IN THE CIRCUIT COURT OF RALEIGH COUNTY, WEST VIRGINIA
UPON PROCEEDINGS TO CONDEMN LAND FOR PUBLIC USE.
PROJECT NO. X341-ZWA/Y-1.00 02, STP-0019(428)D
PARCEL NO. 113
CIVIL ACTION NO.CC-41-2022-C-149
JUDGE: Kirkpatrick
WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, a State Agency,
Petitioner,
vs.
R&D OF DANIELS, LLC, a West Virginia Limited Liability Company; TRUIST BANK, a North Carolina Corporation doing business in West Virginia; BB&T COLLATERAL SERVICE CORPORATION, a West Virginia Corporation; APPALACHIAN POWER COMPANY, a Virginia Corporation; FRONTIER WEST VIRGINIA INC., a West Virginia Corporation, successor to Chesapeake and Potomac Telephone Company; SHADY SPRING PUBLIC SERVICE DISTRICT; DOY INCORPORATED, a West Virginia Corporation formerly authorized to do business in West Virginia; BECKLEY WATER COMPANY, a West Virginia Corporation; MONONGAHELA POWER COMPANY, an Ohio Corporation doing business as West Virginia Power Gas Service; AQUILA, INC. a Delaware Corporation formerly authorized to do business in West Virginia and formerly Utilicorp United, Inc. doing business as West Virginia Power Gas Service and; SCOTT F. VAN METER Sheriff of Raleigh County,
Defendants.
ORDER OF PUBLICATION
The object of the above-entitled action is to condemn certain real estate for public purposes under the provisions of Code ยง54-2-14a of the Official Code of the State of West Virginia of 1931 as amended, from among those entitled thereto. You, and each of you, are hereby notified that on or about the 5th day of May 2022 a proper Application in condemnation was filed with the Clerk of the Circuit Court of Raleigh County, West Virginia. A copy of said Application may be obtained from the Clerk’s Office.
You are also notified that on the 23rd day of June 2022, at 2:30 O’clock p.m., or at such time thereafter as the case may be heard, the above-styled matter will come on for hearing upon the heretofore filed Motion for Entry of Order of Defeasible Title, before the Honorable H.L. Kirkpatrick III, Judge of the Circuit Court of Raleigh County at the Raleigh County Courthouse at 222 Main Street Beckley, WV 25801.
You are further notified that on the above-stated date or at such later time to be noticed, further petition will be made upon the said Application by the undersigned on behalf of the Petitioner, the West Virginia Department of Transportation, Division of Highways, a state agency, under the laws of the State of West Virginia, to the Circuit Court of Raleigh County, West Virginia, in the courtroom of the Honorable Judge of the Circuit Court to which this action is assigned, at a session of said Circuit Court, or in vacation thereof, to be then held at the Circuit Clerk’s Office at the Courthouse of said County, for:
(1) The appointment of Commissioners, as provided by statute, to ascertain a just compensation for the appropriated land described or referred to, as well as any damages to the residue of your lands not condemned, less all benefits that may be derived in respect to such residue from the purpose to which said land taken is to be appropriated;
(2) The setting of a date for the convening of said Commissioners to view said real estate and to hear the evidence which may be offered by any party in interest, as provided by law; and/or
(3) Petition may be made for such further orders and proceedings to be then and there entered and had, as may be necessary to condemn the right-of-way and easements in, over and through said lands for public road purposes, all of which are more particularly described in said Application.
