West Virginia Eminent Domain laws

The United States of America, the state of West Virginia, and every corporate body politic heretofore or hereafter created by the Constitution or statutes of the State, and every corporation heretofore or hereafter organized under the laws of, or authorized to transact business in, the State, for any purpose of internal improvement for which private property may be taken or damaged for public use as authorized in section two of this article, shall have the right of eminent domain and may exercise the same to the extent and in the manner provided in this chapter, and subject to the restrictions and limitations provided by law[i].

Prior to initiation of any condemnation proceeding pursuant to slum and blight, the applicant must make a reasonable attempt to notify all parties subject to a petition for condemnation provided in section two of this article and attempt to enter into negotiations for purchase of the property with the owners.  The applicant shall make an offer in good faith for the purchase of the property subject to the condemnation prior to initiation of the condemnation proceeding[ii].

Any incorporated company or body politic invested with the power of eminent domain under this chapter, by its officers, servants and agents may enter upon lands for the purpose of examining the same, surveying and laying out the lands, ways and easements which it desires to appropriate, provided no injury be done to the owner or possessor of the land; but no company or body politic, under the authority of this section, shall throw open fences or inclosures on any land, or construct its works through or upon the same, or in any way injure the property of the owner or possessor, without his/her consent, until it shall have obtained the right so to do in the manner provided in this chapter[iii].

In any case in which property may lawfully be taken for a public use, application may be made by petition to the circuit court or the judge thereof in vacation, of the county in which the estate is situated, to appoint commissioners to ascertain a just compensation to the owners of the estate proposed to be taken.  If a tract lies partly in one county and partly in another, the application in relation thereto may be made in either county[iv].  At the time of the filing of an eminent domain petition, the applicant may file a notice of the pendency of such proceeding as provided in section two [§ 55-11-2], article eleven, chapter fifty-five of this code, containing the information therein required so far as the provisions therein are applicable.  From the time of such filing, every purchaser or encumbrancer whose conveyance or encumbrance is not then recorded or docketed shall be deemed a subsequent purchaser or encumbrancer and shall be bound by the proceeding to the same extent and in the same manner as if he were a party therein[v].

If the report of the commissioners includes any sum for damages, in addition to the sum for just compensation for the property, or interest or right therein, proposed to be taken, the commissioners shall, if the owner or owners of the property request the same, state in their report what sum has been fixed as damages[vi].  Except as otherwise provided in this article, at any time within three months after the report, or the verdict of a jury, if there be one, has been confirmed and ordered to be recorded, the sum so ascertained with ten percent interest thereon from the date of the filing of the petition until payment, may be paid by the applicant into court; upon such payment, title to the property, or interest or right therein, so paid for, shall be absolutely vested in the applicant in fee simple or to the extent described in the petition; provided, that in the case of a public road, title to the right-of-way only shall absolutely vest in the applicant[vii].

After such a report has once been made, whether it be set aside, recommitted, or new commissioners appointed, or not, or whether a trial by jury be demanded and had or not, the applicant upon paying into court the sum ascertained by such report, with ten percent interest thereon from the date of the filing of the petition until payment, may, notwithstanding the pendency of further proceedings, enter upon, take and use for the purposes specified in the application, that part of the land and property in respect to which such payment is made, and where such payment has been made and possession taken, or where payment has been made without taking such possession in a pending case, it shall have the same effect as if such payment were made or possession taken, or both, in a case hereafter commenced; and no order shall be made or any injunction awarded by any court or judge to stay it in so doing, unless it be manifest that the applicant is insolvent or that it or its officers, agents or servants, are transcending their authority, or that such interposition is necessary to prevent injury which cannot be adequately compensated in damages; provided, that if the applicant be other than a corporate body politic, before entering upon or taking possession of such property, it shall enter into bond before the court, or judge thereof in vacation, in a penalty prescribed by the judge, with securities approved by him, conditioned for the payment to the owner of any additional sums which may be awarded against it in subsequent proceedings as additional compensation and damages for the property so taken.  Where, under authority of section ten, article one of this chapter, wood, earth, gravel, shale, stone, water or other material is sought to be taken, impounded or consumed, the applicant, after such report has been made, whether it be set aside, recommitted or new commissioners appointed, or not, or whether a trial by jury be demanded and had, or not, may, upon payment into court as aforesaid of the sum ascertained by the report of such commissioners, notwithstanding the pendency of further proceedings, take, impound or consume such wood, earth, gravel, shale, stone, water or other material; and all the foregoing provisions of this section as to injunction and bond shall be applicable to such case[viii].

If 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.  The revenues applicable to the payment of any damages or compensation to which the owner is entitled and which shall be awarded or assessed in his favor, shall be deemed sufficient security and to have been pledged for such payment, and no bond or further security shall be required of the applicant.

If the applicant shall enter upon or take possession of property under the authority of this section and shall do any work thereon and injure such land or property, it shall not be entitled, without the consent of the defendant, to abandon the proceedings for the condemnation thereof, but such proceedings shall proceed to final award or judgment, and the applicant shall pay to the owner of the land the amount of compensation and damages as finally determined in such proceedings, with interest at ten percent from the date of the filing of the petition.  Before entry, taking possession, appropriation, or use, the applicant shall pay into court such sum as it shall estimate to be the fair value of the property, or estate, right, or interest therein, sought to be condemned, including, where applicable, the damages, if any, to the residue beyond the benefits, if any, to such residue, by reason of the taking.  When, after payment into court as provided under the authority of this section, the amount allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be one, exceeds the amount which has been paid into court, the excess amount, together with interest thereon at ten percent from the date of the filing of the petition to the date of payment of the excess amount into court, may, at any time within three months after the report or verdict of a jury, as the case may be, has been confirmed and ordered to be recorded, be paid into court by the applicant for the persons entitled thereto.

If the amount which has been paid into court pursuant to this section exceeds the amount allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be one, the excess shall be repaid to the applicant out of such fund in court, or, if the amount remaining in the fund be insufficient, then the persons to whom the fund, or any part thereof, has been paid, shall reimburse the applicant, on a pro rata basis, but without interest.  If the amount allowed by the report of the condemnation commissioners, or the verdict of the jury, if there be one, does not exceed the sum paid into court and it shall appear that the latter amount was tendered by the applicant to the defendant prior to the institution of the proceeding, the defendant shall pay the costs of the proceeding in the trial court unless the refusal to accept the tender was based on some ground other than that of insufficiency of compensation and any damages[ix].

[i] W. Va. Code § 54-1-1.

[ii] W. Va. Code § 54-1-2a.

[iii] W. Va. Code § 54-1-3.

[iv] W. Va. Code § 54-2-1.

[v] W. Va. Code § 54-2-4a.

[vi] W. Va. Code § 54-2-9a.

[vii] W. Va. Code § 54-2-12.

[viii] W. Va. Code § 54-2-13.

[ix] W. Va. Code § 54-2-14.


Inside West Virginia Eminent Domain laws