44 W. Va. 71 | W. Va. | 1897
The board of education of Cabin Creek district appeals from a judgment of the circuit court of Kanawha county,
Outside of a few general statements, the only evidence touching the damag-'es involved was the testimony of W. H. Edwards, at the time of the trial and for ten years previous thereto, president of the board, who testified as follows in answer to questions propounded: “It has ruined it as a school lot. It is good for nothing for school purposes. It takes the playground from the children, which is the thing the children ought to have; and it exposes them to the peril of their lives when they go after water; and they can not keep them off the railroad, and either way you can not see a train coming fifty feet. * * * It is ruined for school property. As a school property, it is worth nothing. That is all I can say. The property is worth about $¡>1,000, — well, about $850, lot and all. We could not replace that house under $700, and it is all about $900. We are not allowed to use it for anything but school purposes.” The jury, on the evidence, found a verdict for eight hundred dollars, which was about fifty dollars more than it had cost the board. Counsel say that a large part of this was interest estimated from the time the damages first accrued. They forget that, notwithstanding' their last witness testified that “as a school property it is worth nothing,” they show that the board continued to occupy and use it for school purposes down even to the present time; that the school was continued to be taught therein, although the presence of the railroad and its trains caused annoyance to the teachers and children. Nor has the question of exemplary damages anything to do with this case. This was not the taking of private property for public use, but it was the taking of public property for another public use. This being public property, the public had the right, through the company, its creature, endowed with its franchises, though for private gain, to take by purchase or condemnation. The mere fact that the company took posession thereof with the tacit consent
Affirmed.