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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2016 Term FILED 

June 13, 2016 

released at 3:00 p.m. 

No. 15-1112 RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

_______________ OF WEST VIRGINIA 

STATE OF WEST VIRGINIA ex rel. WEST VIRGINIA DEPARTMENT OF
 

TRANSPORTATION, DIVISION OF HIGHWAYS,
 

Petitioner
 

v. 

THE HONORABLE ROBERT A. BURNSIDE, JR.,
 

JUDGE OF THE CIRCUIT COURT OF RALEIGH COUNTY,
 

AND MCNB BANK AND TRUST CO.,
 

Respondents
 

ORIGINAL PROCEEDING IN PROHIBITION 

WRIT GRANTED 

Submitted: April 5, 2016 

Filed: June 13, 2016 

Leah R. Chappell David Allen Barnette 

Adams, Fisher & Chappell, PLLC Vivian H. Basdekis 

Ripley, West Virginia Jackson Kelly, PLLC 

Counsel for the Petitioner Charleston, West Virginia 

Counsel for the Respondent 

JUSTICE BENJAMIN delivered the Opinion of the Court.
 

CHIEF JUSTICE KETCHUM concurs and reserves the right to file a concurring opinion.
 

JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.
 

JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “‘Prohibition lies only to restrain inferior courts from proceedings in 

causes over which they have no jurisdiction, or, in which, having jurisdiction, they are 

exceeding their legitimate powers, and may not be used as a substitute for [a petition for 

appeal] or certiorari.’ Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 

(1953).” Syl. pt. 3, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). 

2. “In determining whether to entertain and issue the writ of prohibition 

for cases not involving an absence of jurisdiction but only where it is claimed that the 

lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) 

whether the party seeking the writ has no other adequate means, such as direct appeal, to 

obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a 

way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly 

erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated 

error or manifests persistent disregard for either procedural or substantive law; and (5) 

whether the lower tribunal’s order raises new and important problems or issues of law of 

first impression. These factors are general guidelines that serve as a useful starting point 

for determining whether a discretionary writ of prohibition should issue. Although all 

five factors need not be satisfied, it is clear that the third factor, the existence of clear 

error as a matter of law, should be given substantial weight.” Syl. pt. 4, State ex rel. 

Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Benjamin, Justice: 

In this original proceeding, the Division of Highways (“DOH”) of the West 

Virginia Department of Transportation petitions for extraordinary relief, seeking in the 

underlying condemnation matter to prohibit enforcement of the circuit court’s order 

requiring it to deposit $1,012,500 before it is granted right of entry and defeasible title to 

certain commercial property owned by MCNB Bank and Trust Company. We agree with 

the DOH that it is entitled under the law to acquire the aforementioned right and title 

upon its deposit of the lesser sum of $417,100, and we therefore grant the requested writ 

of prohibition. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

At issue is 0.78 acres of realty adjoining Robert C. Byrd Drive in Beckley, 

West Virginia. For decades, the property was the site of a service station and automotive 

repair shop. The business required the installation of underground storage tanks 

(“USTs”) for the purposes of dispensing gasoline and sequestering used oil. In 1986, 

Exxon Mobil Corporation owned the USTs, and the company filed a notification thereof 

with the West Virginia Department of Environmental Protection (“DEP”). Exxon Mobil 

removed the original steel USTs in 1988 and replaced them with fiberglass models, but 

an Environmental Assessment performed at the site in August 1991 revealed that 

petroleum hydrocarbons had seeped into the surrounding soil. Monitoring wells were 

thereafter installed to detect the range and intensity of the contamination. On November 

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27, 1991, Exxon Mobil conveyed the property by special warranty deed to H.C. Lewis 

Oil Co., which, on March 16, 1992, acknowledged its ownership of the USTs by filing 

the appropriate paperwork with the DEP. H.C. Lewis removed the fiberglass tanks in 

1997. 

On January 5, 2007, H.C. Lewis sold the property to Chrite Properties I, 

LLC, for $400,000. MCNB financed the purchase price and lent Chrite another $750,000 

for improvements. Chrite built a Sonic fast-food restaurant at the site, much of which 

was paved with asphalt or covered with concrete in order to render it suitable for its 

intended use. Chrite eventually defaulted on the loan, however, and MCNB foreclosed 

on the property, which was conveyed to the bank by deed on October 10, 2013, for the 

stated consideration of $1 million. 

