IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2019 Term

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No. 18-1012

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STATE OF WEST VIRGINIA ex rel. WEST VIRGINIA DEPARTMENT OF 

TRANSPORTATION, DIVISION OF HIGHWAYS,

Petitioner

v.

HONORABLE SUSAN B. TUCKER, Judge of the Circuit Court of Monongalia County; 

MILEGROUND DEVELOPMENT INDUSTRIES, INC.; FRONTIER WEST 

VIRGINIA, INC.; THE CITY OF MORGANTOWN, WEST VIRGINIA; INSITE 

MEDIACOM 2, LLC; FIRST COMMUNITY BANK; EAN HOLDINGS, LLC; 

WHOLESALE TIRE, INC.; BISON WV, LLC; and SHERIFF/TREASURER OF 

MONONGALIA COUNTY, 

Respondents

____________________________________________________________

ORIGINAL PROCEEDING IN PROHIBITION

WRIT GRANTED

____________________________________________________________

Submitted: February 6, 2019

Filed: February 27, 2019

Michael J. Folio, Esq.

Travis S. Haley, Esq.

West Virginia Department of 

Transportation, Division of Highways

Charleston, West Virginia

Counsel for Petitioner

Debra A. Bowers, Esq.

Matthew D. Elshiaty, Esq.

KAY CASTO & CHANEY PLLC

Morgantown, West Virginia

Counsel for Respondent

Mileground Development Industries

Inc.

James V. Kelsh, Esq.

Michael C. Cardi, Esq.

BOWLES RICE LLP

FILED

February 27, 2019

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Morgantown, West Virginia

Counsel for Respondent 

The City of Morgantown

Stephen J. Golder, Esq.

JENKINS FENSTERMAKER, PLLC

Huntington, West Virginia

Allison J. Farrell, Esq.

JENKINS FENSTERMAKER, PLLC

Clarksburg, West Virginia

Counsel for Respondent EAN 

Holdings, LLC

William J. O’Brien, Esq.

Lauren K. Turner, Esq.

Kylie D. Barnhart, Esq.

STEPTOE & JOHNSON PLLC

Bridgeport, West Virginia

Counsel for Respondent Wholesale 

Tire, Inc.

CHIEF JUSTICE WALKER delivered the Opinion of the Court.
i

SYLLABUS BY THE COURT

1. “A writ of prohibition will not issue to prevent a simple abuse of 

discretion by a trial court. It will only issue where the trial court has no jurisdiction or 

having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.” Syllabus 

Point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).

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.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199 

W. Va. 12, 483 S.E.2d 12 (1996).
ii

3. “‘The question what is a public use is always one of law.’ Syllabus 

Point 2, in part, Hench v. Pritt, 62 W. Va. 270, 57 S.E. 808 (1907).” Syllabus Point 2, 

Gomez v. Kanawha Cnty. Comm’n, 237 W. Va. 451, 787 S.E.2d 904 (2016). 

4. “In a condemnation proceeding, the circuit court is charged with 

determining whether the applicant has a lawful right to take property for the purposes stated 

in the condemnation petition. The circuit court determines, as a matter of law, whether a 

property may lawfully be taken. The property may lawfully be taken if the applicant’s 

expressed use of the property is, in fact, a public one, and the condemnation is not impelled 

by bad faith or arbitrary and capricious motives.” Syllabus Point 1, Gomez v. Kanawha 

Cnty. Comm’n, 237 W. Va. 451, 787 S.E.2d 904 (2016).
1

WALKER, Chief Justice:

The West Virginia Department of Transportation, Division of Highways 

(DOH) filed petitions in the Circuit Court of Monongalia County to condemn private 

property for use in expansion of a highly-trafficked road and moved for immediate right of 

entry and transfer of defeasible title. Although all parties agreed that the condemnation 

was for a public use, the circuit court held the motion in abeyance in lieu of denial and 

directed the DOH to go back to its engineers for additional consideration of perceived 

traffic safety issues and alternative plans so as to minimize the impact on local businesses. 

The circuit court then set the matter for an evidentiary hearing. The DOH filed a petition 

for a writ of prohibition arguing that the circuit court exceeded its authority. We agree and 

grant the DOH’s writ of prohibition. The project is indisputably for a public use, and the 

circuit court exceeded its legitimate authority and committed clear error by hindering the 

DOH’s exercise of its legislatively-granted discretion with respect to planning and 

engineering the road expansion project. 

