City Of Richmond v. Carneal

• Decision Date: 17 March 1921
• Parties: CITY OF RICHMOND. v. CARNEAL et al.
• Court: Virginia Supreme Court

106 S.E. 403

CITY OF RICHMOND.

v.CARNEAL et al.

Supreme Court of Appeals of Virginia.

March 17, 1921.

Error to Hustings Court of Richmond.

Petition by the City of Richmond to condemn land, opposed by James D. Carneal and others. Petition dismissed as to a portion of the land sought to be taken, and the city brings error. Affirmed.

H. R. Pollard, of Richmond, for plaintiff in error.

J. Thomas Hewin, Jas. T. Carter, J. Samuel Parrish, D. C. O'Flaherty, and H. W. Goodwyn, all of Richmond, for defendants in error.

BURKS, J. The chief point involved in this case is the constitutionality of an act of assembly approved February 29, 1916, amending a previous act, relating to the opening and widening of streets by cities and towns. Acts 1916, pp. 112, 113. So much of the act as need be quoted is as follows:

"Any city or town in this commonwealth proposing to open or widen a street by taking any part of a block or square in such a manner that the value of the property abutting the proposed street, would be injuriously affected unless the property on such block or square is replatted and the property line readjusted, then and in that event the city or town * * * may * * * acquire by * * * condemnation * * * all or any part of the property on such squares or blocks and may subsequently replat and dispose of the property so acquired, in whole or in parts, making such limitations as to the uses thereof as it may see fit."

The city had annexed to its boundaries the town of Ginter Park, and under the decree of annexation was required to open a suitable and adequate highway from said town to the business center of the city. Pursuant to that decree, and by virtue of the authority of said act of assembly, the city by its constituted authorities petitioned the hustings court of the city to open a boulevard 80 feet wide between two designated points in the city as enlarged, and filed with its petition a map or diagram of the proposed boulevard showing the land proposed to be taken for the location of the boulevard, and also the land on each side thereof proposed to be taken. The petition states that the land proposed to be condemned is needed for the opening and maintenance of a public street. The map or diagram filed with the petition shows that the proposed boulevard is of a uniform width of 80 feet, with a parkway in the center, and that it cuts diagonally across one or more squares or blocks of the city, so that the residue of lots therein not taken for the boulevard would touch the said boulevard obliquely and not on perpendicular lines. In some instances it would take a large portion of the lot through which it runs, in others only a small portion. It is stated in the resolution of the city council directing the condemnation, and also in the petition, that the city council is of opinion that not to acquire all or parts of the proposed property on certain blocks, squares or lots, through which the said proposed street will pass, would render it impracticable, without extraordinary expense, to make the proposed improvements, and it was also of opinion that certain of the properties abutting on the strips or parcels of land so to be acquired for the opening of the said street would be injuriously affected in value unless the whole or certain parts of the property in such blocks or squares are replatted and the lines readjusted to the new proposed street lines. The map or plat shows distinctly not only the lines of the street or boulevard proposed to be taken, but also the land on each side thereof proposed to be taken. Certain of the proprietors of lands proposed to be taken appeared and moved to dismiss the city's petition on several grounds, but chiefly on the ground that the statute aforesaid and the ordinance of the city passed in pursuance thereof are unconstitutional and void in so far as they authorized the taking of the lands outside of the strip 80 feet wide which was to be used for the street, because the use to which they were to be applied was not a public use. The hustings court took this view of the case, and while it directed the establishment of the street or boulevard, of the uniform width of 80 feet as shown on the map or plat, it dismissed the petition as to the lands outside of said street or boulevard. To this order a writ of error was awarded by this court.

The ordinance of the city and also the petition cite and rely upon the act of February 29, 1916, as authority for the right to condemn the lands outside of the lines of said street or boulevard. It is obvious, therefore, that the determinative question in the case is the validity of the statute aforesaid.

The only evidence offered in the cause was the map aforesaid and the resolution of the city council, which were filed as exhibitswith the petition, and which are also referred to by the commissioners who assessed the damages.

