Norfolk & O v. Ry. Co

• Decision Date: 09 June 1910
• Citation: 111 Va. 131,68 S.E. 346
• Court: Virginia Supreme Court
• Parties: NORFOLK & O. v. RY. CO. v. CONSOLIDATED TURNPIKE CO. et al.

68 S.E. 346

111 Va. 131

NORFOLK & O.

v.RY. CO.

v.CONSOLIDATED TURNPIKE CO. et al.

Supreme Court of Appeals of Virginia.

June 9, 1910.)

1. Estoppel (§ 68^*)—Change of Position in Subsequent Judicial Proceedings.

A litigant cannot in a subsequent proceeding take a position in conflict with that taken by him in a former proceeding, which latter position is to the prejudice of the adverse party, where the parties are the same and the same questions are involved; and hence, where the purchaser at a receivers' sale of land subject to a trust deed, which lands the receivers had sought to condemn, claimed under the condemnation proceedings brought by the receivers, and enjoined the trustee and another from enforcing the trust deed until there was a decision in such proceedings, such purchaser could not subsequently, in the condemnation suit, deny that the receivers who brought such proceeding had authority to institute it, or that their petition therein was sufficient.

[Ed. Note.—For other cases, see Estoppel, Cent. Dig. §§ 165-169; Dec. Dig. § 68.*]

2. Appearance (§ 9*) — "General Appearance."

An appearance for any other purpose than questioning jurisdiction for want of process, defect of process, defective service thereof, or because the action was commenced in the wrong county, etc., is general, and not special, though accompanied by the claim that the appearance is special; and hence an appearance to move to vacate a cause, or to dismiss or discontinue it, because plaintiffs' pleading does not state a cause of action, which is equivalent or analogous to a demurrer, amounts to a general appearance.

[Ed. Note.—For other cases, see Appearance, Cent. Dig. §§ 42-52; Dec. Dig. § 9.*

For other definitions, see Words and Phrases, vol. 4, pp. 3051, 3052.]

3. Estoppel (§ 68*)—Change of Position in Subsequent Judicial Proceeding.

Where the purchaser at a receivers' sale of land subject to a trust deed, which land the receivers had sought to condemn, claimed under the condemnation proceedings brought by the receivers, and by alleging the pendency thereof long after the expiration of three months from the date of filing of the commissioners' report obtained an injunction restraining the trustee and another from subjecting the property sought to be condemned to the trust deed, such purchaser was estopped from subsequently contending that the condemnation suit should ipso facto be vacated and dismissed on the ground that the report of the condemnation commissioners had been filed more than three months without payment of the damages either to the owner or into court, as expressly required by Code 1904, § 1105f, subsec. 27.

[Ed. Note.—For other cases, see Estoppel, Cent. Dig. §§ 165-169; Dec. Dig. § 68.*]

4. Eminent Domain (§ 133*)—Condemnation — Compensation — Improvements by Condemning Party.

Where a corporation, with power of eminent domain, takes possession of land for its purposes under a warranty deed, and makes improvements, and afterwards institutes condemnation proceedings to extinguish a trust deed, the value of the improvements should not be considered in ascertaining compensation.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 861%; Dec. Dig. § 133.*]

5. Eminent Domain (§ 241*)—Condemnation Proceedings—Personal Judgment.

Under Code 1904, § 1105f, subsecs. 9-13, relating to the method of payment for land taken, if the condemning company is not in possession when the report of commissioners is confirmed, it can acquire title and right of possession only by paying such sum into court, or to the party entitled; and if such company is in possession at such time, as it may be where there has been a prior report not confirmed, and the confirmed report increases the compensation, the condemning company has no right to possession until full payment into court, or to the party entitled, and the statute confers no authority to enter a personal judgment. Held. that a personal judgment is improper and hence a judgment requiring the condemning company to pay the sum ascertained into some national bank in a specified city within three months was erroneous.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 621, 624; Dec. Dig. § 241.*]

6. Eminent Domain (§ 167*)—Condemnation Proceedings—Construction of Statute.

Though the words of a statute are broad enough in their literal extent to comprehend existing cases, they must be construed as applicable only to cases that may thereafter arise, unless a contrary intention is unequivocally expressed therein; and there being nothing in Code 1904, § 1105f, subsec. 27, as amended by Acts 1906, c. 257, providing that if, in a condemnation proceeding, the amount ascertained by the commissioners be not paid either to the party entitled or into court within three months from the filing of the report, the proceedings shall, on defendant's motion, be vacated as to him, and not otherwise, to show that it was intended to have a retroactive effect, it cannot be deemed to have such effect.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 451; Dec. Dig. § 167.*]

7. Eminent Domain (§ 255*)—Writ of Error—Necessity for Objections in Lower Court.

Where no objection was made in the lower court, in condemnation proceedings that the commissioners' report was not in accord with the order appointing them, the question cannot be raised on writ of error.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 666; Dec. Dig. § 255.*]

Error to Circuit Court, Norfolk County.

Condemnation proceedings by the Norfolk & Ocean View Railway Company against the Consolidated Turnpike Company and others. From an order allowing compensation for the land taken, including the value of improvements placed thereon, and directing plaintiff to deposit the same, plaintiff brings error. Reversed and rendered.

Groner & Taylor and Munford, Hunton, Williams & Anderson, for plaintiff in error.

N. T. Green and C. H. Burr, for defendants in error.

BUCHANAN, J. This is a condemnation proceeding instituted in the circuit court of Norfolk county by the receivers of the Circuit Court of the United States for the Eastern District of Virginia in the cause of Fink v. Bay Shore Terminal Company and Others. Before a consummation of the proceedingsfor condemnation, the property sought to be condemned, together with other property, was sold under a decree in the cause in which the receivers were appointed, the sale confirmed, and the purchaser, the Norfolk & Ocean View Railway Company, the plaintiff in error, received a conveyance of the property purchased, "with the benefit of and subject to all suits or proceedings which have been or may be instituted by the said receivers."

At the time of the institution of the proceedings to condemn, the predecessor in title of the plaintiff in error was in possession of the property sought to be condemned, under a conveyance from the Consolidated Turnpike Company which purported to convey, with covenants of general warranty, the land sought to be condemned, but which at that time was subject to a lien created by a deed of trust properly recorded.

When the report of the commissioners appointed in this proceeding to ascertain the compensation and damages for the property to be condemned was filed, it was excepted to by appellee Arthur W. Depue, one of the holders of the bonds secured by the said deed of trust. Before any action by the court upon the said report and the exceptions thereto, the grantor company in the deed of trust having defaulted in the payment of interest on the bonds secured by it, a judgment was rendered against that company, and a bill filed to subject the trust property to the payment of the debts secured upon it. Thereupon the appellant filed a pleading in the Circuit Court of the United States in the cause in which the property had been sold, for the purpose, among others, of enjoining and prohibiting Walter H. Taylor, the trustee in the said deed of trust, and Depue, one of the beneficiaries therein, from enforcing the same against the property sought to be condemned until there had been a decision of the state court in this condemnation proceeding. That court granted the relief, and the Circuit Court of Appeals of the United States, upon appeal, affirmed the lower court.

After Taylor, trustee, and Depue, appellees, had been enjoined from enforcing the lien of the said deed of trust until there had been a decision of the state court in the condemnation proceeding, Depue abandoned certain of his exceptions to the report of the commissioners of condemnation, in which abandonment Taylor, trustee, united, and they moved the court to confirm said report in so far as it ascertained compensation, etc., for the land taken, including the improvements placed thereon by the appellant or its predecessor in title. At the same time the appellant, which had never been made a party to the condemnation proceeding, appeared specially, as it claimed, and moved the court to dismiss and vacate the proceedings had in the cause, and to discontinue it. The court overruled the appellant's motion, held that its appearance was general, entered an order sustaining the motion of the appellees allowing compensa tion for the land taken, including the value of the improvements placed thereon by the appellant or its predecessor in title, directed that the appellant within three months deposit that sum, with interest, in some national bank of the city of Norfolk, to the credit of the court, and subject to its further order. To that order this writ of error was awarded.

The first error assigned is to the action of the trial court in appointing commissioners in the cause, based upon the following grounds:

(1) The petition was filed and the motion made by receivers of the Circuit Court of the United States, who had no authority under the statute law of Virginia to institute such proceedings.

(2) The property sought to be acquired by condemnation was the property of a public service...