Around the time of the foreclosure sale, the DOH decided to acquire 0.56 

acres of the property to facilitate construction of a new highway to be known as the East 

Beckley Bypass. On May 20, 2014, the DOH applied to the circuit court to condemn the 

parcel and determine the compensation due MCNB. In so doing, the DOH elected to 

proceed using the “alternative method” prescribed by statute, which provides in pertinent 

part: 

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, 

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the damages, if any, to the residue beyond the benefits, if any, 

to such residue by reason of the taking. . . . 

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. . . . 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. 

W. Va. Code § 54-2-14a (1981). 

In its verified Application, the DOH averred that MCNB had rejected its 

tender of $417,100, the details of which were set forth in an exhibit thereto: 

Fair market value of 0.56-acre parcel $140,800 

Diminution in value of 0.22-acre residue 136,200 

Temporary construction easement over residue 3,200 

Restaurant machinery and equipment in place 136,900 

TOTAL: $417,100 

With respect to the first three components of the DOH tender, that is, exclusive of the 

machinery and equipment fixtures, the $280,200 subtotal was considerably short of the 

combined $875,600 value arrived at by the agency’s retained appraiser. The appraiser 

explicitly stated in his report, however, that the valuation was premised on the site being 

free from contamination. Accordingly, the difference of $595,400 corresponded to the 

estimated cost of environmental remediation to the site, which the DOH would have to 

absorb as a necessary precursor to the onset of road construction. 

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MCNB answered the Application on June 26, 2014, denying that $417,100 

represented just compensation and asserting that the property’s fair market value, as 

calculated by its own appraiser, was instead $1,294,100. MCNB’s Answer incorporated 

its Third-Party Complaint for contribution and indemnification against Exxon Mobil and 

H.C. Lewis, which those parties each moved to dismiss. Upon receipt of the Answer, the 

DOH moved for an order in conformance with § 54-2-14a, authorizing it to enter the 

property and granting it defeasible title thereto upon deposit of the tender amount with 

the Circuit Clerk. That motion came on for hearing on August 28, 2014. 

By its order entered September 18, 2015, the circuit court granted the 

DOH’s motion, although it conditioned title and the right of entry on the deposit of the 

full amount of the agency’s appraisal, with no deduction for the anticipated costs of 

environmental remediation. The circuit court’s order thus directs the DOH to deposit not 

only the tender amount of $417,100, but also the $595,400 remediation estimate, for a 

total of $1,012,500. The order confirmed the circuit court’s view that “[West Virginia 

Code §] 54-2-14a does not allow the [DOH] to deposit less than $1,012,500.00 in order to 

gain defeasible title and right of entry to the subject property.” On November 19, 2015, 

the DOH filed the instant petition for extraordinary relief, seeking to prohibit 

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enforcement of the circuit court’s order insofar as it requires the agency to deposit any 

funds in excess of its $417,100 tender.1 

II. STANDARD OF REVIEW 

“‘Prohibition lies only to restrain inferior courts from proceedings in causes 

over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding 

their legitimate powers.’” Syl. pt. 3, in part, State ex rel. Hoover v. Berger, 199 W. Va. 

12, 483 S.E.2d 12 (1996) (quoting syl. pt. 1, in part, Crawford v. Taylor, 138 W. Va. 207, 

75 S.E.2d 370 (1953)). A petition for a writ of prohibition “‘may not be used as a 

substitute for [a petition for appeal] or certiorari.’” Id. (quoting Crawford). In Hoover, 

we set forth five factors to assist us in determining whether a lower tribunal has exceeded 

its legitimate authority such that we should exercise our discretion to grant extraordinary 

relief in prohibition: 

(1) whether the party seeking the writ has no other adequate 

means, such as direct appeal, to obtain the desired relief; (2) 

whether the petitioner will be damaged or prejudiced in a way 

that is not correctable on appeal; (3) whether the lower 

tribunal’s order is clearly erroneous as a matter of law; (4) 

whether the lower tribunal’s order is an oft repeated error or 

manifests persistent disregard for either procedural or 

substantive law; and (5) whether the lower tribunal’s order 

raises new and important problems or issues of law of first 

1 On December 11, 2014, the circuit court granted the respective motions of Exxon 

Mobil and H.C. Lewis to dismiss the third-party claims against them, preserving 

MCNB’s right to maintain those claims in an independent civil action. H.C. Lewis, 

which had filed a cross-claim against Exxon Mobil, agreed to voluntarily dismiss that 

claim without prejudice. 

