Newman v. Bailey , 124 W. Va. 705 ( 1942 )

I cannot but think that, by certain views intimated in the majority opinion, the relator would be deprived of a substantial estate in his land without compensation.

In 1933, the State (or the county, it matters not) without any right or claim or pretense of right so to do, entered upon the land owned by the relator and thereafter constructed and has ever since maintained across the same a public highway. This act, had it been perpetrated by any one other than the sovereign state would have been a gross tort. By this wrong, the state acquired no right, interest or estate in the land, and the then owner lost none. Hence, Oblinger, came to the time of his conveyance to Newman seized absolutely of the whole and complete estate in the land, unincumbered by any easement, right of way, or any other right or interest, vested, inchoate, initiate or of any other character, in the state. He owned the land as he had always owned it, injured, of course, by the state's wrongful act, but with his estate undiminished, unincumbered and unaffected in the least thereby.

Oblinger, the owner at the time of the injury by the state, conveyed to Newman, the relator herein. He conveyed, without exception or reservation, express or implied, his whole estate in the land, and the grantee succeeded to Oblinger's title in all its fullness and perfection. The new owner acquired the land free from any right, title or interest in the state, since the state had acquired and owned none, and Oblinger had divested himself of none. Of course, whatever right to compensation for injury to the land Oblinger had was personal to him and could not pass by the deed, or by any other method of assignment; but the land passed by the deed, and every possible interest or title in it, which Oblinger held.

The state then continued all these years to occupy and use the highway across the relator's land — an act which in a private individual would be a continuing and ever-repeated trespass. Since the state cannot be made a party defendant to a suit or action, the landowner cannot protect himself against this invasion of his land by ejectment, injunction or any other remedy. This Court has accordingly held that under such circumstances, the landowner may by mandamus compel the State Road Commissioner to institute and prosecute a condemnation proceeding by which to acquire and pay for an easement in, or right of way over, the land on which the highway lies, as well as to ascertain damages incident thereto. Stewart v. State RoadCommissioner, 117 W. Va. 352, 185 S.E. 567; Hardy v. Simpson,118 W. Va. 440, 190 S.E. 680; Riggs v. State Road Commissioner,120 W. Va. 298, 197 S.E. 813.

Such easement, or right of way, must of necessity be carved out of the land and be obtained from the owner thereof. It cannot be acquired from him who owned the land when the original entry was made, because he owns no interest in the land. The state could not at this time buy an easement from him, and no more can such easement be acquired by condemnation. He owns no interest of any kind in the land — nothing which the state can acquire, nothing for which he is entitled to pay. The state stands, as it has always stood, wholly without any right or pretense of right to such easement. It must begin from the beginning, in precisely the same way as though it had never trespassed. It must now get this right of way from the man who owns the land, not from any former owner, and that man must be paid for it. He may not be entitled to damages for the building of the road, but he is entitled to compensation for the easement in his land, and this justifies his right to mandamus to compel the commissioner to institute a proper proceeding for ascertaining such compensation, and for coercing its payment.

I believe it will be found that not one case mentioned in the majority opinion is at variance with the conclusion thus reached. All these cases, so far as I can ascertain, relate to either (1) damages only, as distinguished from compensation for the estate in the land taken, or to (2) compensation for the right of way taken, where condemnation proceedings had been instituted and the right to compensation accrued or vested before the land was conveyed. Not one relates to a case where the highway was built absolutely without any right whatever, and the right of way is to be carved out of the land long after the land has legally passed into the hands of another. The majority seem to assume that the state, when it built the road, acquired from the then owner of the land an easement for which that owner must be paid. This, of course, is a misapprehension. The then owner was damaged, for which he is entitled to compensation, but the state got no easement or right of way from him, and consequently, owes him nothing on that score.