COMMITTEE SUBSTITUTE
FOR
H. B. 2281
(By Delegates
J. Martin, Michael, Love, Evans and Border)

(Originating in the House Committee on the Judiciary)
[February 17, 1995]

A BILL to amend and reenact sections twelve, thirteen, fourteen, fourteen-a, fifteen, sixteen, eighteen and twenty-one, article two, chapter fifty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to a change in the rate of interest payable on money awarded in reports or judgments in condemnation cases from ten percent to a rate determined by a specified formula; and providing for the effective date of the rate change.

Be it enacted by the Legislature of West Virginia:
That sections twelve, thirteen, fourteen, fourteen-a, fifteen, sixteen, eighteen and twenty-one, article two, chapter fifty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:

ARTICLE 2. PROCEDURE.

§54-2-12. Vesting of title in applicant.

Except as otherwise provided in this article, at any time within three months after the report, or the verdict of a jury, if there be one, has been confirmed and ordered to be recorded, the sum so ascertained with ~~ten percent~~ interest thereon from the date of the filing of the petition until payment, may be paid by the applicant into court; upon such payment, title to the property, or interest or right therein, so paid for shall be absolutely vested in the applicant in fee simple or to the extent described in the petition: Provided, That in the case of a public road title to the right-of-way only shall absolutely vest in the applicant.
The interest to be paid under this section shall be calculated at an annual rate equal to the average of the prime rate and the coupon issue yield equivalent (as determined by the secretary of the treasury of the United States) of the average accepted auction price for the last auction of fifty-two week United States treasury bills settled immediately before the date of filing of the petition.

§54-2-13. Entry on land on payment of compensation.

After such report has once been made, whether it be set aside, recommitted, or new commissioners appointed, or not, or whether a trial by jury be demanded and had or not, the applicant upon paying into court the sum ascertained by such report, with ~~ten percent~~ interest thereon from the date of the filing of the petition until payment, may, notwithstanding the pendency of further proceedings, enter upon, take and use for the purposes specified in the application, that part of the land and property in respect to which such payment is made, and where such payment has been made and possession taken, or where payment has been made without taking such possession in a pending case, it shall have the same effect as if such payment were made or possession taken, or both, in a case hereafter commenced; and no order shall be made or any injunction awarded by any court or judge to stay it in so doing, unless it be manifest that the applicant is insolvent or that it or its officers, agents or servants, are transcending their authority, or that such interposition is necessary to prevent injury which cannot be adequately compensated in damages: Provided, That if the applicant be other than a corporate body politic, before entering upon or taking possession of such property, it shall enter into bond before the court, or judge thereof in vacation, in a penalty prescribed by the judge, with securities approved by him, conditioned for the payment to the owner of any additional sums which may be awarded against it in subsequent proceedings as additional compensation and damages for the property so taken.
The interest to be paid under this section shall be calculated at an annual rate equal to the average of the prime rate and the coupon issue yield equivalent (as determined by the secretary of the treasury of the United States) of the average accepted auction price for the last auction of fifty-two week United States treasury bills settled immediately before the date of filing of the petition.
And where, under authority of section ten, article one of this chapter, wood, earth, gravel, shale, stone, water or other material is sought to be taken, impounded or consumed, the applicant, after such report has been made, whether it be set aside, recommitted or new commissioners appointed, or not, or whether a trial by jury be demanded and had, or not, may, upon payment into court as aforesaid of the sum ascertained by the report of such commissioners, notwithstanding the pendency of further proceedings, take, impound or consume such wood, earth, gravel, shale, stone, water or other material; and all the foregoing provisions of this section as to injunction and bond shall be applicable to such case.

§54-2-14. Entry by state or its political subdivisions.

