In West Virginia, mineral rights can be owned separately from the surface estate. Not that unusual; something we learned in the first year of law school, in Property I. You might assume that condemning agencies' lawyers in West Virginia and similar jurisdictions understand this, and counsel their clients accordingly.
Or maybe not, once you read the opinion of the West Virginia Supreme Court of Appeals in West Virginia Dep't of Transportation v. Newton, No. 14-0428 (May 13, 2015).
Mr. Butler owned the surface, but Ms. Newton owned the mineral rights. The DOT was building a highway, and asked Mr. Butler whether it could enter his land to test it. He said yes. The DOT condemned and paid him for the land it needed for its highway project. But it also mined and took limestone for the road from the land. Did the DOT assume that Mr. Butler also owned the mineral rights? Was there some other reason that it didn't ask Ms. Butler? We don't know.
We do know that Ms. Butler did not approve. She brought a mandamus action to compel the DOT to institute eminent domain proceedings. Trial court concluded that the DOT should have condemned her interests. The DOT filed an eminent domain action. The valuation date was established as the date the DOT filed its eminent domain complaint. After valuation was established, the DOT appealed, asserting, among other arguments, that the trial court got the date of valuation wrong. The DOT's argument was "convoluted" (we all understand that, generally speaking, the date of the take is the date of valuation), and as best we can tell, its argument was that the date of valuation should have been earlier, when it actually mined and took the limestone. Perhaps the market value of limestone was lesser then than later. We don't know for sure.
The Supreme Court of Appeals of West Virginia affirmed the trial court's conclusion that the DOT acted in bad faith when it mined and removed Newton's limestone for use in a highway project without her permission. Slip op. at 14 ("We also do not believe that, for purposes of the date of the take, it is relevant as to whether DOH’s conduct was in bad faith or an honest mistake. The controlling fact is that DOH did not seek to condemn the limestone it took until after the property was removed and used in helping to build the highway.").
The Supreme Court resolved each of the DOT's eight other points of error in favor of Ms. Newton, also. Not groundbreaking stuff, but perhaps worth a quick read.