Bailey v. Anderson

• Decision Date: 05 November 1945
• Docket Number: No. 49,49
• Parties: BAILEY v. ANDERSON, State Highway Commissioner of Virginia
• Court: U.S. Supreme Court

326 U.S. 203

66 S.Ct. 66

90 L.Ed. 3

BAILEY

v ANDERSON, State Highway Commissioner of Virginia.

No. 49.

Argued Oct. 15, 1945.

Decided Nov. 5, 1945.

As Amended on Denial of Rehearing Dec. 3, 1945.

See 66 S.Ct. 228.

Appeal from the Supreme Court of Appeals of the State of virginia.

Mr. Bernard B. Bailey, pro se.

Mr. Abram P. Staples, of Richmond, Va., for appellee.

Mr. Chief Justice STONE delivered the opinion of the Court.

Appellee, State Highway Commissioner of Virginia, brought this proceeding in conformity to §§ 1969j(1)—1969j(6) of the Virginia Code of 1942, to condemn appellant's land for use as a public highway. Acting under § 1969j(4), appellee entered on the land and constructed the highway in advance of its condemnation. In the condemnation proceeding, begun in the circuit court within sixty days after the completion of the highway, the Commissioners, appointed and acting pursuant to § 1969j(2), after viewing the land, and hearing evidence, made an award of $1,500 for the land occupied by the highway, and of $6,500 for damages 'resulting to the adjacent or other property of the owner.'

The Virginia Circuit Court confirmed the Commissioners' report, and by its decree directed that interest be paid on the amount of the award from the date of the decree. The Supreme Court of Appeals of Virginia, without opinion, denied appellant's petition for a writ of error. The case comes here on appeal, § 237(a) Judicial Code, 28 U.S.C. § 344(a), 28 U.S.C.A. § 344(a), appellant assigning as error that §§ 1969j(4) and 1969j(6), as applied to appellant, deny to him the due process guaranteed by the Fourteenth Amendment. On examination of appellant's jurisdictional statement we postponed the question of our jurisdiction to the argument on the merits.

Appellant contends here, as he did in the state courts, that § 1969j(4) infringes the asserted constitutional immunity by sanctioning appellee's entry upon the land and the alteration of its physical condition, in advance of the appointment of the Commissioners and before they could view the land for the purpose of fixing its fair value upon condemnation. But it has long been settled that due process does not require the condemnation of land to be in advance of its occupation by the condemning authority, provided only that the owner have opportunity, in the course of the condemnation proceedings, to be heard and to offer evidence as to the value of the land taken. Bragg v. Weaver, 251 U.S. 57, 62, 40 S.Ct. 62, 64, 64 L.Ed. 135, and cases cited; Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 677, 43 S.Ct. 684, 688, 67 L.Ed. 1167; State of Georgia v. City of Chattanooga, 264 U.S. 472, 483, 44 S.Ct. 369, 371, 68 L.Ed. 796. Its value may be fixed by viewers without a hearing, after entry upon the land, if their award is subject to a review in which a trial upon evidence may be had. Pearson v. Yewdall, 95 U.S. 294, 296, 24 L.Ed. 436; Backus v. Fort Street Union Depot Co., 169 U.S. 557, 569, 18 S.Ct. 445, 450, 42 L.Ed. 853; Bragg v. Weaver, supra, 251 U.S. 59, 40 S.Ct. 63, 64 L.Ed. 135, and cases cited; North Laramie Land Co. v. Hoffman, 268 U.S. 276, 284, 285, 45 S.Ct. 491, 495, 69 L.Ed. 953.

Here appellant was given full opportunity to be heard and to introduce evidence before the Commissioners. They could, upon the evidence submitted, take into account the alterations of the property after the taking and before the view; such was their duty under the statute. Their award is made subject to judicial review by § 1969j(2), and upon such review may be set aside if plainly wrong or without support in the evidence. Barnes v. Tidewater R. Co., 107 Va. 263, 266—268, 58 S.E. 594, 595, 596; Duncan v. State Highway Commission, 142 Va. 135, 146—148, 128 S.E. 546, 549, 550. In this we find no denial of due process, and appellant's contention presents no substantial constitutional question, as the authorities cited show.

Appellant also insists that the state court judgment failed to include in the award interest from the date of the occupation of his land by appellee; that the award thus denied to him just compensation for the land taken, in violation of the due process clause of the Fourteenth Amendment. See Delaware, L. & W.R.R. v. Town of Morris- town, 276 U.S. 182, 48 S.Ct. 276, 72 L.Ed. 523, 56 A.L.R. 756. Appellant's petition in the circuit court asked that the award include interest from the date of taking. The circuit court, without explanation, rejected his claim for interest. But throughout the proceedings in the circuit court appellant made no claim to interest on constitutional grounds, and made no attack on the constitutionality of the award or the court's decree because of the asserted denial of interest. Further, nothing appears in the record to indicate that the Commissioners' award of damages did not include the interest claimed. Appellee argues that the applicable statutes contemplate that the award shall include interest as compensation 'for the damage...