If the applicant be the state of West Virginia, or any political subdivision thereof, on filing its petition as authorized in this article, and if the court or judge is satisfied that the purpose for which the land or property is sought to be condemned is a public use for which private property may be appropriated on compensating the owner, the court or judge shall, at the request of the applicant, make an order permitting the applicant at once to enter upon, take possession, appropriate and use the land sought to be condemned for the purposes stated in the petition. The revenues applicable to the payment of any damages or compensation to which the owner is entitled, and which shall be awarded or assessed in his favor, shall be deemed sufficient security and to have been pledged for such payment, and no bond or further security shall be required of the applicant.
If the applicant shall enter upon or take possession of property under the authority of this section, and shall do any work thereon and injure such land or property, it shall not be entitled, without the consent of the defendant, to abandon the proceedings for the condemnation thereof, but such proceedings shall proceed to final award or judgment, and the applicant shall pay to the owner of the land the amount of compensation and damages as finally determined in such proceedings, with interest ~~at ten percent~~ from the date of the filing of the petition.
Before entry, taking possession, appropriation, or use, the applicant shall pay into court such sum as it shall estimate to be the fair value of the property, or estate, right, or interest therein, sought to be condemned, including, where applicable, the damages, if any, to the residue beyond the benefits, if any, to such residue, by reason of the taking.
When, after payment into court as provided under the authority of this section, the amount allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be one, exceeds the amount which has been paid into court, the excess amount, together with interest thereon ~~at ten percent~~ from the date of the filing of the petition to the date of payment of the excess amount into court, may, at any time within three months after the report or verdict of a jury, as the case may be, has been confirmed and ordered to be recorded, be paid into court by the applicant for the persons entitled thereto.
The interest to be paid under this section shall be calculated at an annual rate equal to the average of the prime rate and the coupon issue yield equivalent (as determined by the secretary of the treasury of the United States) of the average accepted auction price for the last auction of fifty-two week United States treasury bills settled immediately before the date of filing of the petition.
If the amount which has been paid into court pursuant to this section exceeds the amount allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be one, the excess shall be repaid to the applicant out of such fund in court, or, if the amount remaining in the fund be insufficient, then the persons to whom the fund, or any part thereof, has been paid, shall reimburse the applicant, on a pro rata basis, but without interest.
If the amount allowed by the report of the condemnation commissioners, or the verdict of the jury, if there be one, does not exceed the sum paid into court and it shall appear that the latter amount was tendered by the applicant to the defendant prior to the institution of the proceeding, the defendant shall pay the costs of the proceeding in the trial court unless the refusal to accept the tender was based on some ground other than that of insufficiency of compensation and any damages.

§54-2-14a. Alternative method for condemnation by state or its political subdivision.

Prior to any report by condemnation commissioners, or verdict of a jury, if the applicant be the state of West Virginia or any political subdivision thereof, and be otherwise authorized by law to make payment as required in this section, on filing its petition as authorized in this article, and if the court or judge is satisfied that the purpose for which the property or interest or right therein, is sought to be condemned is a public use for which private property may be appropriated on compensating the owner, the applicant may thereupon acquire title to, and enter upon, take possession of, appropriate and use the property, or interest or right therein, sought to be condemned for the purposes stated in the petition by following the method provided in this section.
Before entry, taking possession, appropriation, or use, the applicant shall pay into court such sum as it shall estimate to be the fair value of the property, or estate, right, or interest therein, sought to be condemned, including, where applicable, the damages, if any, to the residue beyond the benefits, if any, to such residue, by reason of the taking. The court or judge may, at the request of any party to the proceeding, require the clerk of the court to give an additional bond, adequate to protect such deposit with the clerk; and if such bond is required, the applicant shall pay the necessary premiums.
Upon such payment into court, the title to the property, or interest or right therein, sought to be condemned, shall be vested in the applicant, and the court or judge shall, at the request of the applicant, make an order permitting the applicant at once to enter upon, take possession, appropriate and use the property, or interest or right therein, sought to be condemned for the purposes stated in the petition, but the owners of such property, or interest or right therein, at the time of such payment, including lienors and conflicting claimants, shall have such title, interest, or right in the money paid into court as they had in the property, or interest or right therein, sought to be condemned, and all liens by deed of trust, judgment or otherwise, upon such property, or interest or right therein, shall be transferred to such fund in court, subject to the provisions of this section. The title in the applicant shall be defeasible until the compensation and any damages are determined in the condemnation proceedings and the applicant has paid any excess amount into court.
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. Proceedings for the distribution of the money so paid into court shall be conducted as provided in section eighteen of this article to the extent that the provisions therein are applicable. No party to the condemnation proceeding shall be permitted to introduce evidence of such payment or of the amount so paid into court, or of any amount which has been accepted by any party, nor shall reference be made thereto during the course of the trial.
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.
When, after payment into court as provided under the authority of this section, the amount allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be one, exceeds the amount which has been paid into court, the excess amount, together with interest thereon ~~at ten percent~~ from the date of the filing of the petition authorized by section one of this article to the date of payment of the excess amount into court, may, at any time within three months after the report or verdict of a jury, as the case may be, has been confirmed and ordered to be recorded, be paid into court by the applicant for the persons entitled thereto. In no other instance shall interest be allowed on payments made pursuant to the provisions of this section. If the amount which has been paid into court pursuant to this section exceeds the amount allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be one, the excess shall be repaid to the applicant out of such fund in court, or, if the amount remaining in the fund be insufficient, then the persons to whom the fund, or any part thereof, has been paid, shall reimburse the applicant, on a pro rata basis, but without interest. If the applicant has the right to abandon the proceeding and does so, the amount which has been paid into court pursuant to this section shall be repaid to the applicant from such fund in court and by any persons to whom the fund, or any part thereof, has been paid, on a pro rata basis, but without interest.
The interest to be paid under this section shall be calculated from the date of the filing of the petition authorized by section one of this article to the date of payment of the excess amount into court at an annual rate equal to the average of the prime rate and the coupon issue yield equivalent (as determined by the secretary of the treasury of the United States) of the average accepted auction price for the last auction of fifty-two week United States treasury bills settled immediately before the date of filing of the petition authorized by section one of this article.
If the amount allowed by the report of the condemnation commissioners, or the verdict of the jury, if there be one, does not exceed the sum paid into court and it shall appear that the latter amount was tendered by the applicant to the defendant prior to the institution of the proceeding, the defendant shall pay the costs of the proceeding in the trial court unless the refusal to accept the tender was based on some ground other than that of insufficiency of compensation and any damages.
When the report of the condemnation commissioners, or the verdict of a jury, if there be one, has been confirmed and ordered to be recorded, and the excess amount, if any, has been paid into court as provided herein, the title to the property, or interest or right therein, so paid for shall be absolutely and indefeasibly vested in the applicant in fee simple or to the extent described in the petition: Provided, That in the case of a public road title to the right-of-way only shall absolutely vest in the applicant.

