IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term

_______________ FILED
March 15, 2021
released at 3:00 p.m.
No. 19-1065 EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA

ORANGE SCHERICH, MARGARET SCHERICH,

THOMAS SCHERICH, and BERTHA SCHERICH,
Petitioners,

v.

WHEELING CREEK WATERSHED PROTECTION AND

FLOOD PREVENTION COMMISSION,
Respondent.
____________________________________________________________

Appeal from the Circuit Court of Marshall County

The Honorable David W. Hummel, Jr., Judge
Civil Action No. 90-C-229M

REVERSED AND REMANDED

WITH INSTRUCTIONS
____________________________________________________________

Submitted: January 26, 2021

Filed: March 15, 2021

Webster J. Arceneaux, III, Esq. Christian E. Turak, Esq.

James C. Stebbins, Esq. Gold, Khourey & Turak, L.C.
Ramonda C. Marling, Esq. Moundsville, West Virginia
James M. Becker, Esq. Counsel for Respondent
Lewis Glasser PLLC
Charleston, West Virginia

David C. Hook, Esq.

Hook & Hook
Counsel for Petitioners

JUSTICE ARMSTEAD delivered the Opinion of the Court.

 SYLLABUS BY THE COURT

1. “In a condemnation proceeding, the circuit court is charged with

determining whether the applicant has a lawful right to take property for the purposes stated

in the condemnation petition. The circuit court determines, as a matter of law, whether a

property may lawfully be taken. The property may lawfully be taken if the applicant’s

expressed use of the property is, in fact, a public one, and the condemnation is not impelled

by bad faith or arbitrary and capricious motives.” Syllabus Point 1, Gomez v. Kanawha

County Commission, 237 W. Va. 451, 787 S.E.2d 904 (2016).

2. West Virginia Code § 54-2-14a (1981) places the burden of ensuring

a condemnation action reaches its conclusion upon the condemning authority.

3. A person entitled to proceeds of a condemnation proceeding filed

pursuant to West Virginia Code § 54-2-14a (1981) has the legal right to accept the

condemning authority’s estimate of just compensation without prejudicing such person’s

right to challenge that amount.

i
Armstead, Justice:

Orange Scherich, Margaret Scherich, Thomas Scherich, and Bertha

Scherich 1 (“Petitioners”) appeal the Circuit Court of Marshall County’s final order

dismissing the underlying eminent domain action. In 1990, the Wheeling Creek Watershed

Protection and Flood Prevention Commission 2 (“Respondent”) filed a condemnation

proceeding under West Virginia’s quick-take statute against Petitioners’ property. See W.

Va. Code § 54-2-14a (1981). After Respondent asked for and received right of entry and

Petitioners asked for and received Respondent’s estimate of just compensation, in 1991,

the matter lay dormant for twenty-seven years.

In October 2018, Petitioners filed a “Motion for Further Proceedings to

Determine Just Compensation.” In response, the circuit court noticed and conducted a

status hearing “as a result of but not to address the” motion. During that status hearing,

without giving notice or the opportunity to respond, the circuit court sua sponte dismissed

this condemnation proceeding. In its final order, without citing to any legal authority, the

circuit court concluded that estoppel, laches, and any applicable statutes of limitation or

repose “prevent[ed Petitioners] from resurrecting this matter.” Additionally, the circuit

court sua sponte found that Petitioners’ withdrawal of Respondent’s estimate of just

1
It is alleged in the pleadings that three of the four named parties have passed
away and that only Bertha Scherich is still living. Upon remand, the circuit court should
determine the proper parties. See W. Va. Code § 54-2-2 (1957).

Respondent was created in 1967 by an interstate compact with the

2

Commonwealth of Pennsylvania. See W. Va. Code §§ 29-1F-1–5 (1967 & 1978).

1
compensation “without further proceedings until now [was] sufficient proof of accord and

satisfaction such that [Petitioners] have no further right or claim to this matter.” Petitioners

appealed the circuit court’s final order.

Upon review of the record, hearing the arguments of counsel, and copious

research of the pertinent legal authorities, we conclude that the circuit court erred.

