121 S.E. 99 | W. Va. | 1924
Plaintiff on October 11, 1922, obtained an injunction, restraining the county court of Roane County from entering upon his lands and constructing a county-district road thereon "until just compensation therefor shall have been paid or secured to be paid" to the plaintiff. The injunction was awarded in vacation and also dissolved in vacation, by an order entered December 2, 1922. From the order dissolving the injunction, plaintiff appeals. *342
There are three grounds of error assigned:
1. That the court had no authority to dissolve the injunction in vacation.
2. That the record shows that the county court in establishing the road is acting capriciously and fraudulently.
3. That the statute under which it is proceeding, section 138, chapter
1. Can a circuit judge in vacation dissolve an injunction in a case like this? It was held in Logan v. Ballard,
We can not accede to the view urged by defendant's counsel that a circuit judge has authority to enter an order in vacation dissolving an injunction under his general powers; on the contrary, his authority to do so must be conferred by statute. "In the absence of statute so providing, no decree of any kind can be entered in the vacation of the court." 1 Hogg, Equity Procedure (Carlin's Ed.) § 600, and cases there cited. As pointed out by Judge HAYMOND in Hayzlett v. McMillan,
The act reads:
"The judge of a circuit court in which a case is pending wherein an injunction is awarded, may, in vacation, dissolve such injunction, after reasonable notice to the adverse party. His order for dissolution shall be directed to the clerk of said court, who shall record the same in his order book."
This statute seems never to have found a place in the various codes compiled since its passage. It is designated as section 12-a of chapter 159 in Kelly's Rev. Statutes, (1879), but is omitted from Warth's Codes of 1884, 1887, 1891, 1899; West Publishing Company Code, 1906; Hogg's Code, 1913; Barnes' Codes, 1916, 1918 and 1923. By chapter
2. Can we say that the county court is acting capriciously and fraudulently? Plaintiff avers that his farm, through which the proposed road is to be constructed, consists of 256 1/2 acres, lying along McKown's Creek; that it is a fine grazing farm, and is useful only for that purpose; that plaintiff's only source of water for his stock is in McKown's Creek; that the proposed road will entirely cut off the main body of the farm from the creek and thereby destroy the value of the farm for grazing purposes; that the road can be constructed on the opposite side of the creek on a more suitable location and for less money and that it will serve the public better than the proposed road; that by locating it where proposed, a neighbor, John Z. Neal, will be cut off entirely from the public road, whereas, if it be located on the opposite side, he will have access to it; that one, G. W. Canterbury, who owns a farm adjoining plaintiff's land and Neal's farm, conceived the plan of having the road relocated so as to cut off the Neal farm from the public road so that he might buy it at less than its actual value and that this fact was known to the county court before the relocation was made; that Canterbury and others petitioned the court on February 23, 1922, to make the relocation, which begins near the plaintiff's residence and extends up McKown's Creek on the north side of the Canterbury residence, about half a mile; that the court then ordered the relocation to be resurveyed and appointed Canterbury and Fleshman, two of the petitioners, with C. A. Lynch and L. B. Greathouse, county surveyor, to survey and relocate the road; these viewers reported, giving the direction and location, and showing it would extend through plaintiff's farm 800 feet and through Canterbury's farm 1211 1/2 feet; that plaintiff's land would have to be condemned, but Canterbruy would give a free right of way; that the cost of the improvement would be about $750. This report does not appear to have been recorded until October 6, 1922, although the court gave plaintiff notice under date of May 3, 1922, that the viewers *345 had been appointed, the court had undertaken the improvement, and that the viewers were authorized to go upon the proposed relocation, further notifying plaintiff not to interfere under penalty of the law.
Upon recording the report, the court approved it, stating that "in order to secure better grades and alignment of said road and to avoid crossing the creek and keep out of it, it was necessary to relocate said road upon the property of" plaintiff and G. W. Canterbury. The order relocates the road in accord with the report, and further provides that "there is to be a bridge at or near where this road intersects with the State road of thirty to fifty feet long", and that the property holders be summoned to appear November 20, 1922, to show cause why the road should not be relocated on their property, and that the notice be published for two weeks in two designated newspapers. This notice was served upon plaintiff on October 7th. On October 6, 1922, a further order was entered by the county court, directing that McGibson and Canterbury be served with notice of the court's intention to relocate the road, and C. L. Burdette was appointed and directed to go upon the road and use due diligence in completing the same, "beginning October 16th, 1922".
One notice served upon plaintiff informed him that the county court would on October 16th, 1922, enter upon the land to change and improve the road; the other that he should appear before the court on November 20, 1922, to show cause why the work should not be undertaken.
On October 11, 1922, plaintiff obtained a temporary injunction, restraining the defendant from entering upon his lands to construct the road, setting up the aforesaid matters; defendant answered the bill, and states that the date of November 20th, 1922, fixed in the aforesaid notice, was inserted therein by mistake; that inferentially, at least, it should have been October 16, 1922; that the members of the court, acting as a committee of its own body, on October 6, 1922, went upon the ground and viewed the change and location of the proposed road; that by mistake, the committee of the court members, failed to make their report, until October 25, 1922, when it was made and filed and *346
another order was made undertaking the proposed work and directing the plaintiff to appear before the court on November 1, 1922, to show cause why the road should not be so established, and to show what compensation he was entitled to; after full hearing thereon, on November 5th, 1922, the change was ordered and they failing to agree upon the compensation, it was further ordered that within "sixty days after said road is completed that the amount of compensation, if any" to be paid him should be determined as provided in the latter part of section 138, chapter
We have stated at length the matters relied on by plaintiff. It is sufficient to say that defendant denies all the material allegations of plaintiff's bill. That the change will seriously damage plaintiff's farm clearly appears; that the underpassway to be provided by the court for plaintiff's stock will in a measure diminish this damage is apparent. But plaintiff holds his lands subject to public right. If damaged, the public must pay for it. That the location was inspired by Canterbury to enable him to obtain the Neal farm at a low price could not aid plaintiff's case. If Neal is thereby injured that is no legal injury to plaintiff. Ours is a representative government; under it there has been delegated to the county court the power to establish and maintain roads; to carry out that power it must necessarily exercise its judgment. Private citizens can not substitute their judgment for that of the county court. To permit them to do so would in effect reverse and set aside the orderly processes of government and take back the authority entrusted to the court by the deliberate vote of the people. The court, upon its own deliberate judgment, has made the re-location, as it is authorized to do, and we can not say it is acting fraudulently toward the plaintiff or the public.
