City of Roanoke v. Berkowitz

• Decision Date: 27 June 1885
• Citation: 80 Va. 616
• Parties: ROANOKE CITY v. BERKOWITZ.
• Court: Virginia Supreme Court

80 Va. 616

ROANOKE CITY v. BERKOWITZ.

Supreme Court of Appeals of Virginia.

June 27, 1885

Error to judgment of hustings court of city of Roanoke, rendered July 9th, 1884, in certain proceedings therein had for the condemnation of certain land for municipal purposes, wherein said city was plaintiff, and W. F. Berkowitz was defendant.

The record shows that during the summer of 1883, said city, then the town of Roanoke, by its council, undertook, for sanitary effects, to drain a portion of its area, and to straighten the course of a small stream. The town having become incorporated as the city of Roanoke, with a hustings court at the June term, 1884, of said court, commissioners were appointed to condemn the land of said Berkowitz for said purpose, and to assess the damages. These commissioners made an alternative report: first, that if the city should be required to condemn the fee-simple of the land, then Berkowitz should have $1000 damages; second, that if the city should be required to condemn only the use of the land, then he should have only $200 damages. At the hearing on this report, the city moved to quash the same, on the ground that the damages awarded were excessive, and that C. Markley, one of the commissioners, was interested in the subject matter The hustings court overruled the motion, and confirmed so much of the report as gave Berkowitz $1000 damages. To this judgment the city of Roanoke obtained from one of the judges of this court a writ of error and supersedeas.

Penn & Cocke, for the plaintiff in error.

Waller R. Staples and Thos. W. Miller, for the defendant in error.

OPINION

LEWIS, P.

The first assignment of error, which relates to the refusal of the hustings court to quash the commissioners' report on the alleged ground that Markley, one of the commissioners, was interested, and therefore disqualified to act as such commissioner, is not well taken. In the first place, the record shows he was appointed at the instance of the city itself; and it does not appear that if in point of fact he was interested as alleged, the fact was not known to the city at the time of his appointment. And if known, then upon well settled principles, the objection now urged must be considered as having been waived.

The bill of exceptions, it is true, sets forth that " the acting attorney for the city, on whose suggestion the appointment was made, did not know at the time that either of the parties who were appointed commissioners had any interest in the matter, but that C. Markley has since informed him that he owns a lot of land through which the drain in question passes; that no damages have ever been paid him, and that his land has not been condemned." But this may be true, and yet it does not follow that the facts here relied on were not known to the city. For the corporation is represented by various officers and agents, all of whom except its " acting" attorney, for aught the record shows to the contrary, may have had knowledge of the facts of which it is said the latter was ignorant. Moreover, it does not appear that any proceedings are pending or contemplated for the condemnation of Markley's land, or that he is claiming compensation for the same, and non constat that he will.

But if it were conceded that he was disqualified, and that the facts from which such disqualification arose were not known to the city until after the report was returned, still the objection could not be sustained; for the evidence is entirely satisfactory to show that the sum reported is not excessive, and that the city has not been prejudiced. Indeed, it was admitted in the argument by the counsel for the city, that if the law be as contended for by the defendant in error as to the estate or interest to be condemned, the sum so reported is no more than a reasonable compensation for the land in question, including the damages sustained by the defendant in respect to the residue of his lots by reason of the construction of the proposed work.

And this brings us to the consideration of the next assignment of error, which is, that the hustings court erred in holding that in condemning the land, the fee, and not a mere easement, must be taken and paid for.

The decision of this question must be governed by the terms of the statute under which the proceeding was conducted. The right of eminent domain, which is defined to be the right on the part of the state to take or control the use of private property for the public benefit when public necessity demands it, is inherent in every sovereignty, and is inseparable from sovereignty, unless denied to it by its fundamental law. Vattel, book I, ch. 20; Cooley's Const. Lim. 523; Kohl v. United States, 91 U.S. 367. The right, however, must be exercised upon such terms, and in such manner, and for such public uses as the legislature may direct. 2 Kent's Com. 340; 2 Min. Insts. 22, and cases cited. The whole subject, from its nature, belongs exclusively to the legislative department of the government, subject to the limitation imposed by the constitution in respect to just compensation for the property taken; and, hence, all questions affecting the rights of the parties in a case like this, must be determined not with reference to the decisions of the courts of other states, based on the peculiar statutes of those states, but according to the provisions of our own statutes. Those provisions, so far as they relate to the question now before us, are plain and unambiguous. They are as follows: " The sum so ascertained [by the commissioners] to be a just compensation, may be paid to the persons entitled thereto, or into court. Upon such payment, the title to that part of the land for which such compensation is allowed, shall be absolutely vested in the company, county or town in fee-simple, except in the case of a turnpike company, where a sufficient right of way only for the purpose of such company shall be vested." Code 1873, ch. 56, sec. 11. It is difficult to see how language could be plainer, or less liable to misconstruction. The requirement is imperative that the fee shall be vested, except in the single case of a turnpike company, where an easement only is acquired; and the exception proves the universality of the rule which was intended to be prescribed.

Counsel, however, refer to certain other statutory provisions, which, it is claimed, apply to the present case, and require a different determination of the question presented. Reference is made to the act of assembly, embodied in part in section 13, of chapter 120, of the Code of 1873, which enacts, as follows: " Any person desiring to drain his lands through the lands of others, may apply to the court of the county or corporation in which the whole or a part of the last mentioned lands may lie, for the appointment of commissioners to ascertain and report upon the propriety of granting said application, and the damages that may be sustained by the party or parties through whose lands the said drain is proposed to be run; of which application notice shall be given," etc. But it is obvious that this statute has no application to the...