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impression. These factors are general guidelines that serve as 

a useful starting point for determining whether a discretionary 

writ of prohibition should issue. Although all five factors 

need not be satisfied, it is clear that the third factor, the 

existence of clear error as a matter of law, should be given 

substantial weight. 

Syl. pt. 4, in part, id. 

III. ANALYSIS 

We begin with the general proposition that the sovereign authority, whether 

federal or state, may exercise its inherent power of eminent domain to acquire privately 

owned property for governmental use only to the extent that it fairly reimburses the 

owner for what is taken. That fundamental principle derives from the Fifth Amendment 

of the United States Constitution, which specifically prohibits the public taking of private 

property “without just compensation.” U.S. Const. amend. V. Our State constitution 

similarly instructs that “[p]rivate property shall not be taken or damaged for public use, 

without just compensation.” W. Va. Const. art. III, § 9. 

In adherence to those constitutional commands, the Legislature enacted a 

comprehensive statutory framework regulating the public taking of private property. The 

procedural methodology thereby established in Article 2, Chapter 54 of the West Virginia 

Code strives to serve the societal interest in efficiently securing public infrastructure, an 

undertaking that “is so often necessary for the proper performance of governmental 

functions that the power is deemed to be essential to the life of the state.” State of Ga. v. 

City of Chattanooga, 264 U.S. 472, 480 (1924). At the same time, the eminent domain 

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statute accommodates the constitutional preeminence afforded private property rights 

through the mandate of just compensation. 

The prescribed procedure varies depending on whether the condemnation is 

sought by the State or by a private entity authorized under certain circumstances to take 

private property for public uses. Where a private entity is the condemnor, the associated 

public uses commonly include without limitation railroad lines, distribution networks for 

utilities, and oil or gas pipelines and storage facilities. See W. Va. Code § 54-1-2(a)-(c) 

(1979). The condemnor private entity must initiate proceedings by applying via petition 

in the circuit court. See W. Va. Code § 54-2-1 (1882). Upon satisfying itself that the 

proposed taking is for a public use and not otherwise prohibited, the circuit court 

proceeds to appoint disinterested freeholders as commissioners to determine just 

compensation and any related damages to be paid the condemnee property owner. See id. 

§ 54-2-5 (1963). After considering the evidence and, if necessary, viewing the subject 

property, the commissioners prepare a report containing their findings. See id. § 54-2-9 

(1963). Once the report has been submitted to the circuit court, the condemnor may gain 

entry to the property and put it to the use stated in the application upon payment of the 

amount ascertained by the commissioners, plus ten percent interest running from the 

filing of the initial petition. See id. § 54-2-13 (1981). In the meantime, if the condemnor 

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or the condemnee takes exception to the report, either may timely demand a jury trial of 

the matter. See id. § 54-2-10 (1967). 2 

By contrast, the State or any political subdivision thereof may proceed 

under either of two methods, neither of which requires access to and use of the subject 

property to be delayed until a commissioners’ report has been prepared. Under the first, 

embodied in West Virginia Code § 54-2-14 (1981), the State may seek an order from the 

circuit court permitting it “to enter upon, take possession, appropriate and use the land 

sought to be condemned for the purposes stated in the petition.” The same rights accrue 

to the State if it instead avails itself of the alternative method set forth in the companion 

enactment, West Virginia Code § 54-2-14a (1981), except that the court order shall, in 

addition, convey title to the property. The title vested in the State “shall be defeasible 

2 We recently explained in West Virginia Department of Transportation, Division 

of Highways v. Western Pocahontas Properties, L.P., 236 W. Va. 50, 777 S.E.2d 619 

(2015), that 

[t]he challenge in assessing just compensation in a condemnation case is 

this: what uses and factors would be considered in setting the market price 

by a willing buyer and a willing seller, each acting with complete freedom 

and knowledge of the property? Every element of value which would be 

taken into consideration between private parties in a sale of property should 

be considered in arriving at a just compensation for the land proposed to be 

taken. Conversely, considerations that may not reasonably be held to affect 

market value are excluded. Essentially, any factor that a reasonable buyer 

or seller would typically consider should be included in an analysis of fair 

market value. 

