
    (No. 4
    LOUISA SCAVERIELLO, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed February 27, 1942
    
    
      John D. Downes, Esq., for the claimant;
    
      Eston B. Stephenson, Esq., special assistant to the Attorney General, for the state.
   CHARLES J. SCHUCK, Judge.

The claimant, Louisa Scaveriello, has heretofore filed her petition in this court, asking for an award of $6500.00 for damages caused to certain lots and buildings located on what is known as Deckers Creek road, Sabraton, Monongalia county, West Virginia. Claimant maintains that the damages were caused by reason of the state road commission taking certain parts of claimant’s property in carrying out state project No. 3274, and entailing further, the removal of certain buildings located on said lots or property. The record further shows that this project was carried out, and the damages, if any, to the property in question, caused prior to May 16, 1933, the time at which the state, through its state road commission took over the control, maintenance, and upkeep of highways in the state of West Virginia. The state has filed a special plea to the jurisdiction of this court, setting forth that no cause of action lies against the state road commission, but that the remedy, if any, is exclusively against the county court of said Monongalia county, in which the real property in question is located. No replication has been filed or answer of any kind been made to this plea, notwithstanding notice of its filing having heretofore been given in ample time to the claimant through her attorney of record.

Assuming that all matters set forth in the plea are true, we must, under the law, sustain the plea and dismiss the claim from further consideration.

Previous to May 16, 1933, the right of action under our law for damáges to land, growing out of the construction or repair of a state road, was exclusively against the county court of the county in which the land lay. See Trump v. State Road Commission, 116 W. Va. 625, which was decided November 26,1935.

The claimant had the right, and was vested with the power at the time that the damages were caused to her property, to take action in the circuit court of Monongalia county against the county court of the said county, and having failed to do so, is now, in our opinion, barred from having the matter of her claim considered by this court.

The act creating this court, section 14, relating to the jurisdiction of the court, specifically excludes from its jurisdiction any claim which may be maintained by or on behalf of the claimant in the courts of the state. We are of the opinion that the claim under consideration falls within the class excluded by said section 14 of the act, and are, therefore, constrained from further consideration.  