Board of Sup'rs of Culpeper County v. Gorrell

• Decision Date: 06 April 1871
• Citation: 61 Va. 484
• Court: Virginia Supreme Court
• Parties: THE BOARD OF SUPERVISORS OF CULPEPER v. GORRELL & als.

61 Va. 484

THE BOARD OF SUPERVISORS OF CULPEPER v. GORRELL & als.

Supreme Court of Appeals of Virginia.

April 6, 1871

1. The board of supervisors of a county have authority to provide land for building a courthouse, clerk's office and jail either by purchase or by proceeding to have it condemned in the mode prescribed in the statute. Code, ch. 56, s. 6-16, p 324-326.

2. The board of supervisors of a county have authority to sell the lands belonging to the county, on which the courthouse and other public buildings once stood.

3. It is for the board of supervisors to determine what land they will procure for the public buildings of their county; and whether their discretion is wisely or unwisely exercised in the selection, cannot be enquired into in the proceeding instituted to condemn the land.

4. In the act authorizing the condemnation of land for public purposes, Code, ch. 56, the tenant of the freehold referred to in s. 7, is the tenant in possession appearing as the visible owner.

5. The board of supervisors proceeding to have certain land condemned for the purpose of building thereon a courthouse clerk's office and jail, and the persons whose land is proposed to be condemned, not objecting to the report of the commissioners, other citizens of the county have no right to make themselves parties in the proceeding, and object to the confirmation of the report.

8. In such a case the Circuit court of the county has no jurisdiction, on the application of these citizens, to award a writ of error and supersedeas to the judgment of the County court refusing to admit such citizens as parties, and confirming the report of the commissioners.

9. To entitle any person to appeal from a judgment, he must be a party in the cause, and must be aggrieved by the judgment.

10. The Circuit court having no jurisdiction, on the application of persons not parties to the proceeding, to revise the judgment of the County court, the writ of prohibition is a proper proceeding to restrain him from proceeding in the case.

11. Though it is a general rule that a writ of prohibition will not be awarded without requiring the plaintiff (if the defendant insists upon it) to file a declaration; yet, when the application for the writ is to the Supreme Appellate court, it may be dispensed with, if the court is satisfied that the merits of the case is presented fully on the petition and answer.

The board of supervisors of the county of Culpeper having selected two acres of land in the town of Culpeper, belonging to Eliza T. C. Jameson and others, for the purpose of building thereon a courthouse, clerk's office and jail for the county, applied to the County court of that county for the appointment of commissioners to value the land. The commissioners were appointed, and they returned their report to the county court in December, 1870. At the January term of the court, upon the motion of the supervisors to confirm the report of the commissioners, Joseph B. Gorrell, and seven other persons, claiming to be citizens of the county, owners of real estate and tax-payers therein, but not claiming to have any interest in the land proposed to be condemned, moved the court to allow them to be made parties to the proceeding and to file exceptions to the report; which they exhibited. On this motion, the judge of the County court--J. W. Bell--delivered the following opinion:

The board of supervisors of Culpeper county having determined upon a site on which to locate the courthouse, clerk's office and jail, and desiring to condemn that site or parcel of land and purchase the same, applied to this court to appoint five disinterested freeholders of the county, for the purpose of ascertaining a just compensation for such land. Notice of such application was given, and service thereof acknowledged by the owners and occupants of the land; and upon its appearing that such notice had been given, and no one appearing to oppose it, the court appointed the commissioners suggested by the board, and, in the order of appointing them, designated the day for them to meet. It appears they took the oath prescribed by the statute in such cases provided, met upon the land on the day designated, viewed the same, and ascertained what would be a just compensation for it, and made their report accordingly. No person appeared on the ground to contest it.