Id. at 62, 777 S.E.2d at 631 (citations, internal quotation marks, and alterations omitted). 

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until the compensation and any damages are determined in the condemnation proceedings 

and the applicant has paid any excess amount into court.” Id. Regardless of which 

method is employed to obtain the specified order, commissioners are subsequently 

appointed and a report is made, and, if dissatisfied, either the State or the property owner 

may resort to a jury trial. See W. Va. Code §§ 54-2-14, -14a. 

The DOH here elected to proceed under the alternative method set forth in 

§ 54-2-14a, seeking defeasible title to the MCNB parcel. In accordance with the statute, 

the DOH was first required to “pay into court such sum as it shall estimate to be the fair 

value of the property,” plus the entirety of any anticipated damages to the residue. W. 

Va. Code § 54-2-14a; see id. § 54-2-14 (employing identical language with respect to the 

first method). The DOH takes the straightforward position that, inasmuch as the statute 

vests no one other than “it” with the prerogative to estimate fair value, the circuit court 

was without authority to condition issuance of the sought-after order on the deposit of a 

sum varying in any respect from its $417,100 tender. 

Because it faithfully adheres to the statute’s literal terms, we are convinced 

that the DOH’s interpretation should be adopted as correct. See State ex rel. State Rd. 

Comm’n, 137 W. Va. 572, 576, 73 S.E.2d 432, 434 (1952) (“The jurisdiction of a circuit 

court over a proceeding in eminent domain is statutory, which statutes, under our 

practice, must be strictly construed.” (citation omitted)); cf. King v. W. Va.’s Choice, Inc., 

234 W. Va. 440, 443, 766 S.E.2d 387, 390 (2014) (“[A] court’s duty is not to construe 

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but to apply an unambiguous statute.”). MCNB protests that the discretion afforded the 

DOH by the statute is not so absolute as to permit a tender that, it says, falls far short of 

the property’s manifest value. Our condonation of the agency’s approach would, 

according to MCNB, contravene its constitutional right to just compensation and 

effectively thrust upon it the costs of the environmental cleanup, a burden that MCNB 

contends cannot legitimately be imposed.3 

MCNB’s arguments ignore that there are two purposes to be served by the 

methodology inherent in the eminent domain statute. To be sure, the statute is designed 

to ensure just compensation for the property taken, but it accomplishes that end by virtue 

of the appointment of qualified commissioners, the preparation of a particularized report 

based on evidence obtained through the adversary process, trial de novo before a jury, 

3 According to MCNB, the State’s interest in holding a landowner accountable for 

the costs of environmental cleanup is at its least where the landowner is not responsible 

for the contamination as a matter of fact or law. MCNB insists that liability for 

remediation is restricted to “owners” and “operators” of USTs, and that, being nothing 

more than an innocent “holder” of affected property, it cannot be designated a member of 

either category. See 40 C.F.R. § 280.220 (2015) (specifying that a holder is not an owner 

liable for cleanup so long as it does not participate in the management of the UST system 

or engage in petroleum production, refining, and marketing); 40 C.F.R. § 280.230(b)(1) 

(2015) (absolving holder from liability as an operator “if there is an operator, other than 

the holder, who is in control of or has responsibility for the daily operation of the UST or 

UST system and who can be held responsible for compliance with applicable 

requirements”). MCNB also cites a letter dated September 15, 2006, from the West 

Virginia Department of Environmental Protection (“DEP”) in response to an inquiry from 

Chrite concerning the subject property, whereby a representative of the DEP’s Office of 

Environmental Remediation opined that “[t]he responsible party for remediation of 

petroleum contamination associated with the confirmed release is the owner(s) of the 

underground storage tanks at the time of the confirmed release.” 

