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No. 24897- State of West Virginia ex rel. Mervin Henson and Karen Henson v. West
Virginia Department of Transportation
Starcher, Justice, dissenting:
I disagree with the
majority's opinion that the Hensons failed to meet the requirements necessary for a writ
of mandamus to be issued. The majority is correct in reiterating that the appropriate
recourse for property owners, whose property is damaged by the Department of
Transportation ("DOT"), is to compel eminent domain proceedings by filing a
petition for a writ of mandamus against the DOT.See
footnote 1 1
The majority opinion rests on the Hensons'
failure to introduce evidence to "establish a set of facts that show that the
appellee has taken or damaged their property. . . ." W.Va. at , S.E.2d at (Slip
op. at 5). However, the majority inexplicably ignores the fact that the circuit court
never permitted the Hensons to introduce any evidence. Thus, the majority faults the
Hensons for failing to do what the circuit court would not permit them to do.
According to their brief, the Hensons were
prepared at the show cause hearing to present witnesses and photographic evidence to
establish that the DOT had "altered the drainage system by paving and widening the
roadway and by blocking one of the drainage pipes. . . ."
The majority is applying the wrong
standard to establish the Hensons' burden. This Court has stated:
Where a petitioner seeks in a mandamus
proceeding to compel the State Road Commissioner [DOT] to institute proceedings to
ascertain damages to private property allegedly caused by the State Road Commissioner in a
highway construction or improvement, the clear legal right which the petitioner must show
is not that there has been damages or what the amount of damages is, but that there is reasonable
cause to believe that these question should be resolved by a judge and a jury of
freeholders in the county in which the property is located.
Syllabus Point 2, State ex rel. Phoenix Insurance Company v. Ritchie, 154
W.Va. 306, 175 S.E.2d 428 (1970) (emphasis added). The majority's opinion would require
that the Hensons prove their damages prior to obtaining a writ of mandamus. Clearly under Phoenix,
supra., that is not a burden the Hensons must shoulder in the mandamus proceeding. In Orlandi
v. Miller, 192 W.Va. 144, 147, 451 S.E.2d 445, 448 (1994) (per curiam), we
stated:
To be entitled to mandamus relief, the
parties seeking such relief are not required to establish that they will ultimately
recover damages in the requested condemnation proceeding. They must only show that they
have suffered probable damage to their private property.
I do agree with the
majority that before a writ will be issued, property owners must show a clear legal right
to the relief sought. However, as we have held, . . . it would not be appropriate or
legally permissible for the Court to undertake in these proceedings in mandamus to
consider and adjudicate the questions which may arise upon proper pleadings and proof in
subsequent proceedings in eminent domain.
State ex rel. French v. State Road Commission, 147 W.Va. 619, 621,
129 S.E.2d 832-33 (1963).
Facts similar to those in the instant case
occurred in State ex rel. Smeltzer v. Sawyers, 149 W.Va. 641, 142 S.E.2d 886
(1965). In Smeltzer, the petitioner sought a writ of mandamus to compel the state
road commissioner to institute eminent domain proceedings against the petitioner so as to
ascertain compensation for some damage caused to petitioner's house.
The petitioner, in Smeltzer,
alleged that the damage to her house had been caused by water draining onto her property.
The state road commissioner denied the allegations, claiming that the petitioner was at
fault for not properly maintaining the drainpipe located on petitioner's property. In Smeltzer,
this Court stated that there was "some doubt in the minds of the members of this
Court as to whether the damage alleged in the petition and testified to by the petitioner
in her deposition is caused by [the respondent]. . . ." Smeltzer, 149
W.Va. at 643, 142 S.E.2d at 889.
Despite doubts about the sufficiency of
evidence in Smeltzer, this Court granted the petitioner a writ of mandamus so that
the "petitioner may have her day in court, but it will be incumbent upon her to prove
by a preponderance of the evidence, beyond mere speculation or conjecture, that her
property had been damaged and that the proximate cause of such damage was the [respondent]
. . . ." Smeltzer, 149 W.Va. at 644-645, 142 S.E.2d at 889.
The majority opinion also failed to
discuss the lower court's holding that the Hensons were, as a matter of law, not entitled
to claim damages for personal property. The circuit court cited as authority for its
ruling State ex rel. Firestone Tire and Rubber Co. v. Ritchie, 153 W.Va. 132, 168
S.E.2d 287 (1969), a case that suggests that a party cannot recover for damages to
personal property in an eminent domain proceeding. We expressly held in G.M. McCrossin,
Inc. v. West Virginia Board of Regents, 177 W.Va. 539, 355 S.E.2d 32 (1987), contrary
to Firestone, supra, that "the statutory eminent domain procedure can, in the
appropriate case, be utilized to set compensation for personal property." McCrossin,
177 W.Va. at 545, 355 S.E.2d at 38. The circuit court was, therefore, clearly wrong to
state that there is no legal authority to entitle a party to recover for damage to
personal property in an eminent domain proceeding.
In summary, I believe the circuit court
was wrong to deny the writ of mandamus as a matter of law and that this wrong was simply
carried forward by this Court's decision in denying the writ because the Hensons failed to
"establish a set of facts that show that the appellee [had] taken or damaged their
property." For these reasons I respectfully dissent.
Footnote: 1
1 As this Court has held: