57 S.E.2d 120 (Va. 1950), 3545, City of Richmond v. Dervishian

Docket Nº3545.
Citation57 S.E.2d 120, 190 Va. 398
Opinion Judge[10] Eggleston
Party NameCITY OF RICHMOND, ET ALS. v. MARY J. DERVISHIAN, ET ALS.
Attorney[7] J. Elliott Drinard and W. S. Cudlipp, Jr., for the appellants.
Case DateJanuary 16, 1950
CourtSupreme Court of Virginia

Page 120

57 S.E.2d 120 (Va. 1950)

190 Va. 398

CITY OF RICHMOND, ET ALS.

v.

MARY J. DERVISHIAN, ET ALS.

No. 3545.

Supreme Court of Virginia

January 16, 1950.

Page 121

[Copyrighted Material Omitted]

Page 122

[190 Va. 403] J. Elliott Drinard and W. S. Cudlipp, Jr., for the appellants.

Wilmer L. O'Flaherty and Harold H. Dervishian, for the appellees.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the court.

On August 10, 1948, the council of the city of Richmond adopted a joint resolution authorizing and directing the city attorney to institute condemnation proceedings, under section 22(b) 1 of the charter of the city, to acquire the property in the block bounded by Marshall, Clay, Seventh and Eighth streets, for the parking or storage thereon of vehicles by the public. The resolution recited that the city had been authorized by an act of the General Assembly, approved January 31, 1947 (Acts 1947, Ex. Sess., ch. 80, p. 145), to acquire property for that purpose when the city council deemed it necessary to do so in order 'to relieve congestion in the use of streets and to reduce hazards incident to such use;' and that in the opinion of the council there was a public necessity that this property be acquired for that purpose. By the further terms of the resolution the sum of $275,000 was stated to be the estimated amount necessary to compensate the owners and was thereby appropriated for the purpose.

Two days later the complainant below, Mrs. Mary J. Dervishian, who owns a two-story brick building on a lot [190 Va. 404] within the block sought to be condemned, filed a bill in equity in the lower court seeking an injunction against the city of Richmond and certain of its officials to restrain them from instituting any action or proceeding under

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the resolution of the city council, or under section 22(b) of the city charter, for the condemnation of her property. She alleged among other things, (1) that section 22(b) was unconstitutional and void in that it permitted the taking of her property without due process of law, in violation of section 11 of the Constitution of Virginia, and (2) that the purported taking was not for a public use.

The complainant was awarded an ex parte temporary injunction enjoining the city and its agents from proceeding with the condemnation of her property.

Subsequently certain other persons who owned property in the block sought to be condemned were allowed to intervene as parties complainant and a similar temporary injunction was issued restraining the city and its agents from instituting condemnation proceedings with respect to their properties.

The city and its agents filed demurrers to the bill and intervening petitions testing their legal sufficiency.

In a written opinion the lower court held that the taking of private property by the city for the purpose of parking vehicles of the public thereon was a public use, but that section 22(b) of the city charter, under which the city proposed to condemn the property, was unconstitutional and void for the reasons asserted by the complainant landowners. Accordingly, a decree was entered overruling the demurrers and perpetually enjoining and restraining the city and its agents from instituting any action or proceeding pursuant to the provisions or direction of the resolution of the city council.

From this decree the city of Richmond and its officials have appealed, asserting that the lower court erred in holding section 22(b) of the city charter to be unconstitutional, and in enjoining and restraining the institution of proceedings [190 Va. 405] for the purpose of acquiring the property, as directed by the resolution.

Mrs. Dervishian and the other intervening property owners assign cross-error to the action of the lower court in holding that the proposed acquisition of the property by the city for parking purposes is a public use. We shall dispose of the latter issue first.

By Acts of 1947, Ex. Sess., ch. 80, pp. 145, 146, section 19-c of the charter of the city of Richmond was amended to authorize and permit the city to acquire and maintain property for public uses. Included in such delegation of authority is the power 'To acquire places for the parking or storage of vehicles by the public, which shall include but shall not be limited to parking lots, garages, buildings and other land, structures, equipment and facilities, when in the opinion of the council they are necessary to relieve congestion in the use of streets and to reduce hazards incident to such use; to operate and maintain such places; to authorize or permit others to use, operate or maintain such places upon such terms and conditions as the council may prescribe; to charge or authorize the charging of compensation for the parking or storage of vehicles at or in such places; and to accept donations of money or other property or the right to use such property from others to aid in whole or in part in the acquisition, maintenance and operation of such places.'

This is an express declaration by the General Assembly that the contemplated use is a public one. While such declaration is not conclusive and is subject to judicial review (Light v. Danville, 168 Va. 181, 208, 190 S.E. 276, 287; Mumpower v. Housing Authority, 176 Va. 426, 448, 11 S.E.2d 732, 740), it is presumed to be right. 18 Am. Jur., Eminent Domain, sec. 46, p. 675; 29 C.J.S., Eminent Domain, sec. 30, p. 822.

The stopping or parking of vehicles along the street is, of course, a legitimate use thereof. No one questions the authority of a city to condemn property adjacent to an existing [190 Va. 406] street for the purpose of widening it so as to accommodate the parking of vehicles as well as to facilitate the flow of traffic thereon. If a municipality may, for the purpose of providing parking space for vehicles, take land adjacent to an existing street, we know of no reason why it should not provide such parking space

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away from the street. The purpose is the same and is a public one in either instance.

Moreover, in congested areas of a city the proper regulation of traffic in the interest and safety of the public may require that vehicles be parked in off-street locations set aside for the purpose rather than in the streets themselves. The acquisition by the city of the necessary property to provide such parking areas is a proper incident to its right and duty to regulate the use of its streets, and the use of the property for such purpose is a public one.

Our view of the matter is sustained by decisions in other jurisdictions. In Miller v. Georgetown, 301 Ky. 241, 191 S.W.2d 403, it was held that the taking of a tract of land abutting a street for parking lot facilities was a proper municipal purpose and incident to the municipality's right to regulate traffic.

In Whittier v. Dixon, 24 Cal. (2d) 664, 151 P.2d 5, 153 A.L.R. 956, it was held that the acquisition and operation of public parking places were for a public purpose and that property therefor could be acquired by condemnation and paid for by special assessment. The following quotation from that opinion is peculiarly applicable to the situation now before us; 'Respondent contends that public parking places are not public improvements. The Legislature, however, has expressly authorized the acquisition of parking places to serve the public, and the legislation is valid so long as it serves some public purpose. (Citing cases.) Just as public streets can be used for the parking of motor vehicles, property can be acquired for the same use. Moreover, public parking places relieve congestion and reduce traffic [190 Va. 407] hazards and therefore serve a public purpose.' (151 P.2d p. 7, 153 A.L.R. p. 960.)

See also, Ambassador Management Corp. v. Incorporated Village of Hempstead, 58 N.Y.S. (2d) 880, affirmed 62 N.Y.S. (2d) 165 (appeal dismissed, 296 N.Y. 666, 69 N.E.2d 819; cert. denied, 330 U.S. 835, 67 S.Ct. 971, 91 L.ed. 1282).

The appellees argue in their brief that the acquisition of the property here in question for a parking lot will primarily benefit two near-by department stores and will, therefore, not be for a public use. This contention is beside the point. The fact that property acquired to serve the public may also incidentally benefit some private individuals does not destroy the public character of the use. See Mumpower v. Housing Authority, supra (176 Va., p. 449, 11 S.E.2d p. 741), and cases there cited.

Nor are we concerned in the present proceeding with the allegation in the bill and the argument in the brief that the city 'is considering a proposal'...

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