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and the opportunity to appeal an adverse verdict. The expedited-entry provisions of West 

Virginia Code §§ 54-2-14 and 54-2-14a, however, facilitate the complementary purpose 

of ensuring that the subject property is efficiently acquired and converted to public use, 

without imposing unnecessary costs and delays on the sovereign. As such, those 

provisions admit of no room for an aggrieved landowner to preliminarily contend or to 

present evidence that the State’s estimate of just compensation is substantively 

inadequate. Instead, those opportunities are properly limited to the subsequent 

proceedings before the commissioners. Even so, 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 petition. See W. Va. Code §§ 54-2-14, -14a. 

Moreover, insofar as MCNB may ultimately sustain a loss with respect to 

its investment in the subject property, such loss will not be attributable to any expenditure 

relating to the parcel’s contamination. Assuming that the DOH’s estimate is reasonably 

correct, it is the agency that will instead spend in the neighborhood of $600,000 to 

remediate the parcel in preparation for the construction project. Were the DOH to pay 

the full amount of its $1,012,500 base valuation exclusive of cleanup costs as a 

prerequisite to access, it would yet be compelled to spend the same $600,000 on 

remediation, amounting to a total acquisition expenditure hundreds of thousands of 

dollars in excess of what even MCNB contends the property is worth. That excess would 

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not be recoverable in the subsequent proceedings under the particular facts of this case, 

given that whatever funds the DOH ultimately pays “as representing the fair market value 

of property to be acquired, the amount of the award or verdict pertaining to such property 

shall not be less than such sum.” W. Va. Code § 54-3-4.4 

4 Sections 54-2-14 and 54-2-14a contemplate otherwise, as each instructs that “[i]f 

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.” Those parallel provisions were 

made part of the condemnation statute prior to the enactment of section 54-3-4, which 

was designed specifically to implement and accommodate the provisions of the federal 

Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 

U.S.C. § 4601 et seq. The federal act and its implementing regulations endeavor, inter 

alia, to protect persons and small businesses permanently displaced “as a direct result of 

a written notice of intent to acquire or the acquisition of such real property in whole or in 

part for a program or project undertaken by a Federal agency or with Federal financial 

assistance.” Id. § 4601(6)(A)(i) (1987). The revised Statement of Just Compensation and 

Summary prepared by the DOH in support of the agency’s tender confirms that it was 

submitted “[i]n accordance with the provisions of” the federal act. 

Section 54-3-4 thus imposed a floor on condemnation awards or verdicts contrary 

to the provisions of sections 54-2-14 and 54-2-14a. The conflict is readily resolved, 

however, as § 54-3-4 specifically directs that its award-or-verdict floor applies 

“notwithstanding any other provision of law,” leaving no doubt of its primacy. See 

Benjamin v. Walker, No. 16-0228, 2016 WL 1619865 (W. Va. Apr. 19, 2016), at *__ 

(acknowledging that statutory directive applying “notwithstanding any other provision of 

law” is mandatory); cf. State ex rel. City of Jennings v. Riley, 236 S.W.3d 630, 632 (Mo. 

2007) (en banc) (“[T]o say that a statute applies ‘notwithstanding any other provision of 

the law’ is to say that no other provisions of law can be held in conflict with it. Indeed, 

the ‘Notwithstanding’ clause does not create a conflict, but eliminates the conflict that 

would have occurred in the absence of the clause.”) 

The DOH also directs our attention to West Virginia Code § 54-2-16 (1981), 

which, like § 14 and § 14a, provides for the repayment to the condemnor of any amount 

deposited in excess of the eventual commissioners’ report or jury award. By its terms, 

however, § 16 applies only to “such payment into court as is mentioned in section 

(continued . . .) 

