dissenting:
I respectfully dissent from the Courts’ conclusions in this proceeding.
I think that the relators are entitled to a writ of mandamus as hereinafter stated. The question presented in this proceeding is cognate to the question which was before this Court in the case of State v. Bouchelle, 137 W. Va. 572, 73 S. E. 2d 432.
In the Bouchelle case, the Circuit Court of Kanawha County was prohibited from requiring the state to amend its petition in a proceeding in eminent domain. The facts presented in the case of State v. Bouchelle, supra, disclose that there were three parcels of land adjacent to Federal Route 60, in the town of South Charleston and one of those tracts adjoined the boundary line of the road. A *910proceeding in eminent domain was instituted by the state to condemn one parcel of land belonging to the relator lying to the south of the parcel involved in this proceeding. Another parcel of land concerned an easement owned by Harry and Argyle Staples.
The parcel of land which is the subject of this proceeding was designated as parcel number 1 in the dissenting opinion by the writer in State v. Bouchelle, supra, and will be so designated in this dissent. Parcel number 1 is an elongated tract of land about 6 feet wide and approximately 1000 feet long.
The Circuit Court of Kanawha County attempted to require the state to amend its petition in eminent domain to include parcel number 1. The petition in eminent 'domain formerly considered by this Court related to a tract of land lying immediately south of parcel number 1. As stated above, this Court prohibited the action of the Circuit Court of Kanawha County in requiring such amendment.
It is disclosed by the record in this case and in the proceeding in prohibition in the case of State v. Bouchelle, supra, that the State Road Commission in the year, 1941, improved Federal Route 60, then abutting on relators’ land and encroached on their land to an approximate width of 6 feet, for a considerable distance. In the year, 1941, when the pavement was being widened and the encroachment took place, the relators were informed by some person who was apparently the engineer in charge of the work of improvement, that the state was not going to take any of their land. They relied upon that statement. No survey or other investigation was made until the State Road Commission sought to acquire additional land south of the 6 foot strip sometime in the year, 1951 or 1952, for the purpose of widening the highway at that point. The encroachment was then discovered. Whereupon, the relators sought to compel an amendment to the petition in eminent domain as above stated, with the result the Circuit Court of Kanawha County was *911prohibited by this Court from requiring such amendment to be made.
As stated in the Courts’ opinion, in the instant proceeding there is practically no dispute as to facts in this record. It is to be assumed, as a fact, that prior to the year, 1941, the relators owned the 6 foot strip of land, and that the State Road Commission, without paying compensation therefor, encroached upon the lands of the relators and have, since 1941, occupied the land for a public highway.
The writ in this proceeding is denied on the grounds that the state, through the Road Commission, has acquired the 6 foot strip of land by occupancy for a period of ten years or longer, and that under provisions of Code, 17-1-3, the right to an easement cannot now be questioned.
Though the title of the State Road Commission is really founded on a trespass, unknown to the relators, under Code, 17-1-3, the title to an easement for road purposes has been transferred to the Commission by virtue of the statute. But neither such transfer nor Code, 17-1-3 bars the right of relators to just compensation for their land so taken.
The Court denies the writ, based in part on Code, 55-2-12, as it existed prior to the amendment of 1949, holding that the right of relators to compensation has been barred by lapse of five years. This presents a difficult question. It is true that no demand was made for compensation for the 6 foot strip of land until approximately ten years after it had been occupied for road purposes. Ordinarily, a right to such compensation would be barred. See Code, 55-2-6.
A new phase of an incongruous situation is presented by this proceeding, which has existed in this jurisdiction for a number of years. This Court held in the case of Mahone v. Road Commission, 99 W. Va. 397, 129 S. E. 320, that the road commission is a governmental agency of the state, and as such, is not subject to an action for tort. *912See Davis v. Commission, 113 W. Va. 110, 166 S. E. 819. Such holding posed a conflict in two constitutional provisions, which read in part as follows: “The State of West Virginia shall never be made defendant in any court of law or equity, * * Section 35, Article VI, Constitution of West Virginia. “Private property shall not be taken or damaged for public use, without just compensation; * * Section 9, Article III, Constitution of West Virginia.