The lands over, through and from which said rights of way and easements for the public purposes are proposed to be taken in this proceeding shall include the specific rights of way and easements herein sought and shall extend to such width and depth as may be authorized by Chapter 17, Article 2A, Section 17 of the Official Code of West Virginia of 1931, as amended, together with all materials therein, and the same is located in Shady Spring District, Raleigh County, West Virginia being more particularly bounded and described as follows:
NONCONTROLLED ACCESS RIGHT OF WAY
BEGINNING at a point in the division between Carl Edwin Massey and R&D of Daniels, LLC, said point being in the northern existing right of way line of Kayo Lane and 56 feet radially right of relocated US Route 19 centerline at Station 259+14, Project X341-ZWA/Y-1.00 02, STP-0019(428)D, Raleigh County, West Virginia;
thence, westerly, meandering with said existing right of way line 39 feet, more or less, to a point in the division line between Michael E. Meador, et ux. and R&D of Daniels, LLC, said point being 35 feet radially right of centerline at Station 259+46;
thence, northeasterly, with said division line 61 feet, more or less, to a point in the northern proposed noncontrolled access right of way line of Regency Drive, said point being 96 feet radially right of centerline at Station 259+39;
thence, southeasterly, with said proposed noncontrolled access right of way line 30 feet, more or less, to a point in the division line between Carl Edwin Massey and R&D of Daniels, LLC, said point being 96 feet radially right of centerline at Station 259+11;
thence, southwesterly, with said division line 40 feet, more or less, to the place of beginning and containing 1,505 square feet (0.04 acres), more or less.
The tract of land hereinabove described is a portion of that same real estate conveyed unto R&D of Daniels, LLC, a West Virginia limited liability company, from Leon K. Oxley, by deed dated September 1, 2010, of record in the Office of the Clerk of the County Commission of Raleigh County, West Virginia, in Deed Book 5042, at Page 1153.
Certain persons appear of record as lienors, encumbrancers or claimants of said lands as follows:
a. The Sheriff of said County is made party hereto for any taxes that may be due, owing or otherwise constitute a lien upon the subject property.
b. Defendants Truist Bank and BB&T Collateral Service Corporation, are made parties hereto by virtue of that Credit Line Deed of Trust dated May 22, 2020, of record in the Office of the Clerk of the County Commission of Raleigh County, West Virginia in Trust Deed Book 5071 at Page 8034 and securing Truist Bank the sum of $700,000.00.
c. Appalachian Power Company is made a party hereto by virtue of the following:
1. Right of way dated April 8, 1987 and recorded in Deed Book 721 at Page 384 from Doy, Inc. to Appalachian Power Company conveying a right of way and easement for an electric power line or lines, and communication lines, in, on, along, through, over, and across the lands of the Grantor.
2. Right of way dated May 17, 1985 and recorded in Deed Book 697 at Page 428 from Doy, Inc. to Appalachian Power Company conveying a right of way and easement for an electric power line or lines, and communication lines, in, on, along, through, over, and across the lands of the Grantor.
3. Right of way dated February 24, 1969 and recorded in Deed Book 475 at Page 184 from Doy, Incorporated to Appalachian Power Company conveying a right of way and easement for an electric power line or lines, and communication lines, in, on, along, through, over and across the lands of the Grantor.
d. Defendant Frontier West Virginia Inc. is made a party hereto by virtue of the following:
1. Right of way dated September 27, 1982 and recorded in Deed Book 661 at Page 873 from Doy, Inc. to Chesapeake and Potomac Telephone Company conveying a right of way and easement to construct, operate, maintain, repair, replace and remove communication systems, including the necessary poles, braces, anchors, and guys, conduit and/or manholes, cables, wires and fixtures upon, underneath the surface, over and across the lands of Grantor.
2. Right of way dated July 13, 1979 and recorded in Deed Book 617 at Page 386 from Doy, Inc. to Chesapeake and Potomac Telephone Company conveying a right of way and easement to construct, operate, maintain, repair, replace and remove communication systems, including the necessary poles, braces, anchors, and guys, conduit and/or manholes, cables, wires and fixtures upon, underneath the surface, over and across the lands of Grantor.
