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672 S.E.2d 234
No. 33869 Contractor Enterprise, Inc. v. West Virginia Department of Transportation,
Division of Highways
Benjamin, Justice, dissenting:
I dissent from the majority decision because the circuit court's decision to
permit the taking of this property is arbitrary and capricious, and in contradiction with
applicable federal rules and regulations.
In the case sub judice
, the original project plans did not refer to a waste site.
All bids received for this project were originally rejected by DOH. At the time of the final
hearing and judgment, no award had been made for this project. Testimony was taken during
the proceedings that indicated that the pattern, practice, and custom on road construction
projects generally and on this project in particular provided for the contractor to locate and
to purchase or lease waste material sites. After rejecting all bids the DOH changed the
project plans to state that CEI's property would be provided for a potential
waste site to be
used if the contractor so desires.
(See footnote 1)
It is a fundamental premise of eminent domain power that the property taken
will be used for a public purpose. Our precedent requires that before the government may
condemn a citizen's land, the taking must be deemed necessary to carry out a public purpose. F.R.B. Cemetery Association v. Redd
, 33 W. Va. 262, 10 S.E. 405 (1889)(An application
to condemn land for public use must distinctly state that the land is needed for public use,
and will, when condemned, be devoted to such public use). As a condition precedent to the
exercise of eminent domain powers it must be established that the taking is for public use,
that the taking is necessary to achieve that public use, that the use which the public is to have
is fixed, definite, and direct, and that the use which the public must have is a substantially
beneficial use. Gauly & S.R. Co. v. Vencill
, 73 W. Va. 650, 80 S.E. 1103 (1914); State v.
Professional Realty Co.
, 144 W. Va. 652, 110 S.E.2d 616 (1959); Charleston Natural Gas
Co. v. Lowe
, 52 W. Va. 662, 44 S.E. 410 (1901); see Vol. 7A Michie's Jurisprudence Eminent Domain
§§16-22; Nichols on Eminent Domain
(3d ed.) 62.07[c][ii].
Federal regulations prohibit the government from mandating a waste site in
the absence of specific findings as to the needs and propriety of doing so.
C.F.R. §635.407(g) specifically provides:
The contract provisions for one or a combination of Federal-aid
projects shall not specify a mandatory site for the disposal of surplus
excavated materials unless there is a finding by the State transportation
with the concurrence of the FHWA Division Administrator that such
placement is the most economical except
that the designation of a
mandatory site may be permitted based on environmental
considerations, provided the environment would be substantially
enhanced without excessive cost.
Title 23 C.F.R. §635.407(g) (Emphasis added). Because the use of the waste site at issue
and according to federal regulation and could not be, mandatory, it was not
necessary for a public purpose. Thus, it was not the proper subject of eminent domain
In assessing whether the taking was necessary for a public purpose, the circuit
court should have considered this federal regulation. The Supremacy Clause of the U.S.
Constitution, Article VI, requires that all courts in this State conform their decisions to
governing applicable federal law. It provides, in part, that [t]his Constitution, and the Laws
of the United States which shall be made in Pursuance thereof. . .shall be the supreme Law
of the Land; and the Judges in every State shall be bound thereby . . . Any state law that is
in conflict with federal law is nullified. Tipton v. Secretary of Educ. of United States
F.Supp. 540 (S.D. W.Va. 1991); Jones v. Credit Bureau of Huntington, Inc.
, 184 W. Va. 112,
399 S.E.2d 694 (1990); DK Excavating, Inc. v. Miano
, 209 W. Va. 406, 549 S.E.2d 280
The power of eminent domain is to be exercise with restraint, not abandon. Southwestern Illinois Development Authority v. National City Environmental, L.L.C.
N.E.2d 1 (2002). Thus, when construction plans delineate that a particular property may or
may not be used as a waste site, it is not certain that the property will in fact be used for a
public purpose, and thus, a taking under eminent domain is inappropriate.
The taking by DOT herein was both arbitrary and capricious and contrary to
the law. I therefore agree with and join Chief Justice Maynard in dissenting to the majority
Specifically, the modified construction plans provide that: Right of way, Right of
Station 361+00 is provided for a potential waste site to be used if the contractor so desires.
All design associated with the waste site including drainage and erosion and sediment control
shall be submitted to the Engineer for approval before using the waste site.