SER W. Va. Dept. of Transportation, Div. of Highways v. Hon. Robert A. Burnside, Jr., Judge

No. 15-1112 - State of West Virginia ex Rel. West Virginia Department of
Transportation, Division of Highways v. the Honorable Robert A.
Burnside, Jr., Judge of the Circuit Court of Raleigh County, and MCNB
Bank and Trust Co.
FILED
June 13, 2016
released at 3:00 p.m.
RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Davis, Justice, concurring:
I agree with the outcome reached in this condemnation matter, which grants
the writ of prohibition sought by the West Virginia Department of Transportation, Division
of Highways (“DOH”), and allows the DOH to acquire a right of entry and defeasible title
to the commercial property at issue upon its deposit of the sum equal to the DOH’s
preliminary estimate of just compensation. I have chosen to write separately because dicta
contained in the majority opinion in this case indicates that a preliminary estimate by the
State or its political subdivision in a condemnation matter may be challenged prior to a
hearing before commissioners on the grounds that it is facially or patently defective, the
result of an ultra vires act, made in objective bad faith, or on other grounds justified by good
cause. As I will demonstrate, the analysis used in the opinion to reach this conclusion simply
is not supported by either of the two applicable statutes, W. Va. Code § 54-2-14 (1981)
(Repl. Vol. 2008) or § 54-2-14a (1981) (Repl. Vol. 2008).
West Virginia Code § 54-2-14 states, in relevant part, that,
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[i]f the applicant be the State of West Virginia, or any
political subdivision thereof, on filing its petition as authorized
in this article, and if the court or judge is satisfied that the
purpose for which the land or property is sought to be
condemned is a public use for which private property may be
appropriated on compensating the owner, the court or judge
shall, at the request of the applicant, make an order permitting
the applicant at once to enter upon, take possession, appropriate
and use the land sought to be condemned for the purposes stated
in the petition.
(Emphasis added). West Virginia Code § 54-2-14a similarly provides that,
[p]rior to any report by condemnation commissioners, or
verdict of a jury, if the applicant be the State of West Virginia
or any political subdivision thereof, and be otherwise authorized
by law to make payment as required in this section, on filing its
petition as authorized in this article, and if the court or judge is
satisfied that the purpose for which the property or interest or
right therein, is sought to be condemned is a public use for
which private property may be appropriated on compensating
the owner, the applicant may thereupon acquire title to, and
enter upon, take possession of, appropriate and use the property,
or interest or right therein, sought to be condemned for the
purposes stated in the petition by following the method provided
in this section.
....
Upon such payment into court, the title to the property,
or interest or right therein, sought to be condemned, shall be
vested in the applicant . . . .
(Emphasis added).
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Under the plain language1 of the foregoing statutes, so long as the State or any
political subdivision thereof has either petitioned a circuit court pursuant to W. Va. Code §
54-2-14, or petitioned the circuit court and paid into the court a sum equal to its estimate of
the fair value of the property pursuant to W. Va. Code § 54-2-14a, a trial court may consider
only whether “the purpose for which the property or interest or right therein[] is sought to be
condemned is a public use for which private property may be appropriated on compensating
the owner . . . .” W. Va. Code § 54-2-14a. See also W. Va. Code § 54-2-14 (allowing the
circuit court to consider only whether “the purpose for which the land or property is sought
to be condemned is a public use for which private property may be appropriated on
compensating the owner . . . .”).
Neither of the foregoing statutes grants authority to a circuit court determining
whether to allow the State or its political subdivision to enter or possess land to, at this
preliminary stage of a condemnation proceeding, consider anything other than whether the
purpose for which the property is sought to be condemned is a public use. Indeed, by
1
See Foster Found. v. Gainer, 228 W. Va. 99, 110, 717 S.E.2d 883, 894 (2011)
(“Statutes whose language is plain must be applied as written . . . .”); Syl. pt. 2, State v.
Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968) (“Where the language of a statute is clear and
without ambiguity the plain meaning is to be accepted without resorting to the rules of
interpretation.”); Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951) (“A
statutory provision which is clear and unambiguous and plainly expresses the legislative
intent will not be interpreted by the courts but will be given full force and effect.”).
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utilizing the word “shall,” the statutes impose a mandatory duty2 upon circuit courts to grant
entry, possession, and defeasible title, upon making a determination that condemnation is
sought for a public purpose, so long as the court has received an application and, where
defeasible title is sought, payment of the appropriate funds. See W. Va. Code § 54-2-14
(“[T]he court or judge shall, at the request of the applicant, make an order permitting the
applicant at once to enter upon, take possession, appropriate and use the land sought to be
condemned for the purposes stated in the petition.” (emphasis added)); W. Va. Code § 54-2-
14a (“Upon such payment [of the fair value estimate along with any bond that may be
required] into court, the title to the property, or interest or right therein, sought to be
condemned, shall be vested in the applicant[.]” (emphasis added)).
Furthermore, the authority relied upon by the majority to outline additional
grounds upon which a preliminary estimate of the value of property by the State or a political
subdivision may be challenged does not support allowing such a challenge when the estimate
has not yet been considered by commissioners or a jury. See W. Va. Code § 54-2-10 (1967)
(Repl. Vol 2008) (setting parameters for certain proceedings applicable after commissioners’
report has been filed); W. Va. Code § 54-2-13 (1981) (Repl. Vol. 2015) (same). Insofar as
dicta in the majority opinion purports to prescribe new grounds for challenging a preliminary
2
“It is well established that the word ‘shall,’ in the absence of language in the
statute showing a contrary intent on the part of the Legislature, should be afforded a
mandatory connotation.” Syl. pt. 1, E.H. v. Matin, 201 W. Va. 463, 498 S.E.2d 35 (1997)
(internal quotations and citation omitted).
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estimate of the value of property based upon language from statutes that allow specific types
of challenges only after a finding by commissioners or a jury, I do not believe that these
factors should be applied. Pre-commissioner challenges to preliminary estimates of the State
or its political subdivisions on any grounds other than whether the property is sought to be
condemned for a public use are not supported by statute and will cause untold
pre-commissioner litigation that the law does not permit. Accordingly, I concur with the
majority’s ultimate decision in this case, but not with the dicta herein discussed.
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