3. Right of way dated June 13, 1969 and recorded in Deed Book 479 at Page 223 from Doy, Inc. to Chesapeake and Potomac Telephone Company conveying a right of way and easement to construct, operate, maintain, repair, replace and remove communication systems, including the necessary poles, braces, anchors, and guys, conduit and/or manholes, cables, wires and fixtures upon, underneath the surface, over and across the lands of Grantor.
e. Defendant Shady Spring Public Service District is made a party hereto by virtue of that instrument dated May 15, 1981 and recorded in Deed Book 659 at Page 185 from Doy, Inc. to Shady Spring Public Service District conveying a sewer line right of way 10 feet in width and a temporary construction easement and right of way 30 feet in width to construct said sewer.
f. Defendant Doy Incorporated or any unknown successor in interest is made a party hereto by virtue of the following:
1. Easement dated May 16, 1969, and recorded in Deed Book 477, at Page 76 from Bessie May Massey and J.C. Massey, her husband, to Doy Incorporated conveying a right of way and easement to construct, operate, maintain, repair, replace and remove certain pipelines for the transportation of gas and/or water upon, underneath the surface, over and across the lands of the Grantor.
2. Matters and conditions set forth and depicted on the map entitled “Plat Showing Tracts Situated at Daniels, Shady Spring District, Raleigh County, West Virginia Standing in the Name of Doy Incorporated,” prepared by James E. Cook, P.E., dated May 6, 1986, and attached to the Deed and Assumption Agreement dated April 27, 1995, and recorded in the Clerk’s office in Deed Roll 73, at Page 1383, from Park Investments Associates to R&D Limited Liability Company and Deed dated August 25, 1988, and recorded in Deed Book 737, at Page 59, from Doy Incorporated to Park Investment Associates.
g. Defendant Beckley Water Company is made a party hereto by virtue of that waterline easement dated August 10, 2012, and recorded in Deed Book 5048 at Page 2795 from R&D of Daniels, LLC to the Beckley Water Company granting an easement and 25-foot right of way for a pipeline to be installed, on, over, across, under and through the “subject tract” for the purpose of constructing, operating, maintaining, repairing, replacing, and removing the waterline and all appurtenances thereto.
h. Monongahela Power Company and Aquila, Inc. formerly Utilicorp United, Inc., are made parties hereto by virtue of both Defendants having been noted as having a trade name for West Virginia Power Gas Service, of which there is a right of way dated May 1, 1994, and recorded in Deed Roll 22 at Page 976 from Park Investments Associates, to West Virginia Power Gas Service, a/k/a WVPGS for a right of way and easement to lay, maintain, operate, protect, repair, replace, reduce or increase the size of, and remove pipelines for the transportation of liquid or gaseous hydrocarbons, including gas, together with such valves, drips, fittings, meters and similar appurtenances as may be necessary. Both Defendants are named herein to ensure notice of this take is provided to the appropriate holder of said tradename.
It appearing by affidavit filed in this action, that Defendant, Doy Incorporated, is a terminated West Virginia Corporation, whose president and agent for service of process is deceased and the existence and whereabouts of an agent cannot be ascertained. Also, that there are or may be persons, other than those named in the Application which may be interested in the subject matter of the action, and whose names are unknown to the Petitioner and who are, alternative to Doy Incorporated, made Defendant(s) by the general description of unknown successor in interest to said Doy Incorporated. It further appearing that Aquila, Inc. withdrew as a corporation in West Virginia, in approximately 2007, and as such, upon information and belief is a non-resident entity for which, other than the Secretary of State, no agent, or appointed or statutory agent or attorney in fact is found in the State upon whom service may be had.
It is therefore Ordered that any such Defendant desiring to assert an interest relative to the above-described property do appear and serve upon Charles Houdyschell Jr., Petitioner’s Attorney, whose address is P.O. Box 880, Huntington, WV 25712, an answer or other defense to the Application filed in this action on or before July 1, 2022, otherwise judgment by default will be taken against them at any time thereafter. A copy of said Application can be obtained from the undersigned Clerk at the Raleigh County Courthouse, 222 Main Street Beckley, WV 25801.
Entered this 6th day of May, 2022.
Paul H. Flanagan, Clerk
or by deputy
FILED | 5.6/2022 8:54 AM
CC-41-2022-C-149