dissenting:
In my opinion, the award of a writ of prohibition in this proceeding is unwarranted, therefore, I dissent.
*579R. H. Dunn is the owner of two lots or tracts of land situate south of the southern boundary line of Route 60, in the town of South Charleston, Kanawha County, West Virginia. Janet A. Dunn is the wife of R. H. Dunn.
Three parcels of land located along the southern boundary line of Route 60 in the town of South Charleston are involved in the proceeding in eminent domain hereinafter mentioned. One parcel consists of 6,549 square feet, extending approximately 1000 feet from the eastern boundary line of R. H. Dunn’s land in a westerly direction to a concrete driveway and is about six feet wide. The 6,549 square feet will be hereinafter designated as Parcel 1.
There is another small parcel of land extending along across the lands of Harry and Argyle Staples who have an easement for access to the public road. It is unnecessary to make further mention of the easement on the Staples’ land.
The other parcel is a long strip of land contiguous to and to the south of Parcel 1, extending from the eastern boundary line of the Dunn land, across the Staples land, across another lot belonging to R. H. Dunn, and will be hereinafter referred to as Parcel 2. Parcel 2, if and when acquired by the State Road Commission, will interfere with access to Parcel 1.
The State Road Commission instituted a proceeding in eminent domain to acquire Parcel 2, in which proceeding it developed that the Commission had not acquired title to Parcel 1, by deed or otherwise, notwithstanding that such land is now admittedly occupied by Route Number 60. Upon such fact being pleaded in an answer filed by the land owner, the Circuit Court of Kanawha County required that the petition in eminent domain be amended so as to include Parcel 1. The action of the trial court in requiring that amendment is prohibited by this court in the instant proceeding.
I think there are three valid reasons for refusing a writ of prohibition in this proceeding: (1) A writ of prohibi*580tion should not be granted to perform the function of a writ of error, (2) It was not error for the trial court to consider the acquisition of Parcel 1 in the eminent domain proceeding, (3) To hinder or prevent the land owner from receiving just compensation for his property is contrary to a right given him by the constitution. Discussing these questions in the order above stated:
Otriginally this court held that prohibition would not lie where another adequate remedy existed. McConiha v. Guthrie, 21 W. Va. 134; Ensign Co. v. Carroll, 30 W. Va. 532, 545, 4 S. E. 782. The modern holdings by this court are to the effect that regardless of the existence of other and adequate remedies, a writ of- prohibition will lie. Morris v. Calhoun, 119 W. Va. 603, 608, 195 S. E. 341. Prohibition may be invoked also, although a writ of error is available, where it is shown that a trial court is about to commit palpable error. See, Wolfe v. Shaw, Judge, 113 W. Va. 735, 169 S. E. 325; Lake O’Woods v. Wilhelm, 126 W. Va. 447, 457, 28 S. E. 2d 915; White Sulphur Springs v. Ripley, 124 W. Va. 486, 20 S. E. 2d 794. But this extraordinary remedy retains, as a general proposition, its basic characteristic that it only issues in instances of usurpation and abuse of power when the trial court has no jurisdiction of the subject matter or parties, or having such jurisdiction, it exceeds its legitimate power.
In the instant proceeding, there is no doubt that the trial court has general jurisdiction of the subject matter and of the parties. McConiha v. Guthrie, supra. The question then arises, did the trial court exceed its legitimate power in requiring the petition to be amended so as to include Parcel 1. “If a court, in passing upon its own jurisdiction, decides only a question of law, the decision in its favor may be at its peril. But, if the question depends upon facts to be ascertained and determined, a wrong decision is mere error.” State v. Bland, Judge, 89 W. Va. 600, 607, 109 S. E. 716. “Prohibition lies only in case of the inferior court’s lack of jurisdiction in some form. Its lack of jurisdiction, if any, confers jurisdiction by prohibition upon this court. When it has jurisdiction, we *581do not. Our decisions uniformly hold that prohibition cannot be awarded upon any ground save lack of jurisdiction in the inferior court.” State v. Bland, Judge, supra, Vanbuskirk v. Conley, 111 W. Va. 293, 161 S. E. 574. See Steamship Co. v. Hudson, 93 W. Va. 209, 116 S. E. 511; Gatrell v. Morris, Circuit Judge, et al., 98 W. Va. 34, 126 S. E. 343.
It is to be remembered that the only action of the trial court upon which the award of a writ of prohibition rests in this case is the action of the court in requiring a pleading to be amended so as to permit the taking of Parcel 1. Undoubtedly, the trial court had the authority and jurisdiction to formulate the pleading in the action of eminent domain, so as to permit inquiry into the peculiar and unusual circumstances relating to Parcel 1, as will be hereinafter shown. The principle that a petition in eminent domain may be amended is generally accepted. City of Richmond v. Thompson’s Heirs, (Va.) 81 S. E. 105, 2 Lewis Eminent Domain, Third Edition, Section 561, where the following is stated: “The practice of allowing amendments is one which should find favor with the courts, since it saves time and expense, both to the public and to the parties interested.”
Applying the rule relating to amendments, I think it is clear that a condemnor may amend his petition. That being true, there is no reason to prohibit a trial court, having general jurisdiction of a proceeding in eminent domain, from requiring an amendment of a petition, and in so doing, the court does not exceed its legitimate power. The rule as to amendments should be applied so that the trial court may have before it all judicial questions concerning the taking of land in question. It is clear to me that if Parcel 2 is taken, as it will be, Parcel Number 1 will be left in an unusual situation, being a Tong strip of land in which the land owner still has some rights, but of such dimensions and location, that it will be useless to him.
