199 S.E. 372 | W. Va. | 1938
The State Road Commission, in the name of the State of West Virginia, filed its petition in the Circuit Court of Taylor County against Mary J. Painter praying for the appointment of commissioners to ascertain a just compensation for certain land sought to be condemned for road purposes. Mary J. Painter having died pending the litigation, the case was revived in the name of Clarence A. Painter, only heir at law (plaintiff in error) and Clarence A. Painter, administrator, etc.
On March 7, 1936, the circuit judge, in the vacation of the court, entered an order appointing commissioners, which order gave to the condemnor, its agents and employees the right, from the date thereof, to enter upon the land sought to be condemned. The commissioners, on March 24, 1936, went upon the land and reported the sum of $1100.00 as a just compensation. Exceptions were taken to this report and a jury trial had. On February 8, 1938, the jury found in favor of the condemnee in the amount of $1700.00. The final order, entered on February 25, 1938, rendered judgment thereon, with interest from February 8, 1938. It discloses that the condemnee moved that judgment be entered in his favor in the amount of the jury verdict with interest thereon *488 from March 24, 1936, the date of the commissioners' report, until paid. It also contains a recital that the condemnor took possession of said land about two weeks prior to the date of the commissioners' report.
The sole question presented here is the refusal of the trial court to include in the judgment interest from March 24, 1936. The attorney general, in support of the circuit court's ruling, proceeds upon the theory that interest cannot run against the State. The authorities cited deal with general indebtedness and tort liability. Shaw v. Monongahela Railway Co.,
Constitutional grounds alone prompted this Court, in the case of Simms v. Dillon,
The real difficulty which confronts the plaintiff in error in this case is procedural. The record discloses, as shown by the final order, that plaintiff in error introduced uncontradicted evidence to the effect that actual entry was made sometime prior to March 24, 1936. That being so, how do we know that it was not taken into consideration by the jury in arriving at its verdict of $1,700.00? If the record was silent as to the time of the actual taking, or if, by instructions, the trial court had directed the jury not to consider the matter of interest, the rule in the Simms case clearly could be applied in the entry of the judgment order. Here, we have good reason to presume that the jury considered all of the elements of damage before it, and in doing so, took into consideration the fact that the plaintiff in error was dispossessed of his property. Where, in a condemnation proceeding, the property is actually taken before the verdict, the trial court, applying the rule of the Simms case, would have the right to add interest to the amount of the verdict, provided that the record discloses that the jury allowed no interest or where the court, by instruction, reserved the question of interest until after the verdict, and the dates between which interest should run are so reasonably ascertainable from the record that the court could make the computation and render judgment for the aggregate amount of the verdict and interest. St. Louis, El Reno Western Railway Company v. Oliver,
For the foregoing reasons, we affirm the judgment complained of.
Affirmed.