Accordingly, for the reasons set forth below, we reverse and remand this matter for further

proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 1, 1990, Respondent filed a condemnation proceeding seeking

acquisition of two parcels of land owned by Petitioners, including all oil and gas rights.

These two parcels are designated by Respondent as Parcels 16 & 45, with Parcel 16

containing 220 ½ acres and Parcel 45 containing 15 acres and are located along Dunkard

Fork, a tributary of Wheeling Creek in Webster District, Marshall County, West Virginia.

According to the condemnation petition, these two parcels are “necessary . . . for the

purpose of constructing a dam structure and for provision of sufficient land surrounding

said dam for its construction, access thereto, and for a permanent pool, flood pool,

reservoir, and emergency spillway.” This dam is a part of a watershed-wide project to

protect persons and property from floods. In its condemnation petition, Respondent noted

that it intended to deposit its estimate of just compensation for the condemned property

with the clerk of the circuit court in the amount of $97,000.00, which estimate Respondent

2
averred to be “a fair value of the said land and all of the oil and gas appurtenant thereto,

including both the life estates and the remainder interests.”

Petitioners filed their answer to the condemnation petition on June 14, 1990,

in which they disputed Respondent’s estimate of just compensation and stated that

Respondent was “seeking to take excessive land beyond the needs for construction access

in the creation of permanent pool, flood pool, reservoir, and emergency spillway.”

Following Petitioners’ answer and after hearing arguments of counsel, the circuit court

entered an order on June 15, 1990, which allowed Respondent to deposit its estimate of

just compensation with the circuit clerk and “permitted [Respondent] to immediately

acquire title to, enter upon, take possession, appropriate and use the lands sought to be

condemned in this proceeding for the purposes stated in its [condemnation] Petition.” That

order further found that “the lands sought to be acquired in this proceeding are necessary

for [Respondent’s] use for the purposes aforesaid and are not in excess of the quantity

reasonably necessary for such purposes.” By operation of the provisions of West Virginia

Code § 54-2-14a, the title granted Respondent by that order was “defeasible until the

compensation and any damages are determined in the condemnation proceedings and

[Respondent] has paid any excess amount into court.” The order granting defeasible title

to Respondent was recorded on the same day in the Office of the Clerk of the County

Commission of Marshall County, West Virginia, in Deed Book 551 at Page 652.

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 On May 7, 1991, Petitioners moved to have Respondent’s estimate of just

compensation paid over to them. The circuit court entered an order on May 30, 1991,

directing the circuit clerk to pay the previously deposited monies over to Petitioners,

inclusive of interest that had accrued. The total amount paid over to Petitioners was

$101,963.07.

Following such payment, nothing further occurred in the matter for nearly

three decades. On October 3, 2018, Petitioners filed a “Motion for Further Proceedings to

Determine Just Compensation.” This motion sought to “conduct further proceedings in

this matter as are necessary to comport with the law and West Virginia Constitution” by

allowing Petitioners to challenge the taking of their oil and gas rights, determine just

compensation, and vest Respondent with indefeasible title. Following the filing of the

motion, the circuit court set a status hearing “as a result of but not to address” Petitioners’

motion.

However, at that status hearing, the circuit court proceeded to address

Petitioners’ motion, and, indeed, denied the motion. In its final order dated October 22,

2019, the circuit court found:

Given the time between the filing of [Petitioners’]

motion for further proceedings and the last activity in this
matter – a period of over twenty-seven years – the [c]ourt
FINDS that this matter has been concluded; and that any
claims of deficiency in the due process afforded the
[Petitioners was] waived by [Petitioners]. Furthermore, the
doctrines of estoppel and laches, as well as potentially any

4
 statute of limitation or repose, prevent [Petitioners] from
resurrecting this matter. Finally, the [c]ourt believes the
acceptance of the deposited funds, as evidenced by the last
order entered in this matter on May 30, 1991[,] disbursing such
funds to [Petitioners], without further proceedings until now,
is sufficient proof of accord and satisfaction such that
[Petitioners] have no further right or claim in this matter.

It is from entry of the final order that Petitioners appeal.

