The opinion
Calhoun, Judge,
dissenting:
Respectfully, I dissent. I would deny the relief sought in each of these mandamus proceedings on the ground that eminent domain is not a proper procedure by which the landowners in these cases may obtain a recovery of damages from the state road commission.
In my judgment, the Court in these cases, for the first time, is requiring the state road commissioner, (or the state commissioner of highways), to institute eminent domain proceedings in order to permit recovery for damages which have not been caused purposely or designedly and which, at most therefore, were caused negligently to property owners, wholly contrary to any intent or purpose of any representative of the state. For the first time, I believe, the Court is requiring the state road commissioner to institute eminent *321 domain proceedings to ascertain the amount of damages which were not, in any sense or degree, inflicted or caused “for public use,” and accordingly the Court is ordering that such damages, when the several amounts thereof are ascertained in wholly inappropriate proceedings, shall be paid by the state road commission from funds which may be expended only “for public use” or for a public purpose.
“Eminent domain is generally defined as the power of the nation or a sovereign state to take, or to authorize the taking of, private property for a public use without the owner’s consent, conditioned upon the payment of just compensation.” (Italics supplied.) 26 Am. Jur. 2d, Eminent Domain, Section 1, page 638. “The general rule is that in the exercise of the right of eminent domain private property can be taken only for a public purpose or use. In other words, it is settled generally that private property cannot be taken for other than a public use under any circumstances.” (Italics supplied.) 26 Am. Jur., Eminent Domain, Section 25, page 668. “The right of eminent domain is defined to be the right on the part of the state to take or control the use of private property for the public benefit when public necessity demands it.” (Italics supplied.) 6 M.J., Eminent Domain, Section 3, page 690. To the same effect, see 29A C.J.S., Eminent Domain, Section 1, page 161. Implicit in these and other definitions of eminent domain is the basic principle that the inherent power of the state to take or to damage private property exists only when public purposes are thereby subserved and the corollary that the state cannot expend public funds in the taking or damaging of private property by eminent domain proceedings unless the public purposes are thereby promoted or subserved.
“It is fundamental that the power to appropriate private property for public use is an attribute of sovereignty and is essential to the existence of government. The power of eminent domain does not depend for its existence on a specific grant in the Constitution; it is inherent in sovereignty and exists in a sovereign state without any recognition thereof in the Constitution. It is founded on the law of necessity. The provisions found in most of the state constitutions relating to the taking of property for the *322 public use do not by implication grant the power to the government of the state, but limit a power which would otherwise be without limit. This power existed in each of the original thirteen states immediately on the assumption of independence; and on the admission of a new state it at once becomes entitled to, and possessed of, all the rights which belonged to the original states, including the power of eminent domain, free from any restrictions except those contained in its constitution and that of the United States.” 26 Am. Jur. 2d, Eminent Domain, Section 2, pages 639-40.
Article III, Section 9, of the Constitution of West Virginia provides: “Private property shall not be taken or damaged for public use, without just compensation; * * * and when private property shall be taken, or damaged, for public use, * * * the compensation to the owner shall be ascertained in such manner, as may be prescribed by general law; * * (Italics supplied.) This constitutional provision does not create, broaden or enlarge the inherent power of the state to take or to damage private property for public purposes. Rather it merely restricts the power by requiring payment of just compensation. State v. Cooper, 152 W.Va. 309, 312-13 , 162 S.E.2d 281, 283 ; State v. Professional Realty Company, 144 W.Va. 652, 657 , 110 S.E.2d 616, 620 .
The purposes for which the state may pay compensation from public funds for private property taken or damaged are measured and limited, therefore, by the attributes of sovereignty inherent in the state. Such purposes have not been enlarged by the Constitution. They have not been, and constitutionally could not be, enlarged by statute.
