70 W. Va. 157 | W. Va. | 1911
Plaintiff, alleging its right to construct, maintain and operate a pipe line on, through and upon the lands of defendant and others, and to take by condemnation such lands as may reasonably be necessary for the purpose of laying therein suitable pipes and' constructing thereon suitable telephone or telegraph lines for the successful and proper operation thereof, declares in its petition its purpose to take, not an absolute fee simple therein, but such an interest in the lands of defendant and others, as under the statute and laws of this state it has the right to take, namely, the right or right of way to lay such pipe lines and to construct such necessary telephone and telegraph lines on and through said lands as may be necessary for the proper conduct of its business, and to this end to erect poles thereon and to have the right of ingress and egress for the purpose of constructing, maintaining and repairing and otherwise fully operating said pipe lines.
The commissioners reported, that in their opinion seven hundred dollars would be a just compensation to defendant for the interest which the petitioner proposed to take in his land. Their report was excepted to by both parties, and each demanded that the question of compensation to the land owner for the real estate proposed to be taken, as well as damages to the residue thereof, beyond the peculiar benefits which may be derived in respect to such residue from the wrork to be constructed, be submitted to a jury of twelve free holders; and on the trial -the jury impanelled were duly swo.rn “to well and truly ascertain what will be a just compensation for so much of the real estate as is proposed to be taken by the applicant in this case, as well as for the damages, if any, to the residue of said real estate beyond the peculiar benefits, if any, 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 the applicant is
On the trial the jury found for defendant damages to the amount of fourteen hundred dollars, and for which the court below gave him judgment.
By objection to the form of the issue and to the oath administered to the jury; by.exceptions and objections to certain parts of the evidence of defendants’ witnesses, and by instructions proposed to the jury, which were rejected by the court, all preserved to it on the record by sundry bills of exceptions, defendant has presented, as one of the principal questions for 'decision here, whether under the statute laws and constitution of this state, a land owner whose land is to be condemned for public use, and less than a fee simple is to be taken, is entitled to “damages to the residue of the tract beyond the peculiar benefits to be derived, in respect to such residue from the work to be constructed.” It is contended in argument that that provision of our statute, section 14 of chapter 42, Code 1906, giving such damages, is applicable only where a fee simple estate is condemned, and not where less than a fee is taken. This argument is predicated on a comparison of that portion of said section 14, giving such damages, with that portion of section 18 of said chapter, providing that: “When less than a fee is taken, in assessing damages, the commissioners and jury shall take into consideration the actual damage that is done or that may be done to the fee by such construction.” It is contended that “damages * * * to the fee” authorized by this statute are limited, by proper construction, to the fee in that portion of the land, in, upon, under or over which the right of way or easement less than a fee is condemned, and that no matter what damages the owner may actually sustain'to the residue of his land or the fee in the whole tract, the statute awards him no damages therefor, and that none can lawfully be assessed. This argument is attempted to be further fortified by reference to that provision of said section 14, relating to the manner of assessing damages by commissioners, where the fee simple is to be taken, which rule section 17 of said chapter makes applicable on the trial of an issue before a jury, which is: “Shall ascer
A preceding and pertinent clause of said section 18, not noticed by counsel for petitioner is: “A * * * company organized for the purpose of transporting * * * natural gas * * * by means of pipes or otherwise, and' desiring to construct its pipe lines, may as to all or any part of the real estate sought to be taken for that purpose describe, in its application an estate or interest therein less than a fee, and with respect to the same may proceed as in other eases; and upon payment therefor, such estate and interest as is stated and described in the application shall vest in the applicant.” Section 18, chapter 42, Code Supph, 1900. Then follows the clause relied on by plaintiff’s counsel. The clause just quoted and by its words, “proceed as in other cases,” clearly refers to sections 14 and 18, and to the rule of section 14 for measuring damages; and requires that that rule shall apply and "in the same way, when less than a fee is taken as when the fee is condemned, and that damages less special benefits to the residue, including the fee in the tract covered by the right of way or easement actually taken shall also be added. Unless we give these statutes this construction, as counsel for defendant suggest, we would be obliged to declare the statutes void for infraction of that provision of the constitution sajdng: “Private property shall not be taken or damaged for public use without just compensation.”
Not only is this construction required by reason, but author
Petitioner next complains of the rejection of its instruction number eight. It proposes to tell the jury in substance, that a -witness who only knew defendants’ land by having gone over
The next question to be considered is, was the verdict excessive ? On the whole evidence before the jury we think it clearly was. The commissioners who had gone upon the land awarded defendant but seven hundred dollars. The highest price put upon the land covered by the proposed right of way, mostly through bottom land, was one hundred dollars per acre. The boundary covered thereby is but. 4.38 acres. The aggregate assessed value of the three tracts constituting defendant’s farm is $3,570.00. The farm is largely hill land. All witnesses for
Beversed and Remanded.