committee’s Note.—This section is substituted for the section drafted by the revisers. It conforms to the provisions of §7, art. 4, c. 51.