The right of a land owner to file an answer to a petition in eminent domain is clearly established in this jurisdic*582tion. Electric Co. v. Beall, 96 W. Va. 637, 123 S. E. 587, Huntington v. Holding Co., 85 W. Va. 241, 101 S. E. 461. Of course, the answer should be confined to factual allegations relating to judicial questions presented in a proceeding in eminent domain.
Occupancy by the public road of Parcel 1 is a taking. Lovett v. Gas Company, 65 W. Va. 739, 65 S. E. 196. “In the exercise of eminent domain there are no exceptions to the literal enforcement of the provision, based upon the general understanding of the public when the constitutions were adopted. On the contrary, the provision is given a broad construction, and is called into play when a case comes within its spirit, even if the letter of the law is not disturbed. It is well settled that a taking of property within the meaning of the constitution may be accomplished without formally divesting the owner of his title to the property or of any interest therein. Any limitation on the free use and enjoyment of property constitutes a taking of property within the meaning of the constitutional provision.” 2 Nichols on Eminent Domain, Third Edition, Section 6.1 [1]. See 6.21, Id. 18 Am. Jur., Eminent Domain, Section 133.
The only position that would justify disturbing the action of the Circuit Court of Kanawha County, is that the court only committed error. But, in my view, the action of the trial court does not constitute error.
In the courts opinion, the case of McConiha v. Guthrie, supra, is cited for the proposition that the statute authorizing proceeding in eminent domain should be strictly construed. A cursory reading of that opinion readily discloses that the rule of strict construction of statutes relative to eminent domain, was applied and invoked in that case to prevent the respondent judge from taking or invading two dwelling houses, and the land on which they were situate, contrary to the provisions of the statute.
In the instant proceeding, the same rule is applied against the land owner and not to protect the rights to private property. Bridge Co. v. Comstock, 36 W. Va. 263, *583275, 15 S. E. 69, Adams v. Clarksburg, 23 W. Va. 203. See B. & O. R. R. Co. v. P. W. & Ky. R. R. Co., 17 W. Va. 812.
In the case of Adams v. Clarksburg, supra, the court, in the body of its opinion, made the following statement': “All the authorities concur in holding, that as private property can be taken for public uses, against the consent of the owner, only in such cases, and by such proceedings as may be specially prescribed by law, and as these proceedings are contrary to the course of the common law, and are in derogation of common right, they are to be strictly construed, and that the party who would avail himself of this extraordinary power, must fully comply with all the provisions of the law entitling him to exercise it.”
The proposition stated in the courts opinion that it is discretionary with a condemnor to determine the quantity of land necessary for public use is ostensibly supported by the cases of State v. Horner, 121 W. Va. 75, 1 S. E. 2d 486; Shelton v. Commission, 113 W. Va. 191, 167 S. E. 444; Huntington v. Holding Co., supra.
In the Shelton and Horner cases, the land owners contended that the condemnor was taking too much land. In the proceeding here considered, the converse of that proposition is presented, in that the land owner is seeking to require the condemnor to acquire the title of the land which it has already taken and occupied. I do not think that the opinions of this court in the Shelton, Horner and Holding Co. cases are authority for the proposition that the State Road Commission may ignore its duty to condemn land already appropriated by it for the public use.
May a condemnor take land without acquiring title thereto; or paying a just compensation therefor, and then in a proceeding to condemn a contiguous parcel, resist an amendment to the petition filed by him, when it is clearly shown that to permit the taking of the second parcel, the owner of both will have no access to the first parcel and will receive no compensation therefor? The right of a land owner to just compensation for his property taken *584for public use is a constitutional right superior to any right granted by legislative enactment.
It may be that in other times and countries, the sovereign could seize the property of its subjects at will and without compensation. But not so in this country.
The action of this court in granting this writ virtually permits the State Road Commission to take Parcel 1, and thus deprive the land owner of the use of his land and may prevent or hinder him from receiving a just compensation for the same.
The award of a writ of prohibition places upon the land owner the burden of resorting to the remedy of presenting his claim to the legislature on the ground that the state owes him a moral obligation, or a proceeding in mandamus. As to the remedy by mandamus, see Childers v. Commissioner, 124 W. Va. 233, 19 S. E. 2d 611.
I am aware of the statutory provision reading in part: * * * “Any road shall be conclusively presumed to have been established when it has been used by the public for a period of ten years or more, and public moneys or labor have been expended thereon, whether there be any record of its conveyance, dedication or appropriation to public use or not. * * *” Code, 17-1-3. I have grave doubts as to the validity of the code provision just quoted. I do not think that the lapse of time, the occupancy of land and the expenditure of moneys or the bestowal of labor by the public thereon, should deprive a property owner of the right to just compensation for property taken or damaged for public use, contrary to the provision of our organic law which provides in part. “Private property shall not be taken or damaged for public use, without just compensation; * * Constitution of West Virginia, Article 3, Section 9. See 29 C. J. S., Eminent Domain, Section 97, Walton v. Green Bay W. & St. P. R. Co., (Wis.) 36 N. W. 10.
I would deny the writ of prohibition.