The apparent conflict raised by the decision of this Court in the case of Mahone v. Road Commission, supra, and kindred cases, was resolved by authorizing a cir-cuituous method for reaching an appropriate result by a proceeding in mandamus; for the purpose of requiring the State Road Commissioner to institute a proceeding in eminent domain. “Section 9, Article 3 of the Constitution which provides that ‘Private property shall not be taken or damaged for public use, without just compensation’, requires action on the part of the state, its sub-divisions or instrumentalities, to ascertain damages and compensate owners of property for the taking thereof or damage thereto, incident to any public improvement for which such property may be appropriated.” Hardy v. Simpson, 118 W. Va. 440, 190 S. E. 680. See Stewart v. Commission, 117 W. Va. 352, 185 S. E. 567; Riggs v. Commissioner, 120 W. Va. 298, 197 S. E. 813.
This proceeding presents a conflict between Section 9, Article III, and the statutes of limitation. I think that Code, 17-1-3, is a statute of limitation or repose, but it does not in anywise bar the constitutional right of just compensation when private property is taken for public use. As stated above, the general statutes of limitation would probably be applicable and bar any right of the relators to recover compensation for their land taken, were it not for the provision of Code, 55-2-17, providing in part as follows: “Where any such right as is mentioned in this article shall accrue against a person * * * if such person shall * * * by any other indirect ways or means, *913obstruct the prosecution of such right * * * the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted.”
In my view, the assurance given in the year, 1941, by an engineer apparently in charge of the work to one of the relators that they did not expect to take any of relators’ land, was such conduct as to prevent relators from making an investigation as to the true location of the boundary line between their land and the road right-of-way, and then asserting their rights, at, or shortly after, the time the encroachment took place. The statement of the engineer tolled the statute of limitation until the year, 1951-1952. Hence, the rights of the relators to compensation were not barred until the encroachment on their land was discovered.
Here, there was affirmative action or representation which conceals the existence of liability of the state to the relators, and so as to prevent or delay an action or proceeding to enforce their rights. The relators were prevented from making an investigation as to whether the State Road Commission encroached on their land in the year, 1941, by the active representation of the engineer apparently in charge of the work at that point. Boyd v. Beebe, 64 W. Va. 216, 61 S. E. 304.
This Court, in the case of Baker v. Hendrix, 126 W. Va. 37, 27 S. E. 2d 275, applied the provisions of Code, 55-2-17, to toll the statute, in an action against a defendant, who was a physician and had operated on the plaintiff, leaving a sponge or gauze in her body, and upon being questioned, actively concealed from the plaintiff the presence of the sponge in her body. The conduct of the defendant in that case was held to be such as to prevent the running of the statute of limitation. The phrase quoted in Code, 55-2-17: “* *•* by any other indirect ways or means, obstruct the prosecution of such right * * is emphasized in the opinion of this Court in Baker v. Hendrix, supra. In Teter v. Moore, 80 W. Va. 443, 93 S. E. 342, it was held *914that the statute was tolled so as to allow the surcharging and falsifying of an accounting between partners, though the office of the complaining partner was in one of the rooms occupied by the partnership as an office where the accounts were made up and kept. Cameron v. Cameron, 111 W. Va. 375, 162 S. E. 173; Abell v. Penn Mutual Life Ins. Co., 18 W. Va. 400.
A person’s ignorance of his rights, without some affirmative action on the part of the person obstructing the enforcement thereof, is not sufficient to toll the statute. Scott v. Rinehart & Dennis Co., 116 W. Va. 319, 180 S. E. 276. But in this proceeding, there was affirmative action on the part of the person ostensibly in charge of the work of widening the pavement. It is not necessary that rela-tors stand guard over their property against an encroachment by a person supposedly honest. They had a right to rely on that representation, and did so rely. If an investigation is prevented by affirmative action on the part of the wrongdoer, the effect of the statute of limitation is suspended. Smith v. Blachley (Pa.) 47 A. 985.
