State ex rel. French v. State Road Commission, 147 W. Va. 619, 621, 129 S.E.2d 832-33 (1963). Facts similar to those in the instant case occurred in State ex rel. Smeltzer v. Sawyers, 149 W. Va. 641, 142 S.E.2d 886 (1965). In Smeltzer, the petitioner sought a writ of mandamus to compel the state road commissioner to institute eminent domain proceedings against the petitioner so as to ascertain compensation for some damage caused to petitioner's house.
(Citation omitted). See also State ex rel. Smeltzer v. Sawyers, 149 W. Va. 641, 643, 142 S.E.2d 886, 888 (1965) (same). With regard to a property owners right to recover for damages caused to private property by the DOH, we have held:
These constitutional provisions appear to be irreconcilable, but this Court has held that if the State Road Commissioner abuses his discretion in failing to institute an action of eminent domain against a property owner who alleges that his property has been taken or damaged as a result of the construction of a public highway, such commissioner will by this Court be directed in a mandamus proceeding to institute such action to determine whether property has been taken or damaged and, if so, the amount of damage the property owner has suffered. State ex rel. Smeltzer v. State Road Commissioner, 149 W. Va. 641, 142 S.E.2d 886, and cases cited therein. It is true that the property damaged was not a part of the residue of the Jacobs' property over which the respondent has secured a right-of-way, and it is also true that the property damaged was not adjacent thereto.
In earlier cases when we were faced with the apparent irreconcilability of these constitutional provisions, however, we found ways to insure that those wronged by the state government had a remedy. Phoenix Insurance Co., 154 W. Va. 306, 175 S.E.2d 428 (1970); State ex rel. Smeltzer v. Sawyers, 149 W. Va. 641, 142 S.E.2d 886 (1965); see cases referred to in note 4, infra. We have tempered the harshness of the general doctrine by noting a number of situations which fall outside the bounds of the constitutional provision.
It has long been established, therefore, that a clear legal right has been shown in a case of this nature when it appears that the petitioner has made a good faith showing of probable damage to his property. State ex rel. Smeltzer, v. Sawyers, 149 W. Va. 641, 142 S.E.2d 886; State ex rel. Queen v. Sawyers, 148 W. Va. 130, 133 S.E.2d 257; State ex rel. Cutlip v. Sawyers, 147 W. Va. 687, 130 S.E.2d 345; State ex rel. French v. State Road Commission, 147 W. Va. 619, 129 S.E.2d 831; State ex rel. Dunn v. Griffith, 139 W. Va. 894, 82 S.E.2d 300; Riggs v. State Road Commissioner, 120 W. Va. 298, 197 S.E. 813. Even though no property has been taken by the state in the construction of a public road, and none was taken in this instance, a landowner is nonetheless entitled to compensation for any damage to his property which results from such construction.