§54-2-15. Alternative procedure for condemnation by business corporation; bond.

Any business corporation, entitled to exercise the powers of eminent domain under this chapter, may file with its petition a bond for a sufficient amount with good sureties, payable to the owner of the property proposed to be taken to secure to such owner payment for such property and all damages to which he shall be entitled for the taking thereof, and if the owner being sui juris shall appear and make no objection to such bond, the applicant shall be entitled to take possession of the property sought to be condemned, for the purposes stated in the petition. But if objection be made to the form, amount of, or sureties on, such bond, or if the owner cannot be found, or is not sui juris, the court or judge shall fix a day for the hearing of any objections to such bond and of the request of the applicant to approve the same; and at any time after five days' written notice shall have been given to the owner or to his guardian or committee, if he be not sui juris, and if the owner cannot be found, or his guardian or committee, the owner not being sui juris, then, after five days' written notice posted upon the land, which notice shall state the time and place for such hearing, the court or the judge shall proceed to hear and determine the matters arising upon such objection and request, and may require evidence as to the sufficiency of the surety or sureties and as to the sufficiency of the amount of the bond, and may, in its or his discretion, require new and additional sureties and a bond for a larger amount and in a more satisfactory form, and when satisfied as to the form, amount and sufficiency of such bond and sureties, and that the purpose for which the property is to be appropriated is a public use for which private property may be taken upon compensating the owner, the court or judge shall approve the bond and make an order permitting the applicant to enter upon, take possession, appropriate and use the land or property sought to be condemned for the purposes stated in the petition. At any time during the subsequent proceedings on such petition, if it shall appear necessary so to do in order to protect the owner and assure unto him the payment of the compensation and damages to which he may be entitled, the court or judge may require the applicant to give a new and additional bond with sureties satisfactory to the court or judge.
Any indemnity company authorized to transact business in the state of West Virginia shall be deemed a good and sufficient surety on any bond required under this section.
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.
The interest to be paid under this section shall be calculated at an annual rate equal to the average of the prime rate and the coupon issue yield equivalent (as determined by the secretary of the treasury of the United States) of the average accepted auction price for the last auction of fifty-two week United States treasury bills settled immediately before the date of filing of the petition.

§54-2-16. Increase or decrease in award after payment into court; costs.

When, after such payment into court as is mentioned in section thirteen of this article a subsequent report is made which is confirmed and ordered to be recorded, or the verdict of a jury is found, if the sum ascertained by such subsequent report or verdict exceed what was so paid, and the applicant fail to pay the same, judgment shall be given against it for the amount of such excess, with ~~ten percent~~ interest thereon from the date of filing of the petition until payment, but if what was so paid exceeds the sum ascertained by such subsequent report or verdict, the excess shall be repaid to the applicant out of the fund in court, or by the persons to whom the same shall have been paid. If the sum ascertained by such subsequent report or verdict does not exceed the sum ascertained by the former report, the party on whose motion the former report was set aside, recommitted, or other commissioners appointed, or trial by jury demanded, if he be a defendant therein, shall pay the costs occasioned by such motion, unless such former report was set aside, recommitted or other commissioners appointed on some other ground than that of insufficiency of compensation.
The interest to be paid under this section shall be calculated at an annual rate equal to the average of the prime rate and the coupon issue yield equivalent (as determined by the secretary of the treasury of the United States) of the average accepted auction price for the last auction of fifty-two week United States treasury bills settled immediately before the date of filing of the petition.
If the applicant has stated in his application the sum of money which he is ready to pay to the owners for any parcel of land proposed to be taken, and it appear by a report confirmed and ordered to be recorded, or by a verdict of a jury, that he is entitled to take such parcel for the purpose mentioned in his application without paying any greater compensation therefor, he shall be adjudged his costs in respect to such parcel, out of the compensation to be paid therefor to the owners.
In cases not otherwise provided for, the applicant shall pay the costs of the proceedings.