II. STANDARD OF REVIEW

This appeal is unusual in that the parties do not agree as to the applicable

standard of review. Petitioners allege that the final order was a dismissal pursuant to West

Virginia Rule of Civil Procedure 41(b), and that on review we must determine whether the

circuit court abused its discretion in issuing that order. See Syllabus Point 1, Tolliver v.

Maxey, 218 W. Va. 419, 624 S.E.2d 856 (2005). In Tolliver, we explained:

With regard to Rule 41(b), and its related statutory

provision, W. Va.Code, 56–8–12 (1923), the syllabus point
in Murray v. Roberts, 117 W.Va. 44, 183 S.E. 688 (1936),
holds:

A motion to reinstate a dismissed action

under the terms of Code, 56–8–12 [W. Va.
R.C.P. 41(b) ], is addressed to the sound
discretion of the trial court, and, in the absence
of a showing of abuse of that discretion, the
action of the trial court upon such motion will not
be disturbed upon writ of error. Higgs v.
Cunningham, 71 W.Va. 674, 77 S.E. 273 [1913].

Syl. pt. 1, Covington v. Smith, 213 W.Va. 309, 582 S.E.2d 756
(2003). See also, Syl. pt. 4, White Sulphur Springs v.
Jarrett, 124 W.Va. 486, 20 S.E.2d 794 (1942), holding that a
trial court, “upon a motion to reinstate a suit or action,
under Code, 56–8–12, is vested with a sound discretion with

5
 respect thereto; but that discretion can only operate on
evidence tending to establish facts upon which a finding can be
based.” Syl. pt. 1, Belington Bank v. Masketeers Company, 185
W.Va. 564, 408 S.E.2d 316 (1991); syl., Snyder v. Hicks, 170
W.Va. 281, 294 S.E.2d 83 (1982); 6A M.J., Dismissal,
Discontinuance and Nonsuit § 18 (2001).

Id., 218 W. Va. at 423, 624 S.E.2d at 860.

Respondent counters that the final order was a grant of summary judgment

pursuant to West Virginia Rule of Civil Procedure 56(c). Under this Rule, we have long

held that “[a] circuit court’s entry of summary judgment is reviewed de novo.” Syllabus

Point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

We do not have to resolve this disagreement in order to address the errors

assigned to the circuit court by this appeal because it is clear that, regardless of which

standard applies, the circuit court erred in sua sponte dismissing this matter without notice

to the parties and affording them the opportunity to be heard. The circuit court further

erred in concluding that Petitioners bore the burden of pursuing this matter and that their

claims were barred by accord and satisfaction.

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 III. ANALYSIS

A. Sua Sponte Dismissal

The text of Rule 41(b) of the West Virginia Rules of Civil Procedure

provides:

For failure of the plaintiff to prosecute or to comply with

these rules or any order of court, a defendant may move for
dismissal of an action or of any claim against the defendant.
Unless the court in its order for dismissal otherwise specifies,
a dismissal under this subdivision and any dismissal not
provided for in this rule, other than a dismissal for lack of
jurisdiction or for improper venue, operates as an adjudication
upon the merits.

Any court in which is pending an action wherein for

more than one year there has been no order or proceeding, or
wherein the plaintiff is delinquent in the payment of accrued
court costs, may, in its discretion, order such action to be struck
from its docket; and it shall thereby be discontinued. The court
may direct that such order be published in such newspaper as
the court may name. The court may, on motion, reinstate on its
trial docket any action dismissed under this rule, and set aside
any nonsuit that may be entered by reason of the
nonappearance of the plaintiff, within three terms after entry of
the order of dismissal or nonsuit; but an order of reinstatement
shall not be entered until the accrued costs are paid.

Before a court may dismiss an action under Rule 41(b),

notice and an opportunity to be heard must be given to all
parties of record.

7
W. Va. R. Civ. P. 41(b). 3 To comply with the last paragraph of this Rule, this Court has

established a series of eight guidelines. See Syllabus Point 3, Dimon v. Mansy, 198 W. Va.

40, 479 S.E.2d 339 (1996) (setting forth specific procedures for a circuit court to follow

when dismissing a matter under Rule 41(b)).

