65 W. Va. 185 | W. Va. | 1909
This is a writ of error, to the final judgment for plaintiff in the circuit court of Mason county, in condemnation proceedings, against Mary M. Thornburg and Newton Long. At various stages of the proceedings in the court below, the defendants challenged the right of petitioner to take their land for public road purposes, by motions to quash the petition, and the several' orders thereon, and interposed no other defense or defenses by plea, answer or otherwise. Treating the motions to quash and to dismiss, overruled, as demurrers to the petition, the defendants must be treated as having confessed the truth of the matters alleged, and as challenging the sufflcienc)'- thereof. The sufficiency of the petition therefore presents practically the only question of merit in the case.
Is the petition sufficient ? Chapter 42 of the Code is controlling on this subject, and section 5 thereof, section 1365, Code 1906, prescribes .what the application or petition shall contain. It provides, that the application must be in writing, describe with reasonable certainty the real estate proposed to -be taken, and state, as far as the applicant knows, the names of the owners of each parcel; the nature of their respective interests; the liens thereon, by judgment, deed of trust or otherwise; and the conflicting claims thereto, if any; the nature and amount of such
The petition in this case, alleges that the petitioner proposes to build, construct and maintain a public road for the use of the public in Clendenin and Arbuckle Districts, Mason county, West "Virginia; that it desires to proceed with the construction of said road through the lands of defendants and others; that defendants are joint owners of one of said tracts, particularly describing the same by metes and bounds as a strip thirty feet in width from the beginning, and as containing one hundred and three square rods, and exhibits a survey and plat thereof. It is alleged also that petitioner intends to use the lamLpre-scribed for the purpose of constructing and maintaining a road for the use of the public, and that said land is necessary for that purpose; that the defendants are joint owners in fee of the land sought to be condemned; that Thornburg resides in Mason county, and Long in the State of Missouri; that petitioner had been unable to agree with the owners as to the amount of compensation to be paid them for the land proposed to be taken, and that they would not agree to a fair price therefor; that notice had been given them of petitioner’s intention to file said petition and make said application, evidencing the same by said notice and personal service thereof on Thornburg, and publication as to Long; and the petition contained a prayer for the appointment of commissioners to ascertain a just compensation to defendants for said land; that such other proceedings might be had therein in conformity with law as might be necessary, and that upon payment of the compensation petitioner might take the land, establish a road, and build and maintain the same for the use of the public; and for other and general relief. It thus appears that the petition is complete in every essential allegation required by said section 5, and that nothing required either by the letter or spirit thereof has been omitted.
But the contention here is that the petition is fatally defective in failing to allege and show that the several proceedings,.prescribed by Code, sections 35-38, chapter 43, sections 1426-1429, Code 1906, had been taken in said county court, and that it had been determined therein by said petitioner to undertake the pro
But, in addition to what appears in the petition, the final judgment below recites as a fact, that it was made to appear that the matter of establishing said road had been proceeded with in said county court, and that the prosecuting attorney had been required to institute and prosecute this proceeding, to condemn a right of way therefor, which the county court had undertaken to establish through the lands of the defendants; and that the papers in said proceedings in the county court, together with the orders made by it in relation thereto, had been certified to the court before the appointment of the commissioner to assess the damages to said defendants, and that said papers had been filed by the clerk in this proceeding. It is said, however, that this recital in the final judgment is in conflict with defendants bill of exceptions number two, to the original order on said petition, and on their motion to quash, which recites among other things that “no other documentary or other evidence except the petition and exhibits therewith was offered, or introduced upon the hearing of said cause.” While the court below, and this Court, is bound by that recital in the bill of exceptions, we do not think it materially in conflict with the recital in the final judgment. While we must say from the bill of exceptions that the court, upon the motion to quash, and the appointment of commissioners then heard the case solely upon the petition and the exhibits therewith, and that though the proceedings in the county court may have been previously certified and filed by the clerk as recited in the final judgment, they were not then read and considered, yet we must treat it as a fact that the said proceedings had been so certified and filed. True those proceedings are
Another point made, and which we think without merit, is that looking to proceedings in the county court, copied in the record, it appears that the proceedings there were at a special session, noticed for Aug. 3,1907, and continued to Aug. 7, 1907; and that neither the order of Aug. 3, nor that of Aug. 7, show that notice had been given of the time and purpose of said special session. We find from a certified copy of the order of Aug. 3, 1907, filed in the record, that both the time and the purposes of said sjoecial session, are fully shown; one of the purposes being “to further consider the establishment of | a change 'in the public road, known as the Kanawha Biver road, in the Districts of Ar-buckle and Clendenin, upon the petition of B. M. Sterrett and others;” and that on.that day the defendant Thornburg appeared by counsel, and moved the, court to disaniss^he case, to quash the summons and return, and also to quash the'order appointing viewers, and the report of,the viewers, etc., and that the case was then continued until the following Wednesday morning. The record, we think, therefore, contradicts this point of error.
Another ¡joint of error in reference to the proceedings in the county court is, that a petition to alter I a county road is in effect a petition to establish a road, and also to discontinue another, and that, before it can be finally acted upon, notice must not only, be given to the parties whose lands are proposed to be taken, but also that three weeks public notice should be given as required by statute to discontinue the old road, and we are cited to Conrad v. County of Lewis, 10 W. Va. 784. Such was indeed the law at the time of that decision, but is not the present law of section 30, chapter 43, since amended. County Court v. Boreman, 34 W. Va. 87.
Seeing no substantial error in the judgment below we affirm it.
Affirmed.