7 W. Va. 693 | W. Va. | 1874
This is a proceeding of the -plaintiff against the defendant to condemn a part of the defendant Tyree^s land for the purposes and uses of plaintiff in constructing, maintaining and using its Railroad. The proceedings were had under the forty-second chapter of the Code of this State. It is agreed by the parties that the application by the plaintiff was duly and properly made according to the statute; that the notice was duly served on the defendant; that the commissioners were regularly appointed according to the provisions of section eleven of chapter forty-two of the Code; that the commissioners were duly sworn, and a certificate of their oath returned with their report, and that said Tyree was duly notified of the time and place of the meeting of the commissioners on the land proposed to be taken, and that he was present with them at the time of the valuation. The report of the commissioners is, on its face, in substance, as well as form, in accordance with the provisions of the fourteenth section of chapter forty-two of the Code and is signed by the five commissioners. The
“Because the commissioners, in making their assessment of damages, adopted an erroneous principle which misled them. They assessed the then value of the land without reference to any enhanced value which the prospect of the road had imparted to that land, in common with all the other lands adjoining and contiguous to the line of the Road.” The case was on the 3rd day of September, 1873, heard by the court on the report, and the exceptions filed thereto, and the facts as agreed by the parties. Among the facts agreed are those numbered seventh, eighth and ninth, and they are as follows:
“Seventh. That the commissioners, in ascertaining a just compensation to the defendant, for the land and damages mentioned in their report, valued said land without reference to any enhancement of its exchangeable value existing, on the day of the valuation, by the commissioners, and given to it by the contemplated building of said Railroad, butestimated it at its actual value at the time without reference to any enhanced value given to said land by reason of the prospective construction of the applicant’s Railroad through said land.”
“Eighth. That if said commissioners had estimated said land according to the enhanced value at the time, based on the prospective building of plaintiff’s Railroad, through said land, which enhanced value was common to other lands along the said road, the assessment would have been considerably larger.”
“Ninth. That the said Railroad was not built at the time of said assessment along the line, and at that point, but was in process of construction along the line and at that point.”
The court, on the facts agreed, aforesaid, sustained said third exception to the report, and gave no opinion
The fourteenth section of the forty-second chapter of the Code provides' that as to each tract, the commissioners after viewing the same 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, 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, for the purpose to which the land to be taken is to be appropriated and make report, &c. This section of the Code so far as I have quoted from it is taken from the tenth section of the fifty-sixth chapter of the code of Virginia of 1860, which was in force in this State so far as relates to this subject, as now recollected, up to the time the Code o± this State took effect, and it is intended to be in accordance with the principles decided by the Court of Appeals of Virginia in 1838, in the case of the James River and Kanawha Company v. Turner, 9 Leigh. 313, so far as the principles there decided apply thereto. Although that decision was made by less than a full court, and by a majority of those present, its correctness has since been recognized by the same court. See Muire v. Falconer 10 Gratt., 17 and 18. The general legislation in Virginia and this State upon the subject has, so far as I am advised, conformed to the principles held in the case cited in 9 Leigh. The charter of the J. K.. and K. Company provided, that the assessors for ascertaining damages to proprietors of lands required for the Company’s canal and improvement, should take into consideration the quantity and quality of the land to be
The facts agreed in the case under consideration fairly construed certainly mean that the commissioners did assess or ascertain the actual value oi the defendant’s land at .the time when taken, without reference to any enhanced value given to the land in common with other land owners along the line of the road by reason of the prospective construction of the plaintiff’s Nailroad through the land. Said fourteenth section of the Code evidently means that the commissioners shall ascertain what will be a just compensation to the owner for so much thereof as is taken, at the time it is taken. The question here arises, what is a just compensation for the land taken in the sense and meaning of the law and constitution ? If the owner of the land proposed to be taken gets its actual value at the time when taken by the railroad compa
It appears by the record, that on the 4th day of September, 1878, the Railroad Company paid into said circuit court $96, being the amount reported by the commissioners in this case, for the land taken, including interest thereon, from the date of the report to the time of payment.
For these reasons, the decision and judgment of the circuit court of said county of Fayette, setting aside and recommitting the said report of the commissioners, must be reversed and annulled, and the appellant recover its costs here against the appellee, William Tyree. And this Court,.
JUDGMENT REVERSED, AND CORRECTED IN APPELLATE Court.