I. FACTUAL AND PROCEDURAL BACKGROUND

The DOH filed four petitions in the Circuit Court of Monongalia County to 

condemn private property for public use in the expansion of approximately 0.8 miles along 

U.S. 119 (the Mileground) from three lanes to five lanes in an effort to create an express 

route of egress out of Morgantown to Interstate 68 (Mileground expansion project). A 
2

hearing on one of the petitions1 was held on September 7, 2018, and the DOH and affected 

businesses operating on the properties to be condemned were heard. The DOH contended,

and the affected businesses did not dispute, that the Mileground expansion project was one 

for public use to promote traffic flow and that a finding of public use was sufficient to grant 

the DOH right of access. The DOH was prepared to deposit $418,000.00 with the circuit 

court for its right of entry. At the hearing, the affected businesses expressed their concern 

that, due to the proximity of the businesses to the road, further negotiations and discussions 

would be helpful in order to determine accessibility to the businesses or a potential increase 

in valuation should the businesses need to relocate altogether. 

The circuit court expressed similar concern, namely that the Mileground 

expansion project had an unnecessary impact on local businesses and presented safety 

concerns that it did not feel had been adequately addressed. As a result, the circuit court 

twice denied DOH’s motion for immediate entry on the record despite counsel for DOH’s 

assertions that the finding of public use was the only inquiry before the circuit court. 

Ultimately, the circuit court asked counsel for DOH whether it would prefer the circuit 

court to deny the motion outright or hold it in abeyance pending an evidentiary hearing at 

 

1 Of the four petitions, three of them, Parcels 11, 12, and 15-2, were assigned to the 

respondent judge. At issue in this case is the petition and hearing on Parcel 15-2. The 

fourth parcel was assigned to a different judge within the circuit who concluded that the 

project was for a public use and granted right of entry. Although Petitioner contends that 

such finding is binding as it relates to all condemnation petitions necessary for the 

Mileground expansion project, we need not reach that issue in light of the relief granted in 

this Opinion. 
3

which all parties could discuss alternative plans for the project so as to limit the effect on 

local businesses and to give the DOH time to sort out the traffic engineering issues 

perceived by the circuit court. DOH then filed a petition for writ of prohibition with this 

Court. 

II. STANDARD OF REVIEW

“A writ of prohibition will not issue to prevent a simple abuse of discretion 

by a trial court. It will only issue where the trial court has no jurisdiction or having such 

jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.”2 In evaluating the 

propriety of granting such a remedy where it is alleged that the circuit court has acted in 

excess of its legitimate powers, we have held:

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 

 

2 Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 

(1977). 
4

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

weight.3

With these considerations in mind, we turn to the merits of the underlying petition for writ 

of prohibition. 

III. DISCUSSION

As noted by counsel for all parties, the question for the circuit court’s 

resolution at the right of entry hearing was one of law and simply required the court to 

determine whether or not the project was one for a public use.4 This Court dealt with this 

issue at length in Gomez v. Kanawha County Commission,

5 when we held that “[t]he 

question what is a public use is always one of law.”

6

 We noted in Gomez that the inquiry 

is a basic one: “[t]o qualify as a lawful public use is simple: ‘The public must have some 

direct and certain right, or interest in it, or control over it.’”7 West Virginia Code § 54-1-

2(a) (2016 Repl. Vol.) provides, in relevant part, that private property may be taken or 

 

3 Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d (1996).

4 The affected businesses filed summary responses to Petitioner’s writ of prohibition 

reiterating that they do not dispute that the project is one for a public use and conceding 

that they are not in a position to object to the relief requested by DOH in light of the circuit 

court’s limited role in condemnations for public use. 

5 237 W. Va. 451, 787 S.E.2d 904 (2016).

6

Id. at syl. pt. 2 (quoting Syl. Pt. 2, in part, Hench v. Pritt, 62 W. Va. 270, 57 S.E. 

808 (1907)). 

7

Id. at 460, 787 S.E.2d at 913 (quoting Pittsburg Hydro-Elec. Co. v. Liston, 70 W. 

Va. 83, 88, 73 S.E. 86, 90 (1911)). 
5

damaged for a public use such as “[f]or the construction, maintenance and operation of 

railroad and traction lines . . . canals, public landings, wharves, bridges, public roads, 

streets, alleys, parks and other works of internal improvement, for the public use.” 

As we held in Gomez, the state’s right of entry to property taken for a public 

use under these circumstances can only be overcome by a showing of egregious bad faith 

in the taking:

In a condemnation proceeding, the circuit court is 

charged with determining whether the applicant has a lawful 

right to take property for the purposes stated in the 

condemnation petition. The circuit court determines, as a 

matter of law, whether a property may lawfully be taken. The 

property may lawfully be taken if the applicant’s expressed use 

of the property is, in fact, a public one, and the condemnation 

is not impelled by bad faith or arbitrary and capricious 

motives.[8]

And, “[i]n the absence of egregious bad faith, if the use is a public one, the 

necessity for the designated property is not open to judicial review.”

