This case -- a related case, actually -- has been up to the West Virginia Supreme Court before. See "West Virginia: DOT Should Not Have Mined Privately Owned Limestone Without Owner's Permission." But even though the underlying facts were the same (the DOT mined limestone from private property without first buying it from the landowner), the issues presented in West Virginia Dep't of Transportation v. Veach, No. 16-0326 (Apr. 17, 2017) were somewhat different.
In Veach, after the Supreme Court affirmed the earlier case, DOT's new counsel sought to repudiate a stipulation which prior counsel entered into with the property owners, by which the parties agreed that the landowner owned the limestone. DOT now argued that West Virginia law was that the state owned these mineral deposits, not private landowners.
The trial court rejected this tactic, and the Supreme Court affirmed. The DOT didn't show that the stipulation was fraudulent, or an accident or a mistake. The only "mistake" which DOT's new counsel pointed to was the "negligence of counsel in stipulating that the ownership of the limestone was not in dispute." Slip op. at 10. Not enough to set aside the stipulation, held the court:
Similarly, DOH should not be entitled to relief at this stage of the proceedings from stipulations entered when no evidence has been presented of the incompetence of prior counsel. Unlike the plaintiffs in Crafton, DOH is an experienced litigant in these types of cases and had its choice of counsel. Critically, DOH’s stipulation pertains to a substantive issue previously represented as undisputed as opposed to a procedural issue, like the one in Crafton. As discussed above, whether a stipulation relates to a procedural or substantive issue is a dominant consideration in determining whether rescission is appropriate as the latter carries with it more danger of prejudice.
Slip op. at 13. Nor did it matter than the stipulation might have been "contrary to controlling law." The law of West Virginia isn't all that settled on ownership of these rights, "and thus there is no 'controlling law.'" Slip op. at 13.
The court also addressed a second issue relating to the attorneys fees awarded by the trial court to the property owners. Because the trial court didn't schedule a hearing -- but instead simply awarded fees and costs to the owners after it concluded the DOT acted in bad faith -- the Supreme Court sent the case back down for a hearing.
West Virginia Dep't of Transportation, v. Veach, No. 16-0326 (W. Va. Apr. 17, 2017)