Early in the history of the state, this Court, in the first point of the syllabus of F. R. B. Cemetery Ass’n. v. Redd, 33 W.Va. 262 , 10 S.E. 405 , made the following statement of an obvious, fundamental constitutional principle: “Under our constitution private property can be taken only for public use.” See also Gauley & Summersville Railroad Co. v. Vencill, 73 W.Va. 650 , 80 S.E. 1103 ; Hench v. Pritt, 62 W.Va. 270 , 57 S.E. 808 ; Varner v. Martin, 21 W.Va. 534 . “Whether the use for which private property may be condemned is public, *323 is a question for judicial determination.” (Italics supplied.) Gauley & Summersville Railroad Co. v. Vencill, 73 W.Va. 650 , pt. 3 syl., 80 S.E. 1103 . To the same effect, see State v. Bouchelle, 137 W.Va. 572 , pt. 2 syl., 73 S.E.2d 432 .
Article II, Section 6, of the West Virginia Constitution of 1863 provided: “Private property shall not be taken for public use without just compensation.” In the Constitution of 1872, the words “or damaged” were inserted; but the qualifying, restrictive phrase, “for public use”, remains unchanged. The inherent power of the sovereign to take or to damage private property continues to be restricted to a taking or damaging “for public use”. Beyond that point, the right of the owner of private property remains inviolate against any invasion by the inherent sovereign powers of the state.
I recognize that the state, under our present constitutional provision, has the right to “damage” private property, even though no portion of the property is “taken,” but this right of the state remains restricted to damage caused by the state “for public use”. State ex rel. Teter v. State Road Commission, 152 W.Va. 805 , 166 S.E.2d 757 ; Javins v. City of Dunbar, 110 W.Va. 271 , 157 S.E. 586 .
I readily recognize that if, in order to facilitate the proper construction by the state of a public highway, it is necessary to change the natural flow of surface water in such a manner that it is cast in a body upon the property of a landowner, as in the Teter case, with the result that the land is damaged, though not taken, the damage thereby inflicted is “for public use”. Public purposes are thereby subserved and the landowner has a right, in an eminent domain proceeding, to have the amount of his damages ascertained so he may be compensated from public funds.
I recognize that if in the proper construction by the state of a public highway, surface water is necessarily gathered in side ditches and thereafter cast in a body from a culvert onto privately-owned lands, with a consequent damage to such lands, such damage is necessarily, designedly and properly *324 caused “for public use”. Public purposes are thereby furthered and subserved and the owner of the damaged land is entitled to have the amount of his damage ascertained in an eminent domain proceeding and to receive “just compensation” therefor from public funds. See State ex rel. Queen v. Sawyers, 148 W.Va. 130 , 133 S.E.2d 257 .
No “public use”, or public purpose whatsoever, was sub-served by the unintentional drainage of the abandoned mine in this case. Certainly no “public use” and no public purpose or benefit accrued or was subserved by the unfortunate flooding of the Town of Montgomery with the unfortunate, distressing result that properties of so many citizens were severely damaged without a showing of any fault whatsoever on the part of the property owners.
A landowner is not entitled to a recovery of damages from the state road commission, to be paid from public funds, merely because his property is damaged unintentionally, fortuitously or negligently as a mere incident of the construction of a public highway when no “public use” or public benefit results therefrom.
The state did not purposely or designedly release the water from the abandoned mine in the instant case. There is nothing reflected from the record to disclose any basis for a reasonable anticipation or belief that the great volume of water was there impounded.
The state, through the construction contractor, was not dealing with known surface water or a drainage situation in this case. The concealed impoundment of water obviously was caused by the action of the operator who mined the coal combined with the operation of the forces of nature which permitted the impoundment of water in the abandoned mine as a consequence of natural seepage or percolation. Ultimately it was the operation of the forces of nature, unattended by any human being, which caused the pressure of the impounded water to break through the surrounding subsurface which had been weakened by the previous excavation by the employees of the construction contractor.
*325 Recently, in the third point of the syllabus of State ex rel. Firestone Tire & Rubber Co. v. Ritchie, 153 W.Va. 132 , 168 S.E.2d 287 , this Court stated: “The general rule is that damages resulting from negligence, nuisance and trespass are not recoverable in eminent domain proceedings but are subject to independent actions for damages.” The fourth point of the syllabus of the same case quotes the syllabus of Mahone v. The State Road Commission of West Virginia, 99 W.Va. 397 , 129 S.E. 320 , as follows: “The State Road Commission of West Virginia is a direct governmental agency of the State, and as such is not subject to an action for tort.” If there is liability upon the state in this case, it must be predicated on negligence or a tort. In that area, as distinguished from eminent domain proceedings to take or to damage private property for public use, the governmental immunity of the state must be recognized and applied. For cases of that character, in my opinion, the State Court of Claims has been created to afford a forum for assertion of claims against the state.
