Check out the unusual facts in the West Virginia Supreme Court of Appeals’ opinion in Scherich v. Wheeling Creed Watershed Protection and Flood Prevention Comm’n, No. 19-1065 (Mar. 15, 2021).
This started back in 1990, when the Commission instituted a condemnation action to take two parcels belonging to the Scheriches for a dam, as part of a flood prevention project. Okay, nothing too unusual there. The Commission deposited $97k (its estimate of just comp), the owners objected to the amount, and the court approved the quick take. Defeasible title transferred to the Commission, subject to the adjudication of the actual just compensation owed. The owners withdrew the deposit. Again, nothing out of the ordinary there.
But “[f]ollowing such payment, nothing further occurred in the matter for nearly three decades.” Slip op. at 4. Twenty-eight years to be exact. Flash forward to 2018. Someone noticed something. Hey, whatever happened in that quick take from 1990? So the owners filed a motion asking the trial court to pick up the 3-decade thread (and dust off the still pending file), and, you know, determine just comp, vest indefeasible title in the Commission, and wrap things up.
The trial court asked the question you and I would probably ask: what the heck is this? The court sua sponte concluded the case was concluded, estoppel, laches, statutes of limitation and repose, accord and satisfaction, and all that. Slip op. at 4. Given the gap, not an unreasonable conclusion perhaps, in a 28 year old civil case that didn’t appear to have been prosecuted diligently.
Ah, but this is eminent domain, not a typical civil case. The property owners appealed. [Barista’s note: one suspects that the owners calculated that the $97k was not the full amount owed by the Commission, and that ultimately, the owners were due the difference plus a whopping thirty years of interest; let’s hope they were correct, because if the deposit was more than actual adjudicated compensation owed to the Scheriches, they’re risking payment of interest to the Commission on the overage.]
The West Virginia Supreme Court reversed. The trial court abused its discretion by dismissing the case for being stale.
First, the court should not have “blindsided” the parties by sua sponte dismissing. Notice and opportunity to be heard should have been provided. Score a point for procedural due process.
Second, the Supreme Court concluded the condemnation had not been concluded. The owners challenged the public use and the necessity of the taking as well as the amount of compensation ultimately owed. The court concluded that the public use and necessity challenges were indeed resolved back in 1990 with the trial court’s order that the taking was for a public use or purpose as part of the quick take determination. But on just comp, a different result. Yes, they withdrew the deposit, but that didn’t end the contest. The Supreme Court concluded that it is the condemnor’s burden to ensure that the condemnation actually takes place, even though under West Virginia law, the owner has the burden of proof on just comp and residue damage [really, W.Va, you need to revisit that one]. But quick take isn’t a transfer of full title. “An examination of our codified condemnation procedure reveals that the plain meaning of West Virginia Code § 54-2-14a places the burden of moving forward and ensuring conclusion of a condemnation proceeding upon the condemning authority.” Slip op. at 13 (footnote omitted).
So the Commission “cannot simply walk away from its obligations and point the fault at the landowner as to why the condemnation proceeding has not been completed.” Slip. op. at 17.
Thus, when we take all of the provisions of West Virginia Code § 54-2-14a together we reach the inescapable conclusion that the condemning authority has the burden of ensuring that the condemnation action it initiated is brought to a conclusion. The inability to abandon a proceeding once filed, coupled with the harsh assessment of ten percent interest per year, and the lack of absolute title until a proceeding is concluded all point to the intention of our Legislature to zealously protect the public’s fisc and discourage a condemning authority from allowing a condemnation proceeding to drag on forever.
Slip op. at 18.
Finally, the owners’ withdrawal of the deposit of estimate comp was not an accord and satisfaction. You can withdraw the deposit and maintain your claim that it wasn’t enough.