Handley v. Cook , 162 W. Va. 629 ( 1979 )

Neely, Justice:

This action in prohibition challenges an order granting Appalachian Power Company a right of entry over relators’ lands for construction of a high voltage power line to serve a single coal mining operation. We issued a rule to show cause limited to two questions: whether an order granting a right of entry for construction of a power line is appealable notwithstanding the fact that construction has not begun nor compensation been determined; and, whether supplying electricity to a single mining operation is a public use contemplated by W. Va. Const. Art. 3, § 9 and W.Va. Code, 54-l-2(b) [1962]. Having determined that an order granting entry in a condemnation proceeding is an appealable order and that supplying electricity to a single consumer regardless of his status as an individual or a business is a public use, the rule to show cause is discharged and the writ prayed for denied.

Pursuant to its plan to mine coal in Wayne County, West Virginia, the East Lynn Monterey Coal Company prevailed upon the Appalachian Power Company to supply power to its mine and respondent power company determined it necessary to obtain rights-of-way across relators’ lands. After failing to reach an agreement with the relators concerning rights-of-way, Appalachian Power Company filed condemnation proceedings in the Circuit Court of Wayne County and obtained entry orders for the purpose of surveying and laying out the proposed right-of-way.¹ Further orders were entered authorizing Appalachian Power Company to possess, appropriate, and use relators’ lands for construction and operation of an electric power transmission line and adjudicating Appalachian Power Company’s right to take. Relators seek a writ of prohibition in this Court maintaining principally that the respondent judge abused his legitimate powers because supplying electricity to a single commercial enterprise is not a public use, and since the granting of a writ of entry may not be an appealable order, there is no other effective remedy to prevent irreparable damage from the judge’s action in excess of his lawful powers.

I

The threshold question in this case is whether prohibition is the proper procedure to challenge the lower court’s orders. It is well established that prohibition does not lie to correct mere errors and cannot be allowed to usurp the functions of appeal, writ of error, or certio-rari, Woodall v. Laurita, 156 W. Va. 707, 195 S.E.2d 717 (1973); State ex rel. Huntington v. Lombardo, 149 W. Va. 671, 143 S.E.2d 535 (1965). Clearly, the lower court had jurisdiction of the condemnation proceedings, W.Va. Code, 54-2-1 [1923], and, unless it so exceeded its legitimate powers as to vitiate that jurisdiction, prohibition is not the proper remedy. Relators allege that there was a vitiation of jurisdiction when the lower court ruled that the taking of private property by eminent domain for construction of an electric power transmission line to serve a single commercial customer is a public use. We find, however, that the lower court acted properly. It is apparent to us that Appalachian Power Company is clothed with the power of eminent domain for construction of power transmission lines. W.Va. Code, 54-l-2(b) [1962].²

The only question for us to decide is whether service to one industrial customer comes within the ambit of a public use.

Interestingly, both relators and respondent call our attention to virtually the same cases, an anomaly easily understood upon examination of the precedents. All the cases stand for the broad proposition that private property cannot be taken for private use. The cases then apply that broad principle to the fact patterns presented in the cases. An examination of these cases demonstrates that the respondent must prevail on the facts before us in this case. The cited cases most analogous to the one at bar are those dealing with gas and power lines where, without exception, we have found a public use present.³ We do not mean to imply that anything for which a power or gas company seeks to condemn private property will be considered a public use, but only that condemnations of rights-of-way to provide energy have consistently been considered by this Court as serving a public use.

The Legislature in order to make power available has conferred upon electric power companies the right of eminent domain, and has thereby necessarily imposed upon them, as public service corporations, the right and duty of performing a public service. The condemner, Appalachian Power Company, must supply electrical service to those who desire it and are able to pay for it; the company cannot arbitrarily discontinue service or increase the rates charged; and, the company’s provision of service is dependent upon the will of the Legislature and, in turn, the Public Service Commission. Relators contend that service to one customer does not serve a public need; however, it is the nature of the use rather than the number of persons served which is the paramount consideration. Waynesburg Southern R.R. Co. v. Lemley, 154 W. Va. 728, 178 S.E.2d 833 (1971). Furthermore we find no distinction between residential and commercial users; seeking to separate the two as to which is deserving of “public use” treatment in the provision of utility services is unavailing to the relators. Appalachian Power Company makes available electrical power to all, individuals and businesses alike, and would be hard pressed to deny high voltage power to anyone along the proposed line who needed it. Undoubtedly, re-lators themselves are power users and would be horrified if their power service had not been forthcoming due to a recalcitrant adjacent landowner.

II

Even if relator’s allegations were correct, prohibition would be an inappropriate means to challenge an adjudication of a private condemner’s right to take because such orders are appealable final orders even though they retain some characteristics of being interlocutory; therefore, complainants, such as relators, are not left without a remedy. While admittedly our language in past cases has not always been crystal clear about the time at which orders in an eminent domain proceeding become appealable, the results have been reasonable. After the right to take has been adjudicated, the meat of the case has been tried, and a writ of error should lie. Requiring actual entrance and use by the condemner as a condition precedent to the landowner’s appeal would produce absurd results; why should litigants be required to wait until property has been used and perhaps ruined for their purposes before they can seek relief?

To the extent that any of our past language implies that the land must be actually taken into possession and use or compensation actually determined or paid before a writ of error will lie, we declare such implications to be overruled. In all future cases, at the time the right to take has been determined the landowner can apply for’ a writ of error and supersedeas.

For the reasons stated above, the rule to show cause heretofore issued is discharged and the writ of prohibition prayed for denied.

Writ denied.

1 Relators allege that the respondent power company entered upon their lands causing damage before proper authority to enter had been obtained. It is unclear whether relators allege this as a bar to the condemnation proceedings or merely in an effort at persuasion. That unlawful entry before condemnation proceedings does not act as a bar to taking is clear, Waynesburg Southern R.R. Co. v. Lemley, 154 W. Va. 728, 178 S.E.2d 833 (1971). The proper remedy for any damage caused would be an action at law for trespass.

2 W.Va. Code, 54-l-2(b) [1962] provides that private property may be taken or damaged:

“For the construction and maintenance of telegraph, telephone, electric light, heat and power plants, systems, lines, transmission lines, conduits, stations (including branch, spur and service lines) when for public use...

3 Shepherdstown Light & Water Co. v. Lucas, 107 W. Va. 498, 148 S.E. 847 (1929); Brooke Electric Co. v. Paull, 96 W. Va. 645, 123 S.E. 590 (1924); Brooke Electric Co. v. Beall, 96 W. Va. 637, 123 S.E. 587 (1924); West Virginia & Maryland Power Co. v. Racoon Valley Coal Co., 93 W. Va. 505, 117 S.E. 891 (1923); Pittsburgh & West Virginia Gas Co. v. Cutright, 83 W. Va. 42, 97 S.E. 686 (1918); Carnegie Natural Gas Co. v. Swiger, 72 W. Va. 557, 79 S.E. 3 (1913); Pittsburgh Hydro-Electric Co. v. Liston, 70 W. Va. 83, 73 S.E. 86 (1911); Charleston Natural Gas. Co. v. Lowe & Butler, Trustees, 52 W. Va. 662, 33 S.E. 44 (1901).