IN THE CIRCUIT COURT OF RALEIGH COUNTY,
WEST VIRGINIA
Civil Action No.: 23-C-151
Honorable Judge
H.L. Kirkpatrick, Ill
RALEIGH COUNTY BOARD OF EDUCATION,
A subdivision of the State of West Virginia,
Petitioner,
v.
LEROY J. SORRELL, IDA ELIZABETH DAVIS, PATRICIA SCALES, DIANE WHITE OR THE HEIRS OF DIANE WHITE, MILDRED SORRELL OR THE HEIRS OF MILDRED SORRELL, Deceased, CHARLOTTE JOHNSON OR THE HEIRS OF CHARLOTTE JOHNSON, AND CALVIN COVINGTON OR THE HEIRS OF CALVIN
COVINGTON,
Respondents.
ORDER VESTING DEFEASIBLE TITLE AND SETTING STATUS CONFERENCE
On a prior day came the Petitioner, Raleigh County Board of Education, by counsel, James R. Sheatsley, and asked for leave to pay into the Court the sum of TWENTY-ONE THOUSAND DOLLARS ($21,000.00) which sum the Petitioner estimates to be the fair value of the property or estate right or interests therein sought to be condemned in this proceeding as a result of the public-school construction project below mentioned. There also appeared the following parties in interest prose: Patricia Scales, Ida Elizabeth Davis and Jesse Davis.
Raleigh County Board of Education is a subdivision of the State of West Virginia as contemplated by West Virginia Code § 54-1-2(a) and 54-2-14a and has reasonably determined that the property sought to be condemned in this proceeding is necessary for the construction and proper operation of the “new” Stratton Elementary School.
The question of determining a public use is always one of law. Gomez v. Kanawha County Com’n, 237 W. Va. 451; 787 S.E.2d 904, syl. no. 2 (2016). This Court is charged with determining, as a matter of law, whether Raleigh County Board of Education has a lawful right to take property for the purposes stated in the condemnation petition and if the applicant’s expressed use of the property is, in fact, a public one. “To qualify as a lawful public use is simple: ‘The public must have some direct and certain right, or interest in it, or control over it.” Gomez at 913, citing Pittsburg Hydro-Elec. Co. v. Liston, 70 W.Va. 83, 88, 72 S.E. 86, 90 (1911 ). “In the absence of egregious bad faith, if the use is a public one, the necessity for the designated property is not open to judicial review.” Gomez at 913, citing United States v. 49. 79 Acres of Land, 582 F.Supp. 368, 372 (D. Del.
1983). Further, “[o]nce the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.” Gomez at 913, fn. 28, citing Berman v. Parker, 348 U.S. 26, 35-36, 75 S.Ct. 98, 104, 99 L.Ed. 27 (1954).
The Court finds that the above-referenced project is for a public use. The powers of the Raleigh County Board of Education enumerated under W.Va. Code § 18-5-5 and § 18-5-8 and the plans described in open Court for the school construction establish that the taking of the subject property is for the construction of a public school. The Court further finds that the Petition identifies that the land to be taken is for a public use. Finally, the Court finds that because the land to be taken is for a public use and the Raleigh County Board of Education is empowered to take such land reasonably necessary for a public use, this Court is prohibited from interfering with or disturbing the decision of the Raleigh County Board of Education regarding “the amount and character of land to be taken for the project” as stated in Gomez, fn. 28. As such, the Court finds that the Petition and the land identified therein to be taken is for a public use and that this Court as a matter of law must grant Raleigh County Board of Education immediate entry to and onto the land for the purposes identified in the Petition.
Accordingly, the Court finds that upon deposit of its fair estimate of just compensation, Raleigh County Board of Education has the right to take the property of the Respondents named in the Petition for the public use, which will be part of the county school system and maintained by Raleigh County Board of Education for the benefit of the public. It appearing to the Court this case is one in which the Petitioner has lawful right to take private property for public purposes stated, and further the parties have not reached a settlement in this matter, therefore, it is ADJUDGED and ORDERED that Petitioner is permitted to pay the sum of TWENTY-ONE THOUSAND DOLLARS ($21,000.00) to the Clerk of this Court for the use of the Respondents in this action and/or other lawful claimants, said funds to be distributed by the Clerk to the parties entitled thereto as directed by further order of this Court.
It is thereby accordingly ADJUDGED and ORDERED that Petitioner, its agents, employees and contractors, upon deposit of the said sum of TWENTY-ONE THOUSAND DOLLARS ($21,000.00) are permitted at once to enter upon, take possession of, appropriate and use the land to the extent and for the public road purposes stated and set forth in the Petition, that the title to that certain tract or parcel of land described in the Petition filed in this case is hereby vested in the Raleigh County Board of Education, the same being more particularly bounded and described as follows:
That certain parcel which lies wholly in Town District, Raleigh County, West Virginia and is described as being Lot 111 of the Wildwood Addition to the City of Beckley, Beckley Municipal District, Tax Map 40, Parcel 100.1.