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In reaching our decision herein, we do not hold that the State’s estimate 

pursuant to § 14 or § 14a is always insulated from review. Under exceedingly narrow 

circumstances, an aggrieved property owner may seek to have the tender set aside. The 

nature of such circumstances is indicated by resort to other aspects of the eminent domain 

statute. For example, where the commissioners’ report is accepted by the parties without 

exception or jury demand, the circuit court may yet decline to confirm the report if “good 

cause be shown against it, or it be defective or erroneous on its face.” W. Va. Code § 54­

2-10 (1967). In an analogous context, the right of entry afforded a private condemnor 

upon payment of the just compensation ascertained by the commissioners may not be 

stayed or enjoined “unless it be manifest that the applicant is insolvent or that it or its 

[authorized representatives] are transcending their authority, or that such interposition is 

necessary to prevent injury which cannot be adequately compensated in damages.” Id. § 

54-2-13 (1981). We discern that a comparable standard should apply to the State’s 

estimate in advance of entry. Thus, the preliminary estimate of just compensation 

formulated by the State or its political subdivision pursuant to West Virginia Code § 54­

2-14 or § 54-2-14a may be challenged only in the most unusual of cases, i.e., where it is 

facially or patently defective, the result of an ultra vires act, made in objective bad faith, 

or is otherwise justified by good cause.5 

thirteen of this article.” Because the scope of § 13 is limited to private condemnors, it is 

outside the reach of § 54-3-4, which applies strictly to public agencies. 

5 We make plain by our decision today that a mere disagreement concerning the 

substantive adequacy of the estimate does not constitute good cause sufficient to justify 

(continued . . .) 

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The DOH’s consideration of the costs of environmental remediation in 

formulating its estimate of just compensation was not beyond its authority, nor was it 

done in bad faith. Indeed, the DOH’s evaluation is facially rational, and, as Chief Justice 

Ketchum explains more fully in his concurring opinion, it finds support in the custom and 

practice of other jurisdictions.6 Inasmuch as no basis exists to disturb the DOH’s just 

compensation estimate, the circuit court clearly erred as a matter of law in declining to 

issue the agency’s requested order granting it the right of entry and defeasible title to the 

subject property upon the deposit of $417,100. The third Hoover factor thus strongly 

supports the grant of extraordinary relief, as do the first and second, given that the DOH 

judicial intervention. See Murray v. State Farm Fire & Cas. Co., 203 W. Va. 477, 485, 

509 S.E.2d 1, 9 (1998) (instructing that proper application of the construction canons of 

ejusdem generis and noscitur a sociis leads to the conclusion that “in an ambiguous 

phrase mixing general words with specific words, the general words are not construed 

broadly but are restricted to a sense analogous to the specific words”). 

6 The majority view is that evidence of environmental contamination and its 

associated cleanup costs is admissible in eminent domain proceedings. The courts in the 

majority often reason that admissibility of such evidence reflects the realities of current 

business practice, in that banks routinely insist on environmental assessments of suspect 

property before financing its purchase, and appraisers habitually account for potential 

remediation expenses in providing contingent valuations. See 4 Julius L. Sackman, 

Nichols on Eminent Domain, § 13.10 (3d ed. 2015). A significant minority of courts 

exclude contamination evidence, however, particularly where the landowner’s liability 

therefor has not been established. The principal concern for the minority is that the 

owner will receive just compensation based on the property’s depressed price, and then 

be compelled to bear cleanup costs equivalent to the shortfall without resort to 

recompense. See id. Courts espousing the minority view also express concern regarding 

the complexity of proof and the increased expense to the sovereign of litigating the 

matter. See id. 

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would be statutorily barred from recovering the excess deposited if it were compelled to 

defer its challenge to the circuit court’s interlocutory order until an appeal of the final 

condemnation judgment. Moreover, the DOH’s petition in this matter has given us 

occasion to address a new and important issue of first impression in this jurisdiction, such 

that the fifth Hoover factor also counsels our intervention. In light of the entirety of the 

circumstances, we adjudge that our issuance of a writ of prohibition is appropriate and 

warranted. 

IV. CONCLUSION 

In accordance with the foregoing, we grant the petition for extraordinary 

relief filed by the DOH and prohibit enforcement of the circuit court’s order of 

September 18, 2015, insofar as it conditions the right of entry and grant of defeasible title 

to the subject property on the agency’s deposit of any amount exceeding its estimate and 

tender of $417,100. 

Writ granted. 

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