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.”).

                                              3
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).

                                              4
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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