9

 In other words, 

where, as in this case, there are no allegations of bad faith or arbitrary or capricious 

motives, resolution of the question of public use is the end of the judicial inquiry. We have 

stated that

“[w]hen the court has determined that the use for which 

property is condemned is a public use, its judicial function is 

 

8

Id. at syl. pt. 1. 

9

Id. at 460, 787 S.E.2d at 913 (quoting U.S. v. 49.79 Acres of Land, More or Less, 

Situate in New Castle Cty., State of Del., 582 F. Supp. 368, 372 (D. Del. 1983)).
6

gone and the legislative discretion is unrestrained. Whether the 

proposed plan will accomplish the end proposed, or to what 

extent it will be beneficial to the public, are not matters to be 

determined by the courts; these are matters belonging to the 

legislative discretion.”

[10] 

Likewise, “‘[o]nce the question of the public purpose has been decided, the amount and 

character of land to be taken for the project and the need for a particular tract to complete 

the integrated plan rests in the discretion of the legislative branch.’”

11

 “Stated differently, 

‘[w]hether it is expedient, appropriate or necessary to provide for a public service of a 

particular kind or character, is a legislative, not a judicial, question.’”12

Counsel for the DOH acknowledged before the circuit court that the property 

owners had some concerns as to ingress and egress into the actual property, but that those 

concerns were not at issue in a right-of-entry hearing. Counsel for the business owners

agreed. Counsel for EAN Holdings, LLC, clearly articulated its lack of objection to a 

finding of public use:

[O]ur concern during the construction and upon completion, is 

having access into the property, as it is our understanding that 

once the road is widened, it will essentially eliminate access to 

the front of the building, because it’s situated, you know, fairly 

close to the road now, and it will be essentially up on the road 

once the construction is completed. So, we certainly want to 

preserve all of our rights and defenses to the, you know, the 

 

10 Id. (quoting Charleston Nat. Gas Co. v. Low & Butler, Trustees, 52 W. Va. 662, 

664, 44 S.E. 410, 411 (1901)). 

11 Id. at n.28 (citing Berman v. Parker, 348 U.S. 26, 35-36 (1954)).

12 Id. at 460, 787 S.E. at 913 (quoting Syl. Pt. 2, Pittsburg Hydro-Elec. Co., 70 W. 

Va. 83, 73 S.E. 86).
7

commissioners hearing later on down the road. We don’t have 

any legal objection that this is a public right of way project.

Counsel for Mileground Development Industries, Inc., also stated on the record: “Your 

Honor is correct about that area and our concerns being the access and being that close to 

the businesses. As Ms. Farrell said, we don’t have legal argument as to this in the public’s 

use. We understand what the Division of Highways is attempting to do here.” Likewise, 

Counsel for Wholesale Tire, Inc., stated on the record: “Your Honor, we agree with 

Mileground Development. We don’t have – we don’t contest that this is a public use and 

a public need. But we would ask that there be a 90 day period before the grant of immediate 

entry to give our client time to meet with Mr. Tackett or someone else from the DOH.” All 

parties below agreed that the hearing was limited to DOH’s motion for immediate entry 

and that ruling on such motion required only that the circuit court determine whether the 

project was for public use, which no one disputed. The circuit court, however meaningful 

its intentions, strayed beyond those limits and into the province of the Legislature by 

questioning the propriety of the project itself and alternative options for engineering the 

project. 

All parties agreed below, and agree before this Court, that the project is one 

for public use. The hearing transcript makes it apparent that the additional hearing was 

aimed at requiring the DOH to convince the project engineers to redesign the project to suit 

the businesses’ concerns and to address safety issues perceived by the circuit court. While 

those concerns are well-founded, and may need to be addressed through negotiation and 
8

discussion with the DOH as to alternative access routes or an increased valuation of the 

properties, those concerns were not appropriately before the circuit court. Accordingly, the 

circuit court exceeded its legitimate authority by effectively denying or failing to rule on 

the only issue properly before it at the right-of-entry hearing, that is, whether the project is 

for a public use. Because that issue was undisputed below, and is undisputed before this 

Court, we find that the circuit court clearly erred as a matter of law in failing to grant 

DOH’s motion for immediate entry and should not have held the motion in abeyance 

pending additional consultation with DOH engineers as to how the project might be 

modified.

IV. CONCLUSION

For these reasons, we grant the writ of prohibition and further direct the 

circuit court to grant DOH’s motion for immediate entry and defeasible title to the subject 

properties upon DOH’s payment into court for the estimated fair value of the property in

compliance with West Virginia Code § 54-2-14a. 

Writ granted.