As represented by the Petitioner and documented by the Notice of Publication and certified mail return receipt cards filed in this action, several owners of interests in the subject real estate and potentially unknown owners of fractional interests in the real estate may only be properly served under West Virginia Law by publication. Two (2) owners of property interests, Ms. Davis and Ms. Scales were present before the Court. The Court noted that both individuals on the record made no objection to the relief sought by the Petitioner at the hearing of June 1, 2023. Ms. Scales and Ms. Davis advised the Court that they were two (2) of the three (3) parties who had negotiated a tentative sale price of the property with the Petitioner which formed the basis for the Petitioner’s estimate of just compensation. Ms. Scales and Ms. Davis also advised the Court that their brother, Mr. Sorrells, who had also participated in the negotiations, had become deceased within the last year and because only these three (3) individuals were participants in the negotiations with the Petitioner regarding a value of the property, the Court FINDS that the parties in interest are entitled to notification of a status hearing to confirm that said known and unknown individuals, as pro se Respondents, are aware of their rights to dispute the estimated fair compensation to be paid to the Court by the Petitioner and/or seek a hearing before condemnation commissioners.
It is further ORDERED that a copy of this Order be certified by the Clerk of this Court and be provided to the following:
1. The Clerk of the County Commission of this County to be recorded and indexed in the proper deed book of said County in the same manner as deeds are required to be recorded and indexed as provided by law and the recorded copy thereof to be returned to James R. Sheatsley, Gorman, Sheatsley and Company, L.C., 343 Prince Street, Beckley, West Virginia 25801.
2. One certified copy to counsel for Petitioner, James R. Sheatsley, Gorman, Sheatsley and Company, L.C., 343 Prince Street, Beckley, West Virginia 25801.
3. A certified copy to each of the Respondents who appeared at the hearing to wit: Patricia Scales, Ida Elizabeth Davis and Jesse Davis.
The Court FURTHER ORDERS:
1. All interested parties shall come on for a status conference in these proceedings to be held on the 13th day of July, 2023 at 10:00 a.m. at which status conference all parties receiving notice, whether prose or represented by counsel, will be given an opportunity to voice to the Court whether or not any such individual desires to challenge the Petitioner’s estimate of just compensation.
2. The Petitioner is hereby ordered / authorized to issue an additional notice of publication in the Beckley Register Herald, the newspaper of general circulation, regarding the scheduled status conference of July 13, 2023 and the purposes for such hearing.
3. In the event no respondent or unknown party in interest seeks any hearings to challenge the Petitioner’s statement of just compensation, this matter shall proceed to further hearings as scheduled by the Court with regard to the distribution of the just compensation funds to be paid by the Petitioner to the Circuit Clerk of Raleigh County pursuant to this Court’s Order.
Prepared for Entry By:
/s/ James R. Sheatsley
/s/ Amy Vickers Fritz
James R. Sheatsley (WVBN 3359)
Amy Vickers Fritz (WVBN 6682)
GORMAN, SHEATSLEY &
COMPANY
PO Box 5518 — 343 Prince Street
Beckley, WV 25801
Phone: (304) 252-5321
IN THE CIRCUIT COURT OF RALEIGH COUNTY,
WEST VIRGINIA
Civil Action No.: 23-C-151
Honorable Judge
H.L. Kirkpatrick, Ill
RALEIGH COUNTY BOARD OF EDUCATION,
A subdivision of the State of West Virginia,
Petitioner,
V.
LEROY J. SORRELL, IDA ELIZABETH DAVIS, PATRICIA SCALES, DIANE WHITE OR THE HEIRS OF DIANE WHITE, MILDRED SORRELL OR THE HEIRS OF MILDRED SORRELL, Deceased, CHARLOTTE JOHNSON OR THE HEIRS OF CHARLOTTE JOHNSON, AND CALVIN COVINGTON OR THE HEIRS OF CALVIN
COVINGTON,
Respondents.
NOTICE OF DEPOSIT AND
STATUS CONFERENCE
TO THE ABOVE-NAMED
RESPONDENTS:
You are hereby notified pursuant to an Order entered in the Circuit Court of Raleigh County, West Virginia, on the 7th day of June, 2023, in the above captioned case, the Raleigh County Board of Education, Petitioner in said case, did on the 7th day of June, 2023, pay the sum of TWENTY-ONE THOUSAND DOLLARS ($21,000.00) to the Clerk of said Court, said sum representing Petitioner’s estimate of just compensation owed to the Respondents for the fair value of the property, estate, right, or interest therein, sought to be condemned, including the damages, if any, to the residue, if any, beyond the benefits to such residue accruing by reason of the taking.
The Clerk of said Circuit Court will distribute said sum of money to the person or persons entitled thereto in such proportions as are properly payable on being directed to do so by further order of the Court.
A Petition may be filed by any interested party requesting a distribution of said money in accordance with the provisions of Chapter 54, Article 2, Section 18 of the Official Code of West Virginia, 1931, as amended.
The Court has scheduled a status conference on this issue for July 13, 2023 at 10:00 a.m. which hearing all parties may attend to protect their interests.
Raleigh County Board of
Education,
By Counsel,
/s/ James R. Sheatsley
/s/ Amy Vickers Fritz
James R. Sheatsley (WVBN 3359)
Amy Vickers Fritz (WVBN 6682)
GORMAN, SHEATSLEY &
COMPANY
PO Box 5518 — 343 Prince Street
Beckley, WV 25801
Phone: (304) 252-5321
ID: 714673