SB539 HJUD AM 3-8
The Committee on the Judiciary moves to amend the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
That §54-2-14a of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 2. PROCEDURE.
§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
(a) When the following conditions are met, the State of West Virginia or any of its political subdivisions may pursue condemnation actions under this section and acquire title, enter upon, take possession of, appropriate and use the property or interest or right in the property for the purposes stated in the petition:
(1) The state or any of its political subdivisions may institute a condemnation proceeding under this article;
(2) The state or any of its political subdivisions may deposit the amount of just compensation for the property being condemned; and
(3) The court is satisfied that the purpose for which the property or interest or right in the property is sought to be condemned is a public use for which the private property may be appropriated upon compensating the owner.
(b) Before entry, taking
possession, appropriation or use, the applicant state or any of its
political subdivisions shall pay into court such sum as it shall
estimate to be the fair value of the property the fair market value determined
by the state or any of its political subdivisions to be just
compensation for the property, or estate, right or interest therein in
the property, 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.
(c) (1) The owner of the coal, oil and natural gas, which are taken by the public use incidental to a public construction project, shall be compensated for the fair market value of the minerals in place, less reasonable costs of extraction, production, transportation, and marketing. Other materials, such as, limestone, gravel, rock, clay, sand, chalk, and all other similar materials, which are of sufficient quantity and quality to be commercially marketable as minerals shall be compensated.
(2) Any mineral owner who establishes that such minerals are of sufficient quantity and quality to be commercially marketable shall be compensated for the fair market value of the minerals in place, less reasonable costs of extraction, production, transportation, and marketing.
(3) Any material excavated during construction, which is not of sufficient quantity and quality to be a commercially marketable mineral, which is moved on the project from one location to another, is not compensable.
(d) 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 the deposit
with the clerk; and if such a bond is required, the applicant
state or any of its political subdivisions shall pay the necessary
premiums.
(e) 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 state or any of its political
subdivisions, make an order permitting the applicant state or any
of its political subdivisions at once to enter upon, take
possession, appropriate and use the property, or interest or right therein
in the property, 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 and to deposit the state or any of its
political subdivision’s estimate of just compensation with the clerk of the
court.
(f) The title in the applicant
state or any of its political subdivisions shall be defeasible until the
compensation and any damages are determined in the condemnation proceedings,
and the applicant state or any of its political subdivisions has
paid any excess additional amount awarded into court.
(g) The owners of the property, or interest or right in the property, at the time of the payment, including lienors and conflicting claimants, have the same title, interest or right in the money paid into court as they had in the property, or interest or right in the property, being condemned.
(h) Upon petition to the
court or judge, any person entitled thereto may be paid his or her pro
rata share of the money paid into court, or a portion thereof of the
money, as ordered by the court or judge, but the acceptance of such the
payment shall does 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 in that section are
applicable. No A party to the condemnation proceeding shall be
is not permitted to introduce evidence of such the payment
or of the amount so paid into court, or of any amount which has been
accepted by any party, nor shall may reference be made thereto
to any payment during the course of the a commissioners’
hearing or trial.
(i) If the applicant shall
enter state or any of its political subdivisions enters upon or take
takes possession of the property, under the authority of this section,
and shall injure damages the property, the applicant shall not
be entitled state or any of its political subdivisions may not,
without the consent of the defendant, to abandon the condemnation
proceeding. for the condemnation thereof, but such proceeding shall proceed
The condemnation proceeding shall continue 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.
(j) 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 If the amount awarded by the commissioners or jury
exceeds the amount which has been paid into court, the excess additional
amount, together with interest thereon on the additional amount
at ten percent from the date of the filing of the petition to the date of payment
of the award of the excess additional amount into
court, may, at any time within three months after the report or verdict
of a jury, as the case may be, award has been confirmed and ordered
to be recorded, be paid into court by the applicant state or any of
its political subdivisions for the persons entitled thereto to
the additional amount. In no other instance shall is 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.
(k) If the applicant state
or any of its political subdivisions 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 state or any of its
political subdivisions 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.
(l) 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
state or any of its political subdivisions 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.
(m) If the amount allowed by the report of the condemnation commissioners, or the verdict of the jury, if there is one, exceeds the sum paid into the court, the state or political subdivision shall pay for the defendant’s cost, including attorney fees, incurred in the action.
(n) 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 in this section,
the title to the property or interest or right therein, so in the
property paid for shall be is absolutely and indefeasibly
vested in the applicant state or any of its political subdivisions
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 vests in the applicant state or any of its political
subdivisions.