Correspondingly, under Rule 56(c) of West Virginia Rules of Civil

Procedure, summary judgment “shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” W. Va. R. Civ. P. 56(c). This Rule is silent as to whether

a circuit court can grant summary judgment on its own accord and we have held that

“[o]rdinarily, in the absence of a written motion for summary judgment by one of the

parties, the court is not authorized sua sponte to grant a summary judgment.” Syllabus

Point 2, Gavitt v. Swiger, 162 W. Va. 238, 248 S.E.2d 849 (1978), quoted in Syllabus Point

2, State ex rel. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hummel, ___ W. Va. ___,

850 S.E.2d 680 (2020). Nonetheless, a circuit court may sua sponte grant summary

judgment so long as notice and an opportunity to be heard are provided to the parties:

As a general rule, a trial court may not grant summary

judgment sua sponte on grounds not requested by the moving
party. An exception to this general rule exists when a trial court

3
This Rule of Civil Procedure provides that a “defendant may move for
dismissal” when a “plaintiff [fails] to prosecute” its claim. In this condemnation matter,
the Respondent is the “plaintiff” below, who urges this Court that dismissal was
appropriate, while the Petitioners, who are the “defendants” below, seek to maintain the
action.
8
 provides the adverse party reasonable notice and an
opportunity to address the grounds for which the court is sua
sponte considering granting summary judgment.

Syllabus Point 4, Loudin v. Nat’l Liab. & Fire Ins. Co., 228 W. Va. 34, 716 S.E.2d 696

(2011), quoted in Syllabus Point 3, Hummel.

Here, the circuit court neither gave notice of its intent to dispose of this matter

nor afforded Petitioners the opportunity to address the grounds upon which the circuit court

was considering for dismissal. The circuit court did not provide any analysis of the Dimon

factors and did not follow this Court’s decision in Loudin. In fact, when Petitioners filed

their motion, the circuit court specifically stated that the status hearing set in response was

“as a result of but not to address” the motion. By stating as such, the circuit court told all

parties that it was not going to take any substantive action on the pending motion and then

proceeded to do so. When Petitioners arrived for the status hearing and the circuit court

ruled, they were blindsided by the circuit court’s actions. Applying our prior law, we find

that the circuit court erred by failing to notify the parties of its intent to dispose of this

matter under either Rule 41(a) or Rule 56(c) and provide them a meaningful opportunity

to respond and be heard.

B. Substantive Errors Raised By This Appeal

Petitioners further allege that the circuit court erred in reaching several

specific conclusions contained in its October 22, 2019, order. Although we find that the

sua sponte dismissal of this action without notice and an opportunity to be heard requires

9
reversal of the circuit court’s order, we believe that other substantive errors contained in

the circuit court’s order must be addressed to aid the circuit court on remand.

Petitioners assert that the taking of their oil and gas was not necessary for

Respondent’s project and, by implication, exceeded the land needed for public use. The

parties also disagree as to who has the burden of seeing that a condemnation proceeding

reaches its final adjudication. Petitioners argue that is Respondent’s burden. Respondent

counters that this is Petitioners’ responsibility.

Petitioners also draw our attention to the doctrines espoused by the circuit

court to preclude further prosecution of this matter. These were: 1) estoppel, laches, and

any applicable statutes of limitation or repose “prevent[ed Petitioners] from resurrecting

this matter;” and 2) Petitioners’ withdrawal of Respondent’s estimate of just compensation

“without further proceedings until now [was] sufficient proof of accord and satisfaction.”

We will discuss each of these issues, in turn.

1. Public Use

The long-standing principle that the government may only take private

property for public use upon payment of just compensation is enshrined in both the United

States and West Virginia Constitutions. “[N]or shall private property be taken for public

use, without just compensation.” U.S. CONST. amend. V. “Private property shall not be

10
taken or damaged for public use, without just compensation.” W. Va. CONST. art. III, § 9.

The Legislature has conferred the right of eminent domain upon Respondent by statute.

See W. Va. Code § 29-1F-1, art. VI(c) (1978).

Respondent filed its condemnation proceeding pursuant to the provisions of

West Virginia Code § 54-2-14a. This statute allows a condemning authority to pay into

the circuit court its estimate of just compensation upon a finding of public use and gives

the condemning authority the right to enter and appropriate the property necessary for its

project. Id. Our previous cases refer to this point in the process as a “right of entry.” See,

e.g., State ex rel. W. Va. Dept. of Transp. v. Tucker, 241 W. Va. 307, 310, 824 S.E.2d 534,

537 (2019). Under our statute, a right of entry must be granted if the circuit court finds

that “the purpose for which the property . . . is sought to be condemned is a public use for

which private property may be appropriated on compensating the owner.” W. Va. Code §

54-2-14a. This finding is solely for the circuit court:

In a condemnation proceeding, the circuit court is

charged with determining whether the applicant has a lawful
right to take property for the purposes stated in the
condemnation petition. The circuit court determines, as a
matter of law, whether a property may lawfully be taken. The
property may lawfully be taken if the applicant’s expressed use
of the property is, in fact, a public one, and the condemnation
is not impelled by bad faith or arbitrary and capricious motives.

Syllabus Point 1, Gomez v. Kanawha Cty. Comm’n, 237 W. Va. 451, 787 S.E.2d 904

(2016). Once that issue is resolved, “[i]n 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.”

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Gomez, 237 W. Va. at 460, 787 S.E.2d at 913, quoting United States v. 49.79 Acres of

Land, More or Less, Situate in New Castle Cty., State of Del., 582 F. Supp. 368, 372 (D.

Del. 1983).

Here, after hearing the arguments of counsel, the circuit court made findings

in its June 15, 1990, order that “for the purposes mentioned in [the condemnation]

Petition,” “the lands sought to be acquired in this proceeding are necessary for

[Respondent’s] use for the purposes aforesaid and are not in excess of the quantity

reasonably necessary for such purposes.” Petitioners make no allegation that these findings

by the circuit court were erroneous or that the taking was in egregious bad faith. Petitioners

merely don’t agree that the taking was necessary. Thus, absent any argument that satisfies

Gomez, we find the circuit court’s June 15, 1990, order resolved the issue of public use of

the property described in the condemnation petition and is not subject to further review.

2. Burden of Prosecuting A Condemnation Action

The next issue raised in this appeal relates to which party has the

responsibility of ensuring that a condemnation action is properly concluded. Should that

responsibility rest with the condemning authority or should that obligation devolve upon

the landowner?

Respondent argues that this issue can be resolved simply by looking at who

has the burden of proof during the trial of a condemnation matter. Our law has long held

12
that the owner of the property being taken in an eminent domain proceeding carries the

burden of proving just compensation and damages to the residue. See Buckhannon & N.R.

Co. v. Great Scott Coal & Coke Co., 75 W. Va. 423, 441-42, 83 S.E. 1031, 1038 (1914);

see also United Fuel Gas Co. v. Allen, 137 W. Va. 897, 902, 75 S.E.2d 88, 91 (1953) (the

landowner “carr[ies] the burden of proving the value of the property, together with the

damages to the residue.”). Conversely, a condemning authority has the burden of proving

benefits, if any, as a result of the project. See Buckhannon & N.R. Co., 75 W. Va. at 442,

83 S.E. at 1038. This analysis of the parties’ respective burdens of proof, however, does

not end our inquiry.

An examination of our codified condemnation procedure 4 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. Under

our rules of statutory construction, which we are duty-bound to apply, “[a] statutory

provision which is clear and unambiguous and plainly expresses the legislative intent will

not be interpreted by the courts but will be given full force and effect.” Syllabus Point 2,

State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). “Where the language of a statute

is plain and unambiguous, there is no basis for application of rules of statutory construction;

but courts must apply the statute according to the legislative intent plainly expressed

4
A more in-depth discussion of condemnation procedure can be found in
Edwin Miller Investments, L.L.C. v. CGP Dev. Co., 232 W. Va. 474, 477, 752 S.E.2d 901,
904 (2013).
13
therein.” Syllabus Point 1, Dunlap v. State Compensation Director, 149 W. Va. 266, 140

S.E.2d 448 (1965). “Courts always endeavor to give effect to the legislative intent, but a

statute that is clear and unambiguous will be applied and not construed.” Syllabus Point

1, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). “Where the language of a statute

is free from ambiguity, its plain meaning is to be accepted and applied without resort to

interpretation.” Syllabus Point 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384

(1970). “We look first to the statute’s language. If the text, given its plain meaning,

answers the interpretive question, the language must prevail and further inquiry is

foreclosed.” Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W. Va. 573,

587, 466 S.E.2d 424, 438 (1995).

