dissenting:
I dissent from the majority opinion in these combined cases because I do not think there is any provision under the law to authorize the State Road Commissioner to institute eminent domain proceedings to pay for damages caused to petitioners’ property by water negligently or otherwise released from the ground several hundreds of feet from the petitioners’ property *316from the property taken under an eminent domain proceeding, which had no connection therewith. Therefore, mandamus would not lie to compel the improper or illegal action to be taken and would amount to an indirect suit against the state, in violation of Article VI, Section 35, of the Constitution of West Virginia.
It is true that Article III, Section 9, of the West Virginia Constitution provides that private property shall not be taken or damaged for public use without just compensation but it further provides that the compensation to the owner shall be ascertained in such manner as may be prescribed by general law. There is no general law to allow eminent domain proceedings to be instituted to condemn the property alleged to have been damaged in the instant case and the provision of the Constitution providing that private property shall not be taken for public use without just compensation is not self-executing as far as the State of West Virginia is concerned because under the provisions of Article VI, Section 35, of the Constitution of West Virginia: “The State of West Virginia shall never be made defendant in any court of law or equity * * *."
The general law enacted by the legislature with regard to jurisdiction in eminent domain proceedings is contained in Code, 54-2-1, and provides as follows: “In any case in which property may lawfully be taken for a public use, application may be made by petition to the circuit court or the judge thereof in vacation, of the county in which the estate is situated, * *
Code, 54-2-9 and 10, both as amended, provide for the only method in eminent domain proceedings for compensation to the owner of private property taken or damaged under the provisions of the Constitution, and that is for the property proposed to be taken and for the damage to the residue of such real estate beyond all benefits which may be derived in respect to said residue. Code, 54-2-9, as amended, refers to such damage that may be allowed by commissioners and Code, 54-2-10, as amended, refers to such damage that may be ascertained by a jury that may be allowed in such proceedings in this State. See Strouds Creek and Muddlety *317Railroad Company v. Herold, et al., 131 W.Va. 45, 45 S.E.2d 513. Chapter 54 of the Code of West Virginia is the only general law relative to eminent domain proceedings and eminent domain statutes are strictly construed. State of West Virginia by the State Road Commission v. Bouchelle, 137 W.Va. 572, 73 S.E.2d 432.
It has been repeatedly held that damage to the land caused by trespass thereon or by negligent or unskillful manner of construction is not recoverable in condemnation proceedings even where such damage is done to the residue of such property taken but will constitute a basis for a separate and independent action. Buckhannon & Northern Railroad Co. v. Great Scott Coal & Coke Co. et al., 75 W.Va. 423, 83 S.E. 1031; State of West Virginia by the State Road Commission v. Boyd, et al., 129 W.Va. 715, 41 S.E.2d 665. It was held in the Strouds Creek & Muddlety Railroad Co. v. Herold, supra, case that: “The evidence tends to show that the location and the construction of the drains were the result of negligent or unskillful conduct of the applicant. Damages to the residue of land not taken which result from the negligent or unskillful conduct of the condemnor in the construction of a railroad or other public improvement upon the land taken may not be recovered in a condemnation proceeding. Damages so inflicted constitute the basis for a separate and independent action.”
In the case at bar no property of the petitioners was taken for public use. Therefore, there could not be any damage to the residue because no property was taken belonging to the petitioners. Then, too, it is clear that the damage to petitioners’ property was caused by trespass or negligence in the same manner as if a State Road Commission truck used in the construction of a highway had run into the petitioners’ property and damaged it. The question involved in this proceeding was decided by this Court by a unanimous decision in the case of State ex rel. Firestone Tire & Rubber Co. v. Ritchie, 153 W.Va. 132, 168 S.E.2d 287, in which it was held that mandamus would not lie in such a case with the facts identical to the facts in this case and the property involved in the same location. It is true that most of the damage in the Firestone case was to personal property but it also involved *318real property inasmuch as a leasehold was also involved. In a more recent case by a unanimous decision of this Court in the case of Wheeling Electric Company v. Gist, 154 W.Va. 69, 173 S.E.2d 336, it was held that damage negligently caused in a condemnation proceeding cannot be obtained in such proceeding but must be the subject of a separate ¿ction.
