Howard E. Krauskopf
See, Walters & Krauskopf
Moorefield, West Virginia
Attorney for the Appellant
James Paul Geary
James Paul Geary, II
Geary & Geary, L.C.
Petersburg, West Virginia
Attorney for the Appellees
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. Once the statutory power of eminent domain has been
conferred upon an agency, a court's inquiry into the scope of such
power is limited solely to the question of whether it is to be
exercised in order to provide a public service.
2. "Courts are limited in their inquiry to the question
whether the particular service provided for is a public service."
Syllabus point 3, Pittsburg Hydro-Electric Co. v. Liston, 70 W.Va.
83, 73 S.E. 86 (1911).
3. "Whether it is expedient, appropriate, or necessary
to provide for a public service of a particular kind or character
is a legislative, not a judicial, question." Syllabus point 2,
Pittsburg Hydro-Electric Co. v. Liston, 70 W.Va. 83, 73 S.E. 86
4. "'The sole discretion to determine what quantity of
land is necessary for a public use is vested in the agency
resorting to eminent domain, which discretion will not be
interfered with by the courts unless it has been abused.' Syllabus
Point 2, State v. Bouchelle, 137 W.Va. 572, 73 S.E.2d 432 (1952)."
Syllabus point 1, Mr. Klean Car Wash, Inc. v. Ritchie, 161 W.Va.
615, 244 S.E.2d 553 (1978).
5. "'Any corporation or body politic authorized to
acquire private property for public use pursuant to the provisions
of Chapter 54, Code, 1931, as amended, may acquire an estate in fee
simple, or any lesser estate therein.' Syllabus Point 4, Board of
Education v. Shafer, 147 W.Va. 15, 124 S.E.2d 334 (1962)."
Syllabus point 2, Mr. Klean Car Wash, Inc. v. Ritchie, 161 W.Va.
615, 244 S.E.2d 553 (1978).
The Potomac Valley Soil Conservation District (PVSCD),
appeals from an August 26, 1991, final order of the Circuit Court
of Hardy County denying the PVSCD the relief it requested in
applications in which it sought to exercise the power of eminent
domain and condemn certain land for public use.
The appellant, PVSCD, is a public body corporate, and a
political subdivision of the State of West Virginia. The district
is comprised of elected landowners from a five-county jurisdiction:
Mineral, Hardy, Grant, Pendleton, and Hampshire counties.See footnote 1 The
soil conservation district's statutory mandate is to provide for
the conservation of West Virginia's soil and soil resources, for
the control and prevention of flood water and sediment damage, and
for furthering the conservation, development, utilization, and
disposal of water.
The appellees herein are property owners and others with
interests in real estate, portions of which the PVSCD is seeking to
utilize by exercising its statutory power of eminent domain.
At the center of the conflict in this case is a proposed
flood control dam to be located on Kimsey's Run, a tributary of
Lost River, in Lost River District, Hardy County, West Virginia.
This project has been officially designated as the Lost River
Subwatershed of the Potomac River Watershed Project Flood Water
Retarding Dam No. 4. A flood control project consisting of five
dams to be located in the Lost River area was initially developed
in 1974, but those plans were never implemented. After severe
flooding occurred in the region in November, 1985, interest in the
project was renewed. Evaluations completed in 1974 are still
applicable.See footnote 2 However, revised plans now call for a dual strategy
recommended by the Soil Conservation Service to combat the effects
of flooding: (1) improving farming practices that reduce run-off
and erosion, and (2) building one flood control dam.
On June 13, 1990, the appellant instituted nine
condemnation applications related to this project. A hearing was
held on June 29, 1990, at which time the intervenor herein, a
citizens group organized as the Lost River Committee, voiced its
opposition to the flood control plan.See footnote 3 The circuit court withheld
a decision on whether to grant the requested land rights so that
the Lost River Committee could have an opportunity to investigate
and justify their objections to the project. An extensive
discovery process followed, and several additional hearings were
The circuit court issued a written opinion on June 26,
1991, and entered a final order on August 26, 1991. Among its
findings, the court stated that (1) the PVSCD is vested with the
right of eminent domain for certain specified public purposes by
the laws of this State;See footnote 4 (2) the PVSCD sought to condemn land in
the Kimsey's Run Watershed of Lost River for the specific purpose
of flood control, and this purpose is one of the public purposes
for which the PVSCD is vested with the right of eminent domain; and
(3) the PVSCD had shown a need for the project for the specified
In spite of these findings, the PVSCD's applications to
acquire certain lands, rights-of-way, and easements were denied.
