H. B. 2812
(By Mr. Speaker, Mr. Kiss (By Request),
and Delegate Campbell (By Request))
[Introduced January 31, 2003; referred to the
Committee on the Judiciary.]
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
the interest rate paid on compensation for eminent domain
proceedings; and changing the interest rate from ten percent
to the existing prime rate.
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 based upon the
existing prime rate 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.
§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
based upon the existing prime rate
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 the 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 may 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 is other than a corporate body politic, before entering upon or
taking possession of such the 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.
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 is 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 the
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 are applicable to such
that case.
§54-2-14. Entry by state or its political subdivisions.
If the applicant be is 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 are considered sufficient security and
to have been pledged for such payment, and no bond or further
security shall may be required of the applicant.
If the applicant shall enter enters upon or take takes
possession of property under the authority of this section, and
shall do does any work thereon and injure such injures the land or
property, it shall is not be entitled, without the consent of the
defendant, to abandon the proceedings for the condemnation thereof,
but such the 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 the
proceedings, with interest at ten percent
based upon the existing
prime rate
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
estimates 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 the 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
is one, exceeds the amount which has been paid into court, the
excess amount, together with interest thereon at ten percent
based
upon the existing prime rate
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
is one, the excess shall be repaid to the applicant out of such the
fund in court, or, if the amount remaining in the fund be is
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 is one, does
not exceed the sum paid into court and it shall appear appears 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 is the state of West Virginia or any
political subdivision thereof, and be is 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
estimates 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 the 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 the 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 the property, or
interest or right therein, shall be transferred to such the fund in
court, subject to the provisions of this section. The title in the
applicant shall be is 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 the payment shall may not limit the amount
to be allowed by the report of the condemnation commissioners, or
the verdict of a jury, if there be is 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 of that section are applicable. No party to the
condemnation proceeding shall be permitted to may 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 enters upon or take possession of
the property, under the authority of this section, and shall injure
injures the property, the applicant shall not be is not entitled,
without the consent of the defendant, to abandon the proceeding for
the condemnation thereof, but such the proceeding shall proceed to
final award or judgment, and the amount of compensation and any damages as finally determined in such the 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
is one, exceeds the amount which has been paid into court, the
excess amount, together with interest thereon at ten percent
based
upon the existing prime rate
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. In no other instance shall may 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
is one, the excess shall be repaid to the applicant out of such the
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 the 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.
If the amount allowed by the report of the condemnation
commissioners, or the verdict of the jury, if there be is one, does
not exceed the sum paid into court and it shall appear appears 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 is 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 the
owner payment for such the property and all damages to which he
shall be is entitled for the taking thereof, and if the owner being
sui juris shall appear and make appears and makes no objection to
such the bond, the applicant shall be is entitled to take
possession of the property sought to be condemned, for the purposes
stated in the petition. But if objection be is made to the form,
amount of, or sureties on, such the 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 the bond and of the request
of the applicant to approve the same; and at any time after five
days' written notice shall have has been given to the owner or to
his guardian or committee, if he be is 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 the 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 the petition, if it shall
appear appears 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 is considered a good and
sufficient surety on any bond required under this section.
If the applicant shall enter enters upon or take takes
possession of the property under the provisions of this section,
and shall do does any work thereon, or cause causes any injury or
damage to such the property, it shall may not thereafter be
entitled, without the consent of the defendant, to abandon the
proceeding for the condemnation thereof, but the same applicant
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 the
proceedings, with interest at ten percent
based upon the existing
prime rate
from the date of the 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 the subsequent report or
verdict exceed exceeds what was so paid, and the applicant fail
fails to pay, the same judgment shall be given against it for the
amount of such excess, with ten percent interest thereon
based upon the existing prime rate
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 excess has 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 the party is a
defendant therein, shall pay the costs occasioned by such the
motion, unless such the former report was set aside, recommitted or
other commissioners appointed on some other ground than that of
insufficiency of compensation.
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 appears by a report confirmed
and ordered to be recorded, or by a verdict of a jury, that he is
entitled to take such the parcel for the purpose mentioned in his
application without paying any greater compensation, therefor he
shall be adjudged his costs in respect to such the 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 the proceeding is had, and such the payment
shall be deemed considered 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
is 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 based upon the existing prime
rate upon the award, judgment or money paid into court from the
filing of the petition until such notice is served or until
disbursement be is made to the persons entitled thereto. The clerk
to whom payment is so made, together with the surety on his official bond, shall be is liable therefor for the payment, 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 the money as is
proper, having due regard to the interest of all persons therein,
and in what proportions such the money is properly payable.
If it shall appear appears 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 is 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 the 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 those persons in and to the money paid into
court.
If it shall appear appears 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 The
costs shall be allowed to the prevailing persons as the court or judge shall direct directs. 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 the 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 must
be protected as provided in the next preceding paragraph.
§54-2-21. Effective date of new percent interest rates.
The percent interest rate
based upon the existing prime rate
provided for in sections twelve, thirteen, fourteen, fourteen-a,
fifteen, sixteen and eighteen of this article, shall be is
applicable only to condemnation proceedings hereafter instituted.
The rate of interest previously applicable to proceedings under the
above sections shall continue to be applicable to condemnation
proceedings heretofore instituted.
NOTE: The purpose of this bill is to
change the interest rate
paid on compensation for eminent domain proceedings from ten
percent to the existing prime rate.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.