At a subsequent term of the court, the report and the proceedings are presented to the court, and a confirmation of the same is asked for by the board. An attorney at the bar rises in his place, opposes the motion, and gives notice to the board of supervisors, through its chairman, that in the name of certain citizens, tax-payers and real estate owners of the county, and in their behalf, he will contest the confirmation of the report, and ask the court to allow them to file their exceptions, and show cause against it.

It was suggested by the court to the attorney for the tax-payers, that his exceptions should be reduced to writing, so that the objections to the whole proceedings on the part of the board of supervisors could be more readily seen and understood. They were reduced to writing, and on the next morning brought into court. In the meantime, however, by an understanding between the counsel for the board and counsel for the tax-payers, the exceptions themselves were not to be discussed by the bar, or considered by the court, until the single preliminary question should be disposed of, viz: " Have these persons, as tax-payers, citizens and real estate owners, and in that character alone, a right to be heard here, to show cause against the confirmation of the report of the said commissioners?" This is the single, isolated proposition for this court now to determine. It is one of unqualified novelty with us, growing out of the revolutionized constitution of government under which we now live, and which we are bound to observe and execute. It is res integra here.

Owing to the newness and difficulties of this question, I had hoped to receive the notes and authorities promised at the bar, but regret to say have not, to this moment, although solicited by me, gotten the first note or suggestion, or authority, from a single lawyer except Mr. Lewis, who furnished me with a short note and authority, to which I shall hereafter allude--Mr. Gibson referring me to the same. There is certainly a great dearth of authority upon this question, or any one similar to it, elementary or in the decision of the courts--at least after the most industrious researches in all the libraries at this place and in Warrenton (some of them quite large), I have not been able to discover a single case wherein this distinct question is raised, save one. In 16 Pickering's Report (Massachusetts), the point is raised at the bar, and disposed of by Judge Shaw in two words--" Sed quæ re. 'DD' It must, therefore, be determined, as best I may, upon reasoning and analogy.

It will be observed that these " citizens, tax-payers and real estate owners," do not come in by petition, setting forth and manifesting an individual interest which the court would be bound to take notice of, and defend and protect, and ask to be made parties on the record, as plaintiffs or defendants; but merely ask in the character of " citizens, tax-payers and real estate owners," to show cause against the confirmation of the report of the commissioners. They do not show or set forth any other interest than what the descriptive character they have assumed would indicate, viz: " citizens, tax-payers and real estate owners," an interest which it must be admitted, is of the most general, uncertain and indefinite kind. They do not even set forth that they, or any one of them, is a creditor of the land owners, or that they are lien holders, or have the remotest pecuniary interest in the land proposed to be condemned, even if that fact could avail them at all. They certainly do not pretend that they are tenants of the freehold, or owners or proprietors of the land, or that they are interested as residuary legatees and devisees under William Major's will. If it appeared that they or either of these exceptants was a " tenant of the freehold," or his " guardian or committee," and that legal notice has not been served on him, then the proceedings, to that extent, would be defective. The court would refuse to confirm the report, cause notice to be served on the proper party, and bring him properly before the court. He would then be a party in interest, and have a right to be heard and show cause against the report.

The 10th section of the law under which this proceeding is had, reads as follows: " The commissioners, after viewing the land and hearing such proper evidence as either party may offer, shall ascertain what will be a just compensation for said land," & c. To whom do these words " either party " refer?--to the people of the county in a body, individually and collectively?-- to any citizen, tax-payer and land owner of the county?--to any uninterested person? I cannot think so; but, manifestly, to a " party" having an interest as " " tenant of the freehold," his guardian or committee; or to " those entitled to the land," in the language of the statute itself, on the one part, and the company, or county, or town council, on the other part.

The 11th section reads as follows: " The said report and certificate of the Justice shall be forthwith returned to the court of the county or corporation, and unless good cause be shown against the report, the same shall be confirmed and recorded."

The 12th section reads as follows: " If, however, good cause be shown against the report, the court may, without further notice, as often as to it seems proper, appoint other commissioners, and the matter may be...