3. The county court elected to condemn plaintiff's property under the second method provided for in section 138, chapter
The validity of this statute is attacked on four grounds: (1) that it operates inequitably as between the owner whose land is taken and other land owners whose lands are not taken; (2) that it does not provide for certainty of compensation within a reasonable time after appropriation of the land; (3) that it takes the owner's land without due process of law; and (4) that no proper method of appeal to the circuit court from the assessment by the five commissioners is provided.
The first objection is not well founded. While the statute says that the commissioners shall "assess the damages and benefits, taking into consideration the benefits accruing to the property and the damages to it sustained", we think the term "benefits" means "peculiar benefits" as defined in the general law of condemnation proceedings. If an appeal from the commissioners' assessment is taken to the circuit court, the trial is to be had there according to the provisions of section 14, chapter 42, Code, where peculiar benefits only are to be considered; general benefits are there excluded. If they are to be excluded by the circuit court, they likewise should be excluded by the commissioners.
The remaining objections may be considered together. Section 9 of Article 3 of the Constitution provides:
"Private property shall not be taken or damaged for public use, without just compensation; nor shall the *348 same be taken by any company, incorporated for the purposes of internal improvement, until just compensation shall have been paid, or secured to be paid, to the owner; and when private property shall be taken, or damaged, for public use, or for the use of such corporation, the compensation to the owner shall be ascertained in such manner as may be prescribed by general law; provided, that when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders."
It will be observed that this provision covers two classes of cases, one where the property is taken or damaged for public use by the state or any of its subdivisions, and the other when it is taken by any company incorporated for purposes of internal improvement. In the latter case it can not be taken until just compensation shall have been paid or secured to be paid.
But where land is taken or damaged for public use by the state or by any of its sub-divisions, under state authority, the constitution is silent as to time of payment; it merely says that the compensation shall be ascertained in such manner as may be prescribed by general law. In Keystone Bridge Company
v. Summers,
But the matter does not end here. Since the entry of the decree and the award of the appeal, the Legislature has amended the statute, chapter
The constitutionality of the amendment does not appear to be questioned in this case; no such suggestion is made in brief of counsel. Upon such an important matter we should not pass unless compelled to do so; but the decree to be entered here does require us to consider its validity. If the amended statute is invalid, then plaintiff is entitled to have *350
the injunction perpetuated until the defendant shall have taken proper steps to condemn his lands. The amendment does not provide for payment in advance of the taking; but it does provide a definite time in which the county court must start proceedings to ascertain plaintiff's compensation. Sixty days is certainly within a reasonable time. It does not, however, in terms, give the land owner any right to initiate proceedings. There are many holdings to the effect that under such circumstances, the landowner may by mandamus compel the county court to take the necessary steps, as in this instance to petition the circuit court to appoint commissioners.McDowell v. Asheville,
But as the parties are in a court of equity, and as the county court notified the plaintiff of the proposed relocation, a hearing was had thereon, and an order duly entered relocating the road, though made after the injunction was awarded, we think the injunction should now be perpetuated until the county court shall have filed its petition with the circuit court as required by the amended statute, praying for the appointment of commissioners, instead of until compensation is made as the injunction awarded read. To this extent the restraining order should be modified. In this connection we think it proper to state that as we interpret the amended statute, whenever the county court shall have once entered its order establishing the road and appropriating the land for that purpose, then, since under the statute the owner can not prevent the county court from proceeding with the work, the entry has begun, whether actual entry by way of construction shall have been made or not. To permit the court to establish a road on paper, and thereby put it in its power to prevent the owner from using his land and at the same time keep him out of his compensation therefor on the ground that the court had not made any actual use of the land would be manifestly unfair. As stated by Judge Cooley: *351
"While the owner is not to be disseized until compensation is provided, neither, on the other hand, when the public authorities have taken such steps as finally to settle upon the appropriation, ought he to be left in a state of uncertainty, and compelled to wait for compensation until some future time, when they may see fit to use his land. The land should be either his or he should be paid for it. Whenever, therefore, the necessary steps have been taken on the part of the public to select the property to be taken, locate the public work and declare the appropriation, the owner becomes absolutely entitled to compensation, whether the public proceed at once to occupy the property or not. If a street is legally established over the land of an individual, he is entitled to demand payment of his damages, without waiting for the street to be opened." Cooley's Const. Lim. (7th. ed.) p. 818, and cases cited.
Of course, this has no application to condemnation of lands under our general statute, chapter 42, Code.
We will therefore reverse the order dissolving the injunction, and modify the restraining order as above indicated, perpetuating the injunction until such time as the county court shall petition the circuit court to appoint commissioners to fix plaintiff's compensation.
Decree reversed, original order modified, and as modified affirmed.
Reversed; and original order modified and affirmed.