Senate Bill No. 375
(By Senator Wagner)
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[Introduced February 15, 1995; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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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,
relating to providing for a change in the rate of interest
payable in condemnation cases from ten percent to a market
rate; specifying the method of calculating that rate; 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 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 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 are 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.
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.
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.
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 percent 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.
NOTE: The purpose of this bill is to change the rate of
interest paid in condemnation proceedings from ten percent to 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 weeks U.S. Treasury bills
settled immediately before the date of filing of the petition,
and providing for the effective date of the rate change.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.