Among its other findings, the circuit court also concluded that (1)
the PVSCD should not have requested fee acquisitions in two of the
applications because permanent easements were more appropriate; (2)
the PVSCD incorrectly determined the amount of land necessary to
accomplish the purpose of flood control protection; and (3) the
PVSCD's attempt to allow the Department of Natural Resources (DNR)
to utilize the proposed sixty-six acre permanent flood pool for
public fishing purposes was an abuse of discretion.
According to the appellants, fourteen tracts of land are
affected by the project. The PVSCD negotiated easements and fee
acquisitions for all but five of these tracts. Of the five
remaining landowners, three oppose the project, while two object to
the monetary offer.
The PVSCD believes that the majority of the watershed's
residents are either in favor of or do not oppose the project, but
they admit that they "have not gone to the great effort employed by
the opposition to rally support for their position and pack the
courtroom at each hearing." As the appellants properly point out,
however, the popularity of the proposed project should not be a
guiding factor in the decision-making process in this case.
Significantly, the court below determined that the PVSCD
seeks to condemn the land in question for a "public use" for which
there is a specific need and that this is one of the public
purposes for which the PVSCD is vested with the right of eminent
domain. The court also acknowledged that the PVSCD "has the right
to condemn such interest and property necessary for its flood
control purposes and incidentally thereto to use the flood control
project for recreational purposes."
However, the court concluded that the PVSCD "has no right
to condemn any interest or property for recreational purposes and
incidentally thereto use the same for flood control purposes as is
the case in this action." The circuit court found that the PVSCD's
"proposed project and taking of private property greatly exceeds
that required to accomplish its stated purpose, i.e., flood
control." This was quite obviously the major reason that the
PVSCD's condemnation applications were denied. However, we do not
agree that the evidence in the record supports the three findings
upon which the lower court based such a conclusion.
After careful review of the record in this case, it is
this Court's conclusion that the lower court erred in denying the
PVSCD's condemnation applications because there was insufficient
evidence to justify such a decision. Moreover, we believe there
was evidence of what the PVSCD described as an "obvious
predisposition" by the court below against the PVSCD's exercise of
the power of eminent domain. For example, the lower court opined
that the power should be a community right, and also stated that
the Legislature has "gone wild with that grant of the right to
Several additional issues were raised in this case, some
of which were related to the funding of this project. However, in
this opinion, we will address only the specific reasons identified
by the court below as the basis for its denial of the PVSCD's
First, the court stated that the PVSCD wanted to take an
estate in fee simple rather than a lesser estate even though the
latter would "fully and adequately serve [the PVSCD's] purpose and
would be the only interest of which the owners should properly be
The PVSCD maintains that its decision to obtain fee
interests in property which was either permanently covered by
water, under the dam itself, or under the relocated road, was its
attempt to address access objections raised by landowners and
compensate landowners to the fullest extent possible. The PVSCD
outlined some of its reasons for preferring to take fee title in a
February 6, 1991, letter that PVSCD Chairman J. Richard Campbell
directed to PVSCD counsel:
As requested by Judge Hamilton at the recent land rights hearing for Dam No. 4, Lost River Watershed, the Potomac Valley Soil Conservation District has reviewed the option of taking easement for flood prevention at this site rather than fee title. We share his concern of not adversely affecting the integrity of the valley. After thorough review, the District still believes the present option of taking fee title is best for the following reasons:
1. The Board does not believe, based on
use at similar sites, that the
development of the lake for fishing
will cause a negative change to the
Lost River Valley. Incidental
fishing will compliment the Valley
and its present setting.
2. In 1976 the Board proposed to secure
easements at this dam. At that time,
the local people of Lost River
expressed strong objection to
maintaining the site in private
ownership and allow private
individuals to receive benefit. We
agreed and developed plans to
incorporate this change into the land
3. Nine of 13 landowners have expressed
a desire to sell their land in place
of granting an easement.
4. The cost of securing an easement
based on appraisal value is
approximately the same cost as a fee
5. Based on our assessment of public
opinion, the Board firmly believes
the majority of the people in Lost
River support the construction of
this project and wish to have Dam No.
4 open to the public.
Based on overall good and public benefit
for Lost River, the Board voted at its
February 6, 1991 meeting to maintain the
project as now proposed.
It appears as though the lower court overstepped its
judicial boundaries when it concluded that the PVSCD's proposal to
take fee title to certain properties was unwarranted. Once the
statutory power of eminent domain has been conferred upon an
agency, a court's inquiry into the scope of such power is limited
solely to the question of whether it is to be exercised in order to
provide a public service.
