dissenting:
I respectfully dissent as I believe the majority is in error when it concludes that W. Va. Code, 14-2-2(b), does not establish venue in the Circuit Court of Randolph County where the original mandamus actions were filed against the State Highways Commissioner and which the Commissioner seeks in this Court to block through the writ of prohibition.
In a nutshell, the controversy in this case involves several abutting landowners who claim in their mandamus actions filed in the Circuit Court of Randolph County that the State Highways Commissioner acted arbitrarily and capriciously when he sought to abandon what they claim is a public road.
The majority opinion appears to rest on the earlier case of Phares v. Ritchie, _ W. Va. _, 219 S.E.2d 698 (1976), involving some of the same parties and the same road. I believe the Court in Phares erroneously construed the nature of the underlying action there involved, as it limited W. Va. Code, 14-2-2(b), in the context of that case, to suits to require the Commissioner to institute condemnation proceedings.
Clearly, the 1974 amendment to W. Va. Code, 14-2-1, was not designed for this purpose alone. Prior to the 1974 amendment, W. Va. Code, 14-2-2, read as follows:
“The following proceedings shall be brought and prosecuted only in the circuit court of Kana-wha county:
“1. Any suit in which the governor, any other State officer, or a State agency is made a party defendant, except as garnishee or suggestee.
*608“2. Any suit attempting to enjoin or otherwise suspend or affect a judgment or decree on behalf of the State obtained in any circuit court.
“This section shall apply only to such proceedings as are not prohibited by the constitutional immunity of the State from suit under section 35, article VI of the Constitution of the State.”
The 1974 amendment added the following provision:1
“(b) Any proceeding for injunctive or mandamus relief involving the taking, damage or title to real property may be brought and presented in the circuit court of the county in which the real property affected is situate.”
Had the Legislature conceived that the 1974 amendment was to be limited solely to mandamus relief to compel the State Highways Commissioner to institute an eminent domain action, it would have used language precisely involving this purpose and no other, instead of the broader language encompassed in the amendment.
As this Court pointed out in State ex rel. County Court of Wood County v. State Road Commission, 147 W. Va. 623, 129 S.E.2d 726 (1963), mandamus will lie to force the State Highways Commissioner to assume control over roads and bridges which he has a statutory duty to maintain. The degree of maintenance is within his discretion and not subject to supervision by mandamus.
Here, respondents instituted their mandamus proceedings in the Circuit Court of Randolph County, alleging that the road is a public road because it had been maintained and used as such for a long period of time up until 1974. The pleadings were, if unrebutted, sufficient under W. Va. Code, 17-1-3, to give rise to a conclusive presumption that the road in question is a public road.
*609The respondents in the proceedings below claim that the Commissioner has arbitrarily and capriciously abandoned the road in violation of the provisions of Code 17-2A-8. This was sufficient from a pleading standpoint to state a cause of action for mandamus. State ex rel. County Court of Wood County v. State Road Commission, supra; Brady v. Smith, 139 W. Va. 259, 79 S.E.2d 851 (1954); Stephenson v. Cavendish, 134 W. Va. 361, 59 S.E.2d 459 (1950).
The State Highways Commissioner raised the factual defense that the road is not a public road. What is actually at issue in this case is a question of title; that is, whether the road is or is not a public road. This is the exact question to which the Legislature spoke when it passed the 1974 revision to W. Va. Code, 14-2-2(b).
There is nothing extraordinary in the Legislature creating a venue right for local citizens to bring actions against a State Highways Commissioner in their counties, where the matter involves the taking of real property or question as to its title. Indeed, under W. Va. Code, 17-4-53(a), it is expressly so sanctioned in cases involving access to State highways.2
It has long been recognized under our general venue statute that suits involving land should be brought in the county where the land is situate. W. Va. Code, 56-1-1(a) and (c).
Even though the general venue statute directs that suits on behalf of the State be filed in the respective county where the seat of government is located, W. Va. Code, 56-l-l(f), this Court has never construed this provi*610sion as absolute. It has long recognized that where the Legislature has made specific courts and counties the appropriate place to bring a suit, it must be brought there. Thus, in State ex rel. Chafin v. Hudson, 97 W. Va. 679, 125 S.E. 813 (1924), the State in seeking an injunction was required to bring the suit, under Code 53-5-3, in the county where the acts sought to be enjoined are located. Likewise, in State ex rel. Charlotton v. O’Brien, 135 W. Va. 263, 63 S.E.2d 512 (1951), this Court held that a suit for escheated property brought by the State under W. Va. Code, 34-2-1, must be filed in the county where the property is located or where the personal representative is appointed.
There are obvious practical reasons why litigation of this type should be conducted in the county where the real property exists. The question of title is essentially one that involves evidence that can best be obtained locally. By having the trial in the county where the land is situate, the court and jury can view the area. To require the parties to bring the witnesses and documents from the local county into the Circuit Court of Kanawha County is unwarranted and a result that the Legislature intended to avoid.
In 1976 this section was again amended by the Legislature adding the words “or collection for or prevention of damage” before the words “to real property.” One suspects this was an attempt by the Legislature to correct the error in the initial case of Phares v. Ritchie, _ W. Va. _, 219 S.E.2d 698 (1975).
“Any objection or preliminary determination issued by the state road commission under sections forty-seven [§ 17-4-47], forty-eight [§ 17-4-48], forty-nine [§ 17-4-49] or fifty [§ 17-4-50] of this article shall be subject to judicial review by the circuit court of the county in which the real property affected is located, or the circuit court of Kanawha county, upon the filing in such court or with the judge thereof in vacation, of a petition for appeal by the owner or owners aggrieved by such objection or preliminary determination, within thirty days from the date of the giving of notice of such objection or preliminary determination.”