We remark in limine that the test of the validity of the statute is not merely what has been done under it, but what may be done under it. Violett v. Alexandria, 92 Va. 561, 23 S. E. 909, 31 L. R. A. 382, 53 Am. St. Rep. 825.

Under the act above quoted, if the proposed street takes only a small portion of a lot, leaving the owner's dwelling or place of business, or both, untouched, the city may nevertheless take the residue also, if the other conditions mentioned in the act exist, and the statement in the brief of counsel for J. D. Carneal is that just this condition exists in the instant case. That statement is that—

"The r.treet or parkway cuts off a little corner of his lot; outside of that is a house, which is a home and a place of business, where the owner has been for 30 or 40 years."

So that the question presented for consideration Is not merely what is possible under the act, but what is actually proposed to be' done under it. We must consider, therefore, whether the taking of such residue, not needed for the street, is a taking for a public use.

The statute requires the petition to state the object for which the condemnation is asked. Code, § 3464. The petition in this case states the object as "the opening and maintenance of a public street." The opening of a public street is recognized everywhere as a public use, and the taking is not resisted as to so much of the land as is needed for the street. It is resisted only as to what is termed the "excess condemnation." As to the taking for the purpose of "maintenance of a public street, " we know of no law to warrant it.

It has been urged upon us that "forward looking legislation has broadened state control over private property to meet social needs, and that the courts have likewise advanced, in sustaining the broadening legislation, " and that within the last half century there has been a continued movement toward the enlargement of the powers of municipal corporations. Amongst other illustrations given are condemnations for public parks, boulevards and pleasure drives, public baths, playgrounds, libraries, museums, and the like, and even for aesthetic purposes. No such use is proposed in the present case, and it is beside the mark to discuss it. What is here proposed is to condemn land not needed for the street, replat it and sell it to others, presumably at a profit as no reason is assigned for the "excess condemnation, " except that the city council is of opinion "that not to acquire all, or parts of the property on certain blocks, squares or lots, through which the said proposed street will pass, would render it impracticable, without extraordinary expense, to make the proposed improvement." The lot owners are no more concerned than other taxpayers of the city with the cost of opening the street, but they have the right to insist that their property adjacent to the street shall not be taken from them and sold at a profit, either to pay or to reduce the expense of opening the street. Such a transaction may be good financing on the part of the city, and greatly to its benefit, but such use of private property is not a public use. "Public use" and "public benefit" are not Synonymous terms.

Counsel for the city has been affluent in his citation of cases and text-books on the subject of "public use, " and some of the cases thought by him to be most apposite will he hereinafter noticed, but none of them has gone to the extent here claimed. There have been a number of decisions in this state on the subject of what constitutes a public use, some of them of recent date, and while none of them involved the precise point now before us, they throw sufficient light upon the subject to guide us to a sound conclusion. We shall consider these first.

While the question of the necessity, propriety, or expediency of resorting to the exercise of the power of eminent domain is a legislative function, in the absence of a constitutional inhibition (Zircle v. Southern Ry. Co., 102 Va. 17, 45 S. E. 802, 102 Am. St. Rep. 805), what constitutes a "public use" is a judicial question to be decided by the courts. The Legislature is forbidden to enact "any law whereby private property shall be taken or damaged for public uses, without just compensation, " which in effect carries out the fundamental law of England and America that private property cannot be taken for private use, with or without compensation, but can only be taken for a public use. This inhibition, like other constitutional provisions, it is the duty of the courts to enforce. The Legislature cannot conclude the constitutionality of its own enactments. Miller v. Pulaski, 109 Va. 137, 63 S. E. 880, 22 L. R. A. (N. S.) 552; Jeter v. Vinton-Water Co., 114 Va. 769, 76 S. E. 921, Ann. Cas. 1914C, 1029; Boyd v. Ritter Lumber Co., 119 Va. 348, 89 S. E. 273, L. R. A. 1917A, 94.

In Roanoke City v. Berkowitz, 80 Va. 616, 622, this court referring to the general statute on eminent domain which required the condemnation of the fee, and which was attacked as repugnant to the Constitution, said:

"The Constitution imposes no other limitation on...