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West Virginia Department of Transportation v. Victor Morton Echols

Supreme Court of West Virginia

April 12, 2019

WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, AND BYRD WHITE, INTERIM SECRETARY/COMMISSIONER, Petitioners Below, Petitioners
v.
VICTOR MORTON ECHOLS, REGINA LOUISE SMITH, RAMONA GAIL ELLISON, AND VERONICA JANE DELBRUGGE, Defendants Below, Respondents

          Submitted: January 9, 2019

          Certified Questions from the Circuit Court of Grant County The Honorable James W. Courrier, Jr., Judge Case No. 10-C-14.

          Leah R. Chappell, Adams, Fisher & Chappell, PLLC, Ripley, West Virginia Anthony W. Rogers, Attorney for the Respondents.

          Duke A. McDaniel, Petersburg, West Virginia, Kirkwood & Rogers PA Inc., Keyser, West Virginia Attorneys for the Petitioners.

         SYLLABUS BY THE COURT

         1. When the West Virginia Department of Transportation, Division of Highways, initiates a condemnation proceeding that involves a partial taking of land in connection with a highway construction project that is subject to the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4601 et seq., the question of whether the residue has become an "uneconomic remnant" is a question to be determined exclusively by the Commissioner of Highways.

         2. One whose real estate is taken for public use is entitled to just compensation for the value of the land taken at the time of taking, and to damages to the residue.

         3. When the West Virginia Department of Transportation, Division of Highways, initiates a condemnation proceeding that involves a partial taking of land in connection with a highway construction project, and when, as a result of the project, the residue is rendered landlocked by the destruction of the preexisting public road access, the Division of Highways may, without the landowner's consent, mitigate the damage to the residue by ensuring that the work performed by the Division of Highways is completed or revised in a manner that assures reasonable public road access thereto. The Division of Highways must commit to ensure access by more than a mere promissory statement or declaration. Instead, the Division of Highways must protect the rights of the parties concerned by obligating itself to provide public road access by amending its condemnation petition, filing a new petition, or by some form of binding stipulation that is definite and certain in its terms.

         4. When the West Virginia Department of Transportation, Division of

         Highways, initiates a condemnation proceeding that involves a partial taking of land in connection with a highway construction project, and when, as a result of the project, a residue tract that is not needed by the State for public road purposes has been rendered landlocked, the trial court cannot require the Division of Highways to acquire the landlocked residue by condemnation.

          OPINION

          Jenkins, Justice.

         The instant matter is before this Court upon questions certified by the Circuit Court of Grant County arising from a condemnation proceeding initiated by the West Virginia Department of Transportation, Division of Highways, a respondent herein, in relation to a federally-funded highway construction project that resulted in residue property being rendered landlocked. After exercising our authority to reformulate the questions certified, and after considering the parties' briefs, relevant portions of the appendix record, oral arguments, and the pertinent law, we answer the reformulated certified questions as follows:

1. When the West Virginia Department of Transportation, Division of Highways, initiates a condemnation proceeding that involves a partial taking of land in connection with a highway construction project that is subject to the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4601 et seq., and when, as a result of the project, a residue tract has been rendered landlocked, is the question of whether the residue has become an "uneconomic remnant" a question of fact to be determined by a jury? Answer: No.
2. When the West Virginia Department of Transportation, Division of Highways, initiates a condemnation proceeding that involves a partial taking of land in connection with a highway construction project, and when, as a result of the project, the residue is rendered landlocked by the destruction of the preexisting public road access, may the Division of Highways, over the objection of the landowner, mitigate the damage to the residue by restoring reasonable public road access thereto? Answer: Yes.
3. When the West Virginia Department of Transportation, Division of Highways, initiates a condemnation proceeding that involves a partial taking of land in connection with a highway construction project, and when, as a result of the project, a residue tract that is not needed by the State for public road purposes has been rendered landlocked, can the trial court require the Division of Highways to acquire the landlocked residue by condemnation? Answer: No.

         I.

         FACTUAL AND PROCEDURAL HISTORY

         This proceeding arises from a dispute involving the construction of Corridor H, which is a federally-funded project. Respondents, Victor Morton Echols, Regina Louise Smith, Ramona Gail Ellison, and Veronica Jane Delbrugge (collectively "Property Owners"), own a tract of land along the route of Corridor H in Grant County. In furtherance of the construction of Corridor H, a federally-funded highway project subject to the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4601 et seq., the Petitioners, the West Virginia Department of Transportation, Division of Highways, and Byrd White, Interim Secretary/Commissioner[1] (collectively "the DOH"), condemned a 58.70 acre portion of Property Owners' land.[2] Property Owners' residue, the land that was not condemned by the DOH, was divided by Corridor H into two parts. One tract of approximately 18.81 acres is located south of Corridor H. The other tract exceeds 120 acres[3] and is located to the north of Corridor H ("the northern tract").

         The dispute underlying this proceeding arose after the DOH filed its petition to condemn a portion of Property Owners' land in February 2010. The circuit court entered its "ORDER FILING THE PETITION" in March 2010, and thereby granted the DOH the right to condemn the real estate and begin construction of the Corridor H project. Shortly thereafter, the DOH deposited into the circuit court's receivership account an amount equal to its estimate of just compensation for the condemned property, which was $334, 400. Once the date of take was established, the DOH revised its estimate and deposited an additional $21, 300. Another order entered by the circuit court in March 2010 directed that the condemnation proceeding would be delayed until construction on the subject property was complete, which completion occurred in 2014.

         As a result of the construction of Corridor H, the northern tract of Property Owners' land was rendered landlocked.[4] The DOH's appraiser valued the northern tract at $2, 100 per acre, for a total of $261, 093.[5] Property Owners' appraiser valued the northern tract at $3, 500 per acre, for a total of $449, 190.[6] The DOH proposed to construct an access road to Property Owners' northern tract at an estimated cost of $100, 000.[7] Property Owners opposed the proposal claiming that the area where the access road would be located is very steep and is "in a slide area;" thus, they contend, maintaining a road in that area would be unreasonably costly. As a result, Property Owners filed, in the condemnation proceeding before the circuit court, their amended motion for leave to file an answer and counterclaim. Property Owners sought to compel the DOH to condemn the landlocked northern tract as an "uneconomic remnant" pursuant to 42 U.S.C. § 4651(9) (2012). The DOH filed its response essentially asserting, in part, that it could not be compelled to purchase the northern tract as an "uneconomic remnant."

         The circuit court, by order entered August 26, 2016, concluded that the Property Owners would be permitted to present their claims to the jury. In so ruling, the circuit court reasoned that,

[i]n every condemnation case, there is always a two-step determination on damages. First is a determination of the fair market value of the land actually taken. Second is a determination of the damages, if any, to any remainder property of the landowner. In the second determination, if the remainder property is rendered . . . damaged to the extent that it has no reasonable value to the landowners, and is thus an uneconomic remnant, then that remainder must be purchased for fair market value by the condemning entity. Both of these determinations are questions for the jury.
Therefore, the Court FINDS that the issues of whether any remaining tracts are uneconomic remnants which must be purchased by the DOH or, in the alternative, whether any remaining tracts have been damaged, but still retain some value, are properly before the Court for consideration by the jury. The [Property Owners] are free to present evidence that the remainder has no reasonable value and that the DOH must purchase the tract(s) for fair market value. Likewise, the DOH can offer evidence that the property retains value and that it should only have to pay for the reasonable damages to the residue.
The Court will offer a special interrogatory to the jury for it to determine whether the remainder tract(s) is an uneconomic remnant. If the answer is yes, a second special interrogatory will ask the jury to state the amount the DOH is to pay for the tract(s). If the answer to special interrogatory number one is no, then the jury will consider the amount of damages to the remainder tract(s) that should be paid to the [Property Owners].

         The case was then set for trial on December 8, 2016. At a pretrial conference, Property Owners filed a motion in limine to prohibit the DOH from introducing any evidence of its offer to construct an access road to the northern tract. The circuit court found no binding precedent regarding the DOH's introduction of evidence of its offer to build an access road. Additionally, the court found no authority as to whether the DOH was entitled to mitigate damages to residue property by providing an access road to property landlocked by virtue of the DOH's construction project (Corridor H in this instance). The court requested proposed certified questions from the parties and, thereafter, entered its order certifying three questions to this Court. The three questions, and the circuit court's answers thereto, are as follows:

1. When the completion of a highway construction condemnation project by [the DOH] has rendered a large parcel of land (which is otherwise economic) landlocked, is the DOH required to institute a formal condemnation proceeding on the residue or remainder tract without first being given the opportunity to construct an access road to mitigate the landlocked nature of the real estate?
Answer: No because it would be unreasonable to require the DOH to purchase a large tract of land when the landlocked nature of the real estate could be remedied by the construction of an access road at potentially a lesser expense to the taxpayer than the purchase of the entire remainder tract and if the real estate is economic with the provision of an access road.
2. When the DOH offers to construct an access road to a landlocked remainder tract following the completion of a highway construction project, do the landowners have the right to refuse the construction of the access road?
Answer: Yes because the landowners should be able to reject an offer which they feel does not provide reasonable access to the real estate or is unreasonable for other reasons, such as that it diminishes the value of the real estate or will create an unreasonable cost to maintain. Should the landowners reject the offer, the matter should proceed to trial in due course for a determination of the fair market value of the taking due to the condemnation action, with consideration given to the landowners' refusal to allow the DOH to construct reasonable access to the real estate.
3. If landowners should be able to reject an offer to construct an access road to the real estate that has been landlocked following a highway construction project, may the DOH present evidence during the condemnation jury trial that the landowners refused the DOH's offer to construct reasonable access and present to the jury the projected amount to construct an access road in order to mitigate damages to the remainder tract?
Answer: Yes because the jury should be able to consider the mitigation of damages by the proposed access road construction should they find the proposed access road is reasonable and the land would be economic if an access road is provided.

         II.

         STANDARD OF REVIEW

         Our standard for reviewing certified questions presented from a circuit court is well established: "[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novor Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). Thus, we afford plenary consideration to the reformulated certified questions.

         III.

         DISCUSSION

         Prior to addressing the issues raised in this proceeding, we exercise our authority to reformulate the questions certified by the circuit court in order to fully address the legal issues therein presented.

"When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W.Va. Code, 51-1A-1, et seq. and W.Va. Code, 58-5-2 [1967], the statute relating to certified questions from a circuit court of this State to this Court." Syl. Pt. 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993).

Syl. pt. 2, Pyles v. Mason Cty. Fair, Inc., 239 W.Va. 882, 806 S.E.2d 806 (2017).[8] Consistent with our authority to do so, we reformulate the questions herein certified as follows:

1. When the West Virginia Department of Transportation, Division of Highways, initiates a condemnation proceeding that involves a partial taking of land in connection with a highway construction project that is subject to the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4601 et seq., and when, as a result of the project, a residue tract has been rendered landlocked, is the question of ...

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