It was pointed out in the Firestone case that where the Constitution provides that private property shall not be taken for public usé without just compensation the general law must provide for the compensation for such property taken or damaged unless the provisions in the Constitution are self-executing, such as against public utilities and municipal corporations authorized to institute eminent domain proceedings by virtue of the fact that they can be sued by common-law action but the State of West Virginia cannot be sued by common-law action. This matter is discussed in 2 Nichols on Eminent Domain, Third Edition, at page 498, as follows: “The ‘damage clause’ is generally held to be self-executing; that is, if the legislature authorizes the construction of a public work which may injuriously affect neighboring property and fails to provide a special procedure for ascertaining and recovering damages, the statute authorizing the work is not treated as unconstitutional, but the owner of the injured property is allowed to recover his damages in an ordinary civil action.”
There appears to be some confusion in some comparatively recent cases with regard to whether the State may be compelled by mandamus to institute eminent domain proceedings to pay for damages to property caused in the construction of a highway which had not been taken for the actual construction of the highway. Riggs v. State Road Commissioner, 120 W.Va. 298, 197 S.E. 813; State ex rel. Griggs v. Graney, 143 W.Va. 610, 103 S.E.2d 878; State ex rel. Queen v. Sawyers, 148 W.Va. 130, 133 S.E.2d 257. In the Griggs, supra, case, it was held that: “If a highway construction or improvement results in probable damage to private property without an actual taking thereof and the owners in good faith claim damages, the State Road Commissioner has the statutory duty to institute proceedings within a reasonable time after completion *319of the work to ascertain damages, if any, and, if he fails to do so, after reasonable time, mandamus will lie to require the institution of such proceedings.” The cases of State ex rel. Lynch v. State Road Commission, 151 W.Va. 858, 157 S.E.2d 329 and State ex rel. Teter v. State Road Commission, 152 W.Va. 805, 166 S.E.2d 757, follow the Riggs and Griggs cases. Both of these cases cite the syllabus point in the Griggs case as authority in the disposition of these cases. It is not clear in some of these cases as to whether the damage claimed for property not taken was damage to the residue which would be proper consideration for recovery of damage in eminent domain proceedings under Chapter 54 of the Code of West Virginia, the general law for the execution of provisions of the Constitution providing that private property shall not be taken or damaged without just compensation. However, in the Lynch case there is no question but that the damage was not damage to the residue of any property taken for the construction of the highway. It was separated for some considerable distance from the property taken for the easement for the construction of the highway, and water had flowed over other land between the highway and the property alleged to have been damaged, and yet the writ of mandamus was awarded to compel the State Road Commissioner to institute eminent domain proceedings to ascertain damages to the petitioner’s property. I am of the opinion that this case is clearly wrong and if any damage was caused to the petitioner’s property by virtue of any negligent action on the part of the State Road Commission in the construction of the highway that a claim should have been made before the Court of Claims in an effort to have the legislature declare it to be a moral obligation and appropriate the money to pay for any such damage, or that an action to recover damages should have been instituted against the contractor who built the road. In the Teter, supra, case it is not clear as to whether the water which was cast onto petitioners land could be considered as damage to the residue caused by the construction of the highway from property taken from the petitioner for the construction thereof.
In the instant case it is clear that the damage to the petitioners’ property was caused by a trespass or negligence, and *320that their properties lie on the other side of a railroad track and several hundred feet from the highway which had been constructed. The petitioners’ property had nothing whatsoever to do with such construction. The damage was caused by either trespass or negligence which is subject to a separate common-law action and in such case there is no provision for eminent domain proceedings to compensate the petitioners for damage to their property.
It is true that if a public utility had negligently caused such damage in an authorized construction, under Chapter 54, the Eminent Domain Statute, a separate action could be brought against the public utility. It is also true that a separate action may be maintained against the contractor in the case at bar. Whitney v. Ralph Myers Contracting Corp., 146 W.Va. 130, 118 S.E.2d 622; Perdue v. S. J. Groves & Sons Co., et al., 152 W.Va. 222, 161 S.E.2d 250. A claim could also be filed in the Court of Claims against the State Road Commissioner, as indicated above.
For the reasons stated in this dissenting opinion, I would deny the writ for the reason that eminent domain proceedings by the state are not authorized in such cases.