The following statement appears in 27 Am. Jur. 2d, Eminent Domain, Section 481, page 419: “Circumvention of immunity from tort liability for negligence of governmental bodies, under the theory that by negligence of public officers or agents private property was ‘taken’ or ‘damaged,’ so that compensation must be paid under eminent domain provisions of the appropriate constitution, has been repeatedly refused where the activities negligently engaged in or carried on were the mere performance of some public function or duty unrelated to a deliberate taking or necessary damaging of private property, and constituted mere tortious acts, not the necessary consequence or result of some public undertaking or project.” See also Buckhannon & Northern Railroad Co. v. Great Scott Coal & Coke Co., 75 W.Va. 423, 439-40 , 83 S.E. 1031, 1037 ; Watts v. Norfolk & W. R. Co., 39 W.Va. 196 , 19 S.E. 521 .
The majority opinion avoids reference to negligence in the syllabus. This pivotal, novel and highly significant portion of the Court’s decision is almost hidden in a long paragraph in the body of the opinion where the following language appears: “* * * however, we are of the view that if ‘private *326 property’ is ‘damaged’ by the negligence of the State in the construction of a public highway, such negligence is not a bar to recovery by the injured party in eminent domain and no such strict application should be given to the above-quoted language from Article III, Section 9, of the Constitution of this State. * * This language troubles me for the following reasons: (a) It seems to imply that the constitutional provision is a grant of power in eminent domain; (b) it holds that recovery may be had in eminent domain for damages caused to private property by simple negligence on part of representatives of the state; (c) it seems to imply that recovery may be had in eminent domain if the damage caused is a mere unintentional incident, as distinguished from a proper or essential requirement of the highway construction; and (d) it implies that it is not essential to recovery of damages against the state in eminent domain that tire land be damaged “for public use” and to facilitate the public purpose of public highway construction.
I believe that the Court’s decision in this case invites a deluge of mandamus proceedings to require institution of eminent domain proceedings for recovery of damages from the state and its subdivisions for damages caused to private property as a consequence of mere negligence, without regard to the question whether such damages are caused “for public use” and for public benefit. If a bulldozer or a power shovel owned and used by the state or a construction contractor, in connection with construction, maintenance or repair of a state highway, overturns and demolishes a privately-owned dwelling, it seems to me that the present case furnishes a precedent for recovery of damages by eminent domain. A similar situation would arise if, in connection with the construction, maintenance or repair of a state highway, employees of the state or a construction contractor, in the use of machinery or otherwise, negligently causes a nearby dwelling to be destroyed by fire.
We have held that a contractor engaged in construction of a public highway under a contract with the state is absolutely liable for damages proximately caused to nearby private property by the necessary use of explosives in connection with *327 the highway construction project. Implicit in these decisions, I believe, is the proposition that, though the state caused the explosives to be used for public purposes, there could be no recovery against the state in such cases because of governmental immunity. Perdue v. S. J. Groves and Sons Company, 152 W.Va. 222 , 161 S.E.2d 250 ; Whitney v. Ralph Myers Contracting Corporation, 146 W.Va. 130 , 118 S.E.2d 622 . See also Konchesky v. S. J. Groves & Sons Co., 148 W.Va. 411 , 135 S.E.2d 299 . Has the state, as a consequence of the present case, lost the benefit of its governmental immunity in such cases, particularly in case of negligent or excessive use of explosives at its instance and under its directions? May recovery now be had against the state by eminent domain where it appears that, in connection with the construction, maintenance or repair of a state highway, explosives are used excessively, unnecessarily or negligently and private property is thereby damaged?
In 2 A.L.R.2d 677 , there appears an annotation of the subject of taking or damaging private property by eminent domain for public purposes. Numerous court decisions which, in my opinion, sustain the position I have undertaken to express in this dissenting opinion are listed under Section 5, beginning on page 694 and Section 6, beginning on page 699. Reference is here made to the court decisions there listed.