Bragg v. Weaver, No. 22

• Court: United States Supreme Court
• Writing for the Court: VAN DEVANTER
• Citation: 64 L.Ed. 135,251 U.S. 57,40 S.Ct. 62
• Parties: BRAGG v. WEAVER et al
• Decision Date: 08 December 1919
• Docket Number: No. 22

251 U.S. 57 40 S.Ct. 62 64 L.Ed. 135 BRAGG

v.

WEAVER et al.

No. 22. Argued Oct. 13, 1919. Decided Dec. 8, 1919.

Messrs. George E. Allen, of Victoriz, Va., and John Garland Pollard, of Richmond, Va., for plaintiff in error.

Mr. J. D. Hank, Jr., of Richmond, Va., for defendants in error.

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Mr. Justice VAN DEVANTER delivered the opinion of the Court.

By this suit the owner of land adjoining a public road in Virginia seeks an injunction against the taking of earth from his land to be used in repairing the road. The taking is from the most convenient and nearest place, where it will be attended by the least expense, and has the express sanction of a statute of the state (Pollard's Code, 1904, § 944a, clauses 21 and 22.)¹ Whether the statute denies to the owner the due process of law guaranteed by the Fourteenth Amendment is the federal question in the case. It was duly presented in the state court and, while no opinion was delivered, the record makes it plain that by the judgment rendered the court resolved the question in favor of the validity of the statute.

It is conceded that the taking is under the direction of public officers and is for a public use; also that adequate provision is made for the payment of such compensation as may be awarded. Hence no discussion of these matters is required. The lbjection urged against the statute is that it makes no provision for affording the owner an opportunity to be heard respecting the necessity or expediency of the taking or the compensation to be paid.

Where the intended sue is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment. Boom Co. v. Patterson, 98 U. S. 403, 406, 25 L. Ed. 206;

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Backus v. Fort Street Union Depot Co., 169 U. S. 557, 568, 18 Sup. Ct. 445, 42 L. Ed. 853; Adirondack Ry. Co. v. New York, 176 U. S. 335, 349, 20 Sup. Ct. 460, 44 L. Ed. 492; Sears v. City of Akron, 246 U. S. 242, 251, 38 Sup. Ct. 245, 62 L. Ed. 688.

But it is essential to due process that the mode of determining the compensation be such as to afford the owner an opportunity to be heard. Among several admissible modes is that of causing the amount to be assessed by viewers, subject to an appeal to a court carrying with it a right to have the matter determined upon a full trial. United States v. Jones, 109 U. S. 513, 519, 3 Sup. Ct. 346, 27 L. Ed. 1015; Backus v. Fort Street Union Depot Co., supra, 169 U. S. p. 569, 18 Sup. Ct. 445, 42 L. Ed. 853. And where this mode is adopted due process does not require that a hearing before the viewers be afforded, but is satisfied by the full hearing that may be obtained by exercising the right to appeal. Lent v. Tillson, 140 U. S. 316, 326, et seq. 11 Sup. Ct. 825, 35 L. Ed. 419; Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526, 537, 16 Sup. Ct. 83, 40 L. Ed. 247; Wells Fargo & Co. v. Nevada, 248 U. S. 165, 168, 39 Sup. Ct. 62, 63 L. Ed. 190. And see Capital Traction Co. v. Hof, 174 U. S. 1, 18-30, 45, 19 Sup. Ct. 580, 43 L. Ed. 873.

With these principles in mind we turn to the statute in question. By clause 21 it authorizes certain officers engaged in repairing public roads to take earth for that purpose from adjacent lands, and by clause 22 it declares:

'If the owner or tenant of any such land shall think himself injured thereby, and the superintendent of roads, or his deputy, can agree with such owner as to the amount of damage, they shall report the same to the board of supervisors, or, if they cannot agree, a justice, upon application to him, shall issue a warrant to three freeholders, requiring them to view the said land, and ascertain what is a just compensation to such owner or tenant for the damage to him by reason of anything done under the preceding section. The said freeholders, after being sworn according to the provisions of section three of this act,²

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shall accordingly ascertain such...