As we have already pointed out, the lower court did in
fact find that the PVSCD sought to exercise its statutory right of
eminent domain in order to provide a public service. In syllabus
point 3 of Pittsburg Hydro-Electric Co. v. Liston, 70 W.Va. 83, 73
S.E. 86 (1911), this Court stated that in eminent domain
proceedings, "[c]ourts are limited in their inquiry to the question
whether the particular service provided for is a public service."
(Emphasis added.) "Whether it is expedient, appropriate, or
necessary to provide for a public service of a particular kind or
character is a legislative, not a judicial, question." Id. at syl.
pt. 2. In Charleston Natural Gas Co. v. Low, et al., 52 W.Va. 662,
664, 44 S.E. 410, 411 (1901), we continued:
When the court has determined that the use for which property is condemned is a public use, its judicial function is gone, and the legislative discretion is unrestrained. Whether the proposed plan will accomplish the end proposed, or to what extent it will be beneficial to the public, are not matters to be determined by the courts. These are matters belonging to the legislative discretion.
Citing Varner v. Martin, 21 W.Va. 534 (W.Va. 1883); see also, State
v. Professional Realty Co., 144 W.Va. 652, 110 S.E.2d 616, 620
This Court has also addressed the question of the amount
of land that an agency can take in a condemnation proceeding. In
syllabus point 1 of Mr. Klean Car Wash, Inc. v. Ritchie, 161 W.Va.
615, 244 S.E.2d 553 (1978), we recognized that "'[t]he sole
discretion to determine what quantity of land is necessary for a
public use is vested in the agency resorting to eminent domain,
which discretion will not be interfered with by the courts unless
it has been abused.' Syllabus Point 2, State v. Bouchelle, 137
W.Va. 572, 73 S.E.2d 432 (1952)." We also stated that "'[a]ny
corporation or body politic authorized to acquire private property
for public use pursuant to the provisions of Chapter 54, Code,
1931, as amended, may acquire an estate in fee simple, or any
lesser estate therein.' Syllabus Point 4, Board of Education v.
Shafer, 147 W.Va. 15, 124 S.E.2d 334 (1962)." Syl. pt. 2, Mr.
Klean Car Wash, Inc. v. Ritchie, 161 W.Va. 615, 244 S.E.2d 553
(1978). In this case, there is no evidence that the PVSCD abused
its discretion in its decisions regarding the land acquisitions in
question. Under the circumstances, we believe the decisions made
by the PVSCD were reasonable and in no way arbitrary or capricious.
The circuit court's second and third objections to the
PVSCD's proposal related to the size and use of the permanent pool.
The court found that the PVSCD abused its discretion because the
proposed sixty-six acre area "greatly exceeds that necessary to
accomplish [the PVSCD's] purposes." The lower court also
determined that recreation was the primary purpose of the permanent
pool, and that the pool was to be used only incidentally for a
We disagree with the lower court's finding that the PVSCD
abused its discretion in that it attempted to condemn land for
recreational purposes by proposing a permanent flood pool in excess
of the project's flood control purposes. The PVSCD maintains that
the size of the lake was determined "purely by engineering
necessity in order to provide the needed flood protection," and
that a secondary and incidental use of the pool may be for public
fishing. Although the PVSCD presented some evidence which
indicated a need for a sixty-six acre pool,See footnote 5 the appellees offered
nothing to contradict these specifications. According to the
PVSCD, this issue was never even disputed in the proceedings below,
and we believe that it was wrongly utilized by the court below as
a major basis for its denial of the condemnation applications.
For the foregoing reasons, the August 26, 1991, order of
the Circuit Court of Hardy County is reversed.
Footnote: 1Altogether, there are fourteen soil conservation districts statewide which are created under W.Va. Code § 19-21A-2(d) (1991). The State Soil Conservation Committee (SSCC), comprised of three appointed and four designated members, obtains state funding and coordinates the activities of the districts. The federal Soil Conservation Service provides federal funding and technical assistance.
Footnote: 2The original planning for the project began in 1968, and actual operations were authorized on February 11, 1975.
Footnote: 3The intervenors have no legal interest in the real estate being sought in the applications for rights-of-entry.
Footnote: 4Under W.Va. Code § 19-21A-8(5), the PVSCD has the power ". . . to institute condemnation proceedings to acquire any property, real or personal, or rights or interests therein, . . . required for works of improvement; to construct, improve, operate and maintain such structures as may be necessary . . . ."
Footnote: 5James Clevenger, the leader of this project on the SCS Water Resources Planning staff, testified as to the means by which the engineering and technical analysis was undertaken in order to determine the size and location of the flood control structure. The PVSCD states that if it had known that the size of the permanent pool would be an issue or of concern to the circuit court, or if it had been raised by the opposition, then "[t]he PVSCD could and would have provided extensive testimony with regard to why the permanent impoundment must be 66 acres."