For the time being, it may be conceded that there was no fraud, actual or constructive, practiced against the relators and growing out of the statement made by the supposed engineer, but it certainly can be said that the engineer, as well as the relators, made a mutual mistake as to the location of the property line between the road easement held by the State of West Virginia in the year, 1941, and the northern boundary line of relators’ land. Such mistake certainly caused a delay in the enforcement of relators’ rights which should not defeat the remedy sought in this case, the relator being ignorant of such mistake and without fault. Craig v. Coal Land Co., 73 W. Va. 624, 80 S. E. 945. See Coal Company v. Overholt, 81 W. Va. 427, 94 S. E. 735; Craufurd v. Smith (Va.) 23 S. E. 235; Grove v. Lemley (Va.) 76 S. E. 305; Senseny v. Boyd (Va.) 76 S. E. 280; Hall v. Graham (Va.) 72 S. E. 105.
In the case of Craufurd v. Smith, supra, the Court uses the following language: “No lapse of time, no delay in bringing the suit, however long, will defeat the remedy in *915cases of fraud or mutual mistake, provided the injured party during all this interval was ignorant of the fraud or mistake without fault on his part.” The rule so announced in Craufurd v. Smith, supra, is adverted to in the body of the opinion in the case of Craig v. Coal Land Co., supra, where the following language is used: “The broad proposition asserted in Craufurd v. Smith, 93 Va. 623, 631, that no lapse of time or delay in bringing the suit, however long, will defeat the remedy in cases of fraud or mutual mistake, is not to be taken without its qualification, that the party must be without fault, negligence or lack of diligence.”
The rule laid down in Craufurd v. Smith, supra, is implicitly approved, as modified, by the language quoted in Craig v. Coal Land Co., supra. In the instant case, the relators were lulled into the feeling of security without fault or negligence on their part. Their failure to investigate further shows no lack of diligence when the assurance given in 1941 by the engineer apparently in charge of the work is given consideration and weight.
The Court relies on the opinion of this Court in Childers v. Road Commission, 124 W. Va. 233, 19 S. E. 2d 611. The instant proceeding is to be distinguished from the Childers case. In the Childers case, the title to the land in question was in dispute. Here the state admits that the relators formerly owned the land, and fixes a definite event when the title was taken away from the relator by a lapse of time and the force of Code, 17-1-3. The Childers case lacked in certainty as to whether the relators in that case had any title to the land claimed by them. The opinion of this Court holds that title to the land claimed by relators had passed to the state by long occupancy and lapse of time. Here the state says to the relators: We started to occupy the land in 1941; you have permitted us to occupy it for more than ten years without attempting to enforce your right to just compensation. You are barred of any right to compensation, though an engineer then apparently in charge of the work represented to you that the state did not intend to take any of your land. It will not do *916to say that the relators should have investigated. Why should they have gone to the expense of a survey and an investigation of their title when they had been informed by a person who should have known that there was no encroachment upon their land. No such representation had been made in the Childers case. I, therefore, do not think the Childers case is applicable to the instant proceeding.
The effect of the Courts’ decision here is to deny a vital and most important right to the relators, guaranteed them by the constitution of this state. Such right is denied on the ground that it is barred by statutes of limitation.
I think that the right is so vital, so important, and so necessary in a well organized society that the constitutional provisions being paramount should prevail in the situation disclosed by this record. Therefore, I would grant a writ of mandamus as follows: Requiring the State Road Commission to institute a proceeding in eminent domain to ascertain the amount of just compensation due relators for the land the state took in 1941, as well as damages to the residue, if any.
A summation of the reasons for this dissent is as follows: (1) Code, 17-1-3, though operative and sufficient to transfer the title to an easement for a public highway, after a lapse of ten years, does not, either in letter or spirit, bar the recovery of just compensation for land taken or damaged, (2) the right to compensation is not barred by the general statute of limitation, for the reason that the statute of limitation is tolled by the act of the supposed engineer amounting to fraud, mutual mistake, or both, (3) the command of the constitutional provision, Section 9, Article III, is plain, paramount and imperative.
I would not require the State Road Commission to take the land itself, since it is now a public road. Though the land was formerly private property and has now been taken for public use, no compensation has been paid for it. The land is now owned, used and enjoyed by the *917public generally, at the expense of the relators who have been deprived of their property.
The relators are told, in effect, that you have a right guaranteed by the Constitution and which has been taken away from you, but the Courts are closed to you by the statutes of limitation.
In other times and in other countries, it may have been that the sovereign could take the property of its citizens or subjects without compensation, but in this country, citizens are protected from such action, though performed by the sovereign. Therefore, I would grant the writ of mandamus as hereinabove indicated.