The clear and unambiguous language in the condemnation procedures

established by our Legislature in West Virginia Code § 54-2-14a shows that the burden of

moving forward is squarely upon the condemning authority. As we discussed above, our

Legislature first requires that the condemning authority demonstrate that the property being

taken is necessary for a public use. See W. Va. Code § 54-2-14a; see also Syllabus Point

3, Tucker, 241 W. Va. 307, 824 S.E.2d 534 (“‘The question what is a public use is always

one of law.’ Syllabus Point 2, in part, Hench v. Pritt, 62 W. Va. 270, 57 S.E. 808 (1907)”

citing Syllabus Point 2, Gomez v. Kanawha Cty. Comm’n, 237 W. Va. 451, 787 S.E.2d 904

(2016)). Second, the statute requires the condemning authority to pay into court its

estimate of just compensation to appropriate the land. See W. Va. Code § 54-2-14a. Third,

once the public use is established and the condemning authority is granted its right of entry,

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it only obtains a defeasible title. Id. It is only upon final award that the condemning

authority’s interest matures into absolute title. Id.; see also Edwin Miller Investments,

L.L.C., 232 W. Va. 474, 477, 752 S.E.2d 901, 904 (“Only after the commissioners’ report

or jury’s verdict has been confirmed and ordered to be recorded, and the State pays into

court the excess amount, if any, is title to the condemned real estate absolutely and

indefeasibly vested in the State in fee simple.”) Fourth, the condemning authority is

required to pay ten percent interest per year on the difference between any amount awarded

and its estimate of just compensation. See W. Va. Code 54-2-14a; see also State ex rel. W.

Virginia Dep’t of Transportation, Div. of Highways v. Burnside, 237 W. Va. 655, 661, 790

S.E.2d 265, 271 (2016) (“the incentive remains strong for the State to accurately calculate

its tender, because if the amount ultimately allowed as just compensation—either by the

commissioners’ report or by a jury verdict—exceeds the estimate initially paid into court,

the landowner is entitled to payment of the excess plus ten percent interest from the date

of the [condemnation] petition.”).

Fifth, the provisions of West Virginia Code § 54-2-14a provide, in pertinent

part:

If the applicant shall enter upon or take possession of

the property, under the authority of this section, and shall injure
the property, the applicant shall not be entitled, without the
consent of the defendant, to abandon the proceeding for the
condemnation thereof, but such proceeding shall proceed to
final award or judgment, and the amount of compensation and
any damages as finally determined in such proceeding shall be
paid in the manner provided by this section.

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W. Va. Code § 54-2-14a. From this part of the statutory provisions, if a condemning

authority enters the condemned land and injures it, the condemnation proceeding cannot

be abandoned without the consent of the landowner.

Although we have had little occasion to discuss the abandonment provision

of West Virginia Code § 54-2-14a in our prior decisions, 5 we have discussed the nearly

identical provision contained in West Virginia Code § 54-2-15 (1981), which deals with a

business corporation’s authority to condemn land:

If the applicant shall enter upon or take possession of

the property under the provisions of this section, and shall do
any work thereon, or cause any injury or damage to such
property, it shall not thereafter be entitled, without the consent
of the defendant, to abandon the proceeding for the
condemnation thereof, but the same shall proceed with
reasonable dispatch to a finality and the applicant shall pay to
the owner of the land the amount of the compensation and
damages as finally determined in such proceedings, with
interest at ten percent from the date of the filing of the petition.