§54-2-18. Payment to clerk; disposition of money paid into court; determination of conflicting claims; notice to condemnee.

Payment of an award or judgment, or any money, under any of the provisions of this chapter may be made to the clerk of the court in which such proceeding is had, and such payment shall be deemed to be a payment into court. Within ten days after the payment of an award, judgment or money into court pursuant to the provisions of this chapter, the condemnor shall serve notice upon the parties of record except nonresidents and unknown parties whose interests the applicant seeks to condemn, or upon their counsel of record. Service of notice by registered or certified mail to the parties' last-known addresses shall be deemed sufficient. Notwithstanding any other provision of this chapter to the contrary, failure to serve such notice shall result in the accrual of interest ~~at ten percent~~ upon the award, judgment or money paid into court from the filing of the petition until such notice is served or until disbursement be made to the persons entitled thereto. The clerk to whom payment is so made, together with the surety on his official bond, shall be liable therefor, as for other moneys collected by him by virtue of his office.
Upon money being paid into court, pursuant to the provisions of this chapter, and the court or judge being satisfied that the persons entitled thereto are before the court or judge, it or he shall make such distribution or disposition of such money as is proper, having due regard to the interest of all persons therein, and in what proportions such money is properly payable.
If it shall appear that the petition states the persons or classes of persons, who, in the opinion of the applicant, are vested with the superior right or claim of title in the property, or interest or right therein, condemned or sought to be condemned or in the amount allowed or to be allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be one, and it does not appear from the record or otherwise that there is any denial or dispute, by any person or party in interest, of such statement in the petition, the court or judge may direct that the money paid into court, after withholding therefrom any sum necessary for payment of any taxes which are a lien upon the property, interest, or right, be disbursed and distributed in accordance with the statement in the petition, among the persons entitled thereto, except that with respect to any persons appearing to be infants, incompetents, incarcerated convicts, or under any other legal disability, the court or judge shall inquire into their rights or claims, independent of any statement in the petition, and any order for disbursement or distribution shall conserve and protect the rights or claims of such persons in and to the money paid into court.
If it shall appear to the court or judge, from the record or otherwise, that there exists a controversy among claimants to the money paid into court, or to the ownership of the property, or interest or right therein, condemned or sought to be condemned, the court or judge shall enter an order setting a time for hearing the case and determining the rights and claims of all persons entitled to the money paid into court or to any interest or share therein. To aid in properly disposing of the money, the court or judge may appoint a commissioner to take evidence of the conflicting claims. The court or judge may direct publication to be made requiring all who are interested to appear at the time set for hearing the case to present their respective claims. Such costs shall be allowed to the prevailing persons as the court or judge shall direct. Upon a determination by the court or judge of the rights and claims of the persons entitled to the money paid into court, with or without a report of such commissioner, judgment shall be entered directing the disbursement or distribution, after withholding for taxes as provided in the next preceding paragraph, to the persons entitled thereto, provided that the rights or claims of persons under legal disability shall be protected as provided in the next preceding paragraph.
The interest to be paid under this section shall be calculated from the date of the filing of the petition to the date of service of the notice required under this section or until disbursement is made to the persons entitled thereto at an annual rate equal to the average of the prime rate and the coupon issue yield equivalent (as determined by the secretary of the treasury of the United States) of the average accepted auction price for the last auction of fifty-two week United States treasury bills settled immediately before the date of filing of the petition.

§54-2-21. Effective date of new interest rates.

The ~~percent~~ interest rate provided for in sections twelve, thirteen, fourteen, fourteen-a, fifteen, sixteen and eighteen of this article, shall be applicable only to condemnation proceedings ~~hereafter~~ instituted on or after the first day of July, one thousand nine hundred ninety-five. The rate of interest previously applicable to proceedings under the above sections shall continue to be applicable to condemnation proceedings ~~heretofore~~ instituted prior to that date.