State v. Darnall

Kenna, President: These two condemnation proceedings were brought in the Circuit Court of Gilmer County by the State of West Virginia against R. A. Darnall and others in the one, and against Charles W. Knight and others in the other, for the purpose of acquiring a right-of-way from the mouth of Copen Run near Gilmer Station upon the Little Kanawha River going up the right hand side of the creek toward Browder, a distance of a little over a mile to a point just beyond the Gilmer-Braxton County line. The purpose is to relocate for that distance an unnumbered secondary state highway formerly going up Copen Run on the left side of the stream. The original location of the highway was flooded and the road washed out in at least two points in August, 1943, by a so called “flash flood”. The proposed relocation is all above the high water mark of the 1943 flood and is approved by the Federal Public Roads Administration. The original location was the first submitted to that Administration by the State Road Commissioner, that body haying charge of the allocation of Federal funds covering the cost of construction. The Administration’s engineers disapproved the original location, after which, at their suggestion, the Road Commissioner submitted the relocation involved in this proceeding, which they have approved. Darnall and Knight both appeared, filed answers, and resisted condemnation of their land through which the relocation passes, alleging that the State Road Commissioner in adopting that location acted arbitrarily, capriciously and in bad faith. After the taking of testimony and upon final submission the Circuit Court of Gilmer County sustained the contention of the two defendants *161 and dismissed the State’s petition. The State is the plaintiff in error in both proceedings submitted together here. The testimony taken relates'mainly to conjectural future damages. The defendants testify that they now own and operate a coal property on the Little Kanawha River near the mouth of Copen Run locally known as the “John T.” where they have a tipple and side track. They say that owing to the financial loss they suffered from the 1943 flood it is their plan to sell the “John T.” operation and with the proceeds to construct a tipple and side track on the site of the new location of the highway on the right side of Copen Run for the loading of coal they intend to mine and also for the loading of strip mined coal from other operations in Gilmer County, the prospective purchasers of “John T.” having assured them that they will load only coal mined by themselves. No contract of sale is shown. The prospective purchasers or their representative do not testify concerning either the possible sale or the possible method of operating in case it actually takes place. This, we believe, relates to the question of damages only and is not now before the Court. Even in cases where the question of damages, as distinguished from the right to condemn, is considered the matters of merely possible future uses or of past or future profits from business conducted upon the property taken, are held to be irrelevant. Gauley & Eastern Railway Company v. C. A. Conley, et al., 84 W. Va. 489, 100 S. E. 290, 7 A. L. R. 157; Louisiana Railway & Navigation Company v. Baton Rouge Brickyard, 136 La. 833, 67 So. 922, L. R. A. 1917 A. 402, 412. We cannot say that the defendants have shown by a clear preponderance that the resultant present injury to their property is so plainly out of proportion to the nature of the project and to the public service intended as to show a capricious or arbitrary course of conduct on the part of the State Road Commissioner. This, at least, they would *162 be required to do before the matter of damages could affect the right to condemn. The effort to prove that the Commissioner was attempting to coerce the defendants, Darnall and Knight, to sell their coal property to him by threatening otherwise to destroy its value by the relocation of the highway on what they contend is the only site upon which they can construct a tipple and a side track to serve their property, we believe, is more than met by the fact that the original location was at first submitted to the Federal Public Roads Administration by the Road Commissioner and it was only after the rejection of that plan by it that the State Road Commissioner, upon the Administration’s recommendation, considered the relocation up the right hand side of Copen Run. As we read this record, the plan to relocate the highway did not originate with the Road Commissioner, but was adopted by him primarily for the purpose of procuring an allocation of Federal funds to pay the entire cost of construction. So far as this record discloses coercion was used upon, rather than by, the State Road Commissioner. We have been unable to locate a statute or a decided case that makes it improper for the State Road Commissioner to follow the advice of Federal engineers, even though that advice differs from his own first judgment and is the determining factor in obtaining an allowance of Federal funds. The extent to which the allocation of Federal funds deprived the State Road Commissioner of an independent discretion or caused him to recommend the original location believing that it would be disapproved, is among the imponderables. The recent case in which this Court has dealt with the broad powers of the State Road Commissioner and has held that the exercise of those powers is not subject to review unless plainly shown to be arbitrary, capricious or corrupt is that of Heavner v. State Road Commission (1937), 118 W. Va. 630, 191 S. E. 574, opinion by Judge Fox. In that case will be found a lucid statement as well as citations to the leading West Virginia cases. Although the Heavner case was in mandamus, it involved the re *163 location of a State highway and the treatment of the occupants of the property upon the abandoned location as to ingress and egress. Here there are nine dwellings on the old location, the occupants of which, though not entitled to a continuation of the same conveniences, still must be provided with a fair means of going to and from their homes. How this will be done and the expense involved we do not believe is material to the questions now before the Court. The case of State v. Horner (1939), 121 W. Va. 75, 1 S. E. 2d 486, opinion by Judge Fox, deals with the width of the right-of-way that may be acquired in order to provide for the necessary fills, retaining walls, etc. and we believe fully answers questions of that nature presented by this record. The defendants contend that the old location was rejected by the Federal authorities because at two points it crossed Copen Run at creek level and went under a bridge of the Baltimore & Ohio Railroad, both of which points could have been very easily and inexpensively bypassed, and that therefore the State Road Commissioner acted arbitrarily in not altering the survey of the original route in that respect and resubmitting it to the Public Roads Administration. It seems to us that the same sort of questions could be raised concerning any and all surveys that might be submitted under like circumstances if rejected, and that the extent) to which a rejected survey would require alteration and change, in order to receive the eventual approval of the Federal authorities in charge, is necessarily conjectural. Perhaps Federal approval would require more than one alteration and resubmission. There is nothing in this record which shows specifically the reason for the rejection of the original location. It does seem that the two points at which the old road crossed Copen Run at creek level were its lowest points and consequently suffered most from the floods. If they were avoided, the most objectionable features of the old location would likely be eliminated, but even that is not established by engineering opinion, but is the *164 opinion of the two defendants in error and lay witnesses introduced by them. We are of the opinion that a change of plan not suggested by the Federal authorities would have been obviously a relative: matter, and that a slight alteration of the survey, coupled with the plainly implied refusal to follow the recommendation of the Federal engineers, who, as we have stated, preferred the new location, could not have hoped to receive Federal approval. The State Road Commissioner’s discretion and judgment should not be overridden by any other agency, but to say that it cannot be properly influenced by qualified and competent advice would seem to approach arbitrariness. For the foregoing reasons the judgments of the Circuit Court of Gilmer County are reversed and the cases remanded for further proceedings. Reversed and remanded.