W. Va. Code § 54-2-15.

In United Fuel Gas Co. v. Huffman, 156 W. Va. 537, 538, 195 S.E.2d 171,

173 (1973), United Fuel was constructing a gas pipeline in Mercer County and filed a

condemnation petition seeking an easement across .817 acre of Huffman’s land. United

5
The only prior citation to this abandonment provision we uncovered in our
research is found in State ex rel. State Road Commission v. Taylor, 151 W. Va. 535, 153
S.E.2d 531 (1967). The issue in that matter was whether the condemning authority could
delay the condemnation proceeding, not whether the proceeding was abandoned. Id.,
Syllabus Point 1.
16
Fuel thereafter entered Huffman’s land and constructed the gas pipeline. See id. Land

commissioners were appointed and determined the .817 acre to be valued at $4,485.00.

See id., 156 W. Va. at 538-39, 195 S.E.2d at 173. Both parties filed exceptions to the

commissioners’ award and sought a jury trial. See id., 156 W. Va. at 539, 195 S.E.2d at

173. Thereafter, United Fuel sought to reduce its easement size from .817 acre to .20 acre.

On these facts, we held in Syllabus Point 2:

Under the provisions of Chapter 54, Article 2, Section

15 of Code, 1931, when a condemnor, pursuant to an order of
a circuit court approving bond and granting an immediate right
of entry, has provided security and has entered and exercised
complete dominion over the land taken, it may not thereafter
abandon a part of its original taking and reduce the amount of
compensation.

Id., 156 W. Va. 537, 195 S.E.2d 171.

In this case, the circuit court granted Respondent right of entry, who then

injured the land by the public use of a dam and its attendant structures. Just like in the

similar provisions in Section 15, Respondent cannot simply walk away from its obligations

and point fault at the landowner as to why the condemnation proceeding has not been

completed. We believe this sentiment was aptly stated by the Florida District Court of

Appeal:

A condemnor cannot simply sit idly by and avoid record

activity hoping that the court will dismiss the cause for want of
prosecution. The burden to proceed in [a condemnation
proceeding] is not upon the landowner; that burden rests
squarely upon the shoulders of the governmental entity which
seeks to invoke the harsh procedures which result in the taking
of private property.

17
Div. of Admin., State of Fla., Dep’t of Transp. v. Grossman, 536 So. 2d 1181, 1183–84

(Fla. Dist. Ct. App. 1989).

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. We

reach this result because in a condemnation proceeding:

The issue is in the nature of an inquisition on behalf of

the public to determine the amount which should be awarded
to the condemnee, in consideration of the involuntary
appropriation of his private property to the public use through
the instrumentality of an internal improvement company, or
other recognized agent of the state, to whom she has delegated
by general law, or otherwise, the right of eminent domain.

Ohio River R. Co. v. Ward, 35 W. Va. 481, 490, 14 S.E. 142, 146 (1891) (internal citations

omitted). Accordingly, none of the legal theories raised sua sponte by the circuit court to

foreclose Petitioners from seeking just compensation, namely, estoppel, laches, and any

applicable statutes of limitation or repose, would “prevent [Petitioners] from resurrecting

this matter” because a plain reading of the process contained in West Virginia Code § 54-

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2-14a (1981) places the burden of ensuring a condemnation action reaches its conclusion

upon the condemning authority.

3. Acceptance of Estimate of Just Compensation.

Finally, the circuit court ruled that Petitioners were now barred from

challenging Respondent’s estimate of just compensation because Petitioners withdrew the

amount from the circuit court and such acceptance was “accord and satisfaction.” We

disagree.

Again, the language of West Virginia Code § 54-2-14a guides us, providing

in pertinent part:

Upon petition to the court or judge, any person entitled

thereto may be paid his pro rata share of the money paid into
court, or a portion thereof, as ordered by the court or judge, but
the acceptance of such payment shall not limit the amount to
be allowed by the report of the condemnation commissioners,
or the verdict of a jury, if there be one.

We need not provide a comprehensive analysis of accord and satisfaction, as by the

operation of this code section, such concept does not apply. Under the plain text of the

statute, our law is clear – a person entitled to proceeds of a condemnation proceeding filed

pursuant to West Virginia Code § 54-2-14a (1981) has the legal right to accept the

condemning authority’s estimate of just compensation without prejudicing such person’s

right to challenge that amount.

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 IV. CONCLUSION

For the foregoing reasons, we believe the circuit court erred and reverse and

remand this matter for further proceedings consistent with this opinion.

Reversed and remanded with instructions.

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