Davis v. Marr

• Decision Date: 26 January 1959
• Docket Number: No. 4860,4860
• Citation: 106 S.E.2d 722,200 Va. 479
• Parties: F. A. DAVIS, COMMISSIONER, ETC. v. JOHN E. MARR, ET AL. Record
• Court: Virginia Supreme Court

Page 722

106 S.E.2d 722

200 Va. 479

F. A. DAVIS, COMMISSIONER, ETC. v. JOHN E. MARR, ET AL.

Record No. 4860.

Supreme Court of Appeals of Virginia

January 26, 1959.

Francis C. Lee, Assistant Attorney General (A. S. Harrison, Jr., Attorney General; M. Ray Johnston, Assistant Attorney General, on brief), for the appellant.

Thomas H. Willcox (Edward R. Willcox, Jr.; Willcox, Cooke, Savage & Lawrence, on brief), for the appellees.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

This is a suit in equity by John E. Marr and his two lessees against the State Highway Commission and the State Highway Commissioner seeking to enjoin the defendants from maintaining a 'no left turn' sign at an opening in the median strip dividing U.S. Route 58, the Virginia Beach Boulevard, in front of Marr's property, and to recover damages.

Prior to 1950 the Boulevard was a three-lane highway as it ran eastwardly from Norfolk to Virginia Beach. The Marr property adjoined the highway on the north and on it are a restaurant and dance hall now operated by his lessees. The Highway Commission decided to change the Boulevard into a limited access highway with two eastbound and two westbound lanes divided by a median strip or island having gaps or crossovers therein, and with a service or access road on each side. To make this change it needed a strip of the Marr land about 840 feet in length along the north side of the existing right of way.

By written contract dated November 29, 1949, Marr and his wife agreed to convey this strip of land to the Commonwealth for which Marr was to receive $2,000 'TOTAL for land, any and all damages.' The contract contained this paragraph:

'It is understood and agreed between the parties hereto that the State Highway Department will move the cross over from its present location as shown on plans to Sta. 603+00, which is in effect approximately opposite the center of the Restaurant owned by the landowner.'

The contract specified that it was understood and agreed by Marr for himself, his heirs and assigns, that the land to be conveyed was to be used in connection with the limited access highway, and the conveyance would include all rights of easement and access pursuant to the provisions of Chapter 78 of the Acts of the General Assembly, 1942; and that 'the consideration herein mentioned' should be in lieu of all claims to compensation and damages by reason of the location, construction and maintenance of the highway.

This contract was followed by a deed from Marr and his wife to the Commonwealth of Virginia dated February 10, 1950, conveying the land embraced in the contract. This deed did not include or make any reference to the provision of the contract that the Department 'will move the crossover from its present location' to a point approximately opposite the center of the restaurant. The deed recited that it was made in consideration of the benefits accruing or to accrue to the grantor by reason of the location and construction of the highway, and for further consideration paid to the grantor. It was covenanted by the grantor for himself, his heirs and assigns, that the land conveyed was to be used for or in connection with the limited access highway, 'and this deed is intended to convey all rights and easements of access, light or air by reason of the fact that the land herein conveyed in fee simple abuts upon said Limited Access Highway.'

It was further covenanted and agreed that the conveyance was made pursuant to Chapter 78, Acts 1942, as if fully set forth in the deed, which should be a covenant running with any remaining land of the grantor abutting on the land conveyed; but, as the deed provided, 'Nothing herein contained shall be construed as denying the grantor the right of access from his remaining lands to any service road now or hereafter constructed by the grantee to provide access to said Limited Access Highway.'

This deed was made with covenants of general warranty and the full English covenants, followed by this provision:

'The said grantor covenants and agrees for himself, his heirs and assigns and successors, that the considerations hereinabove mentioned and paid to him shall be in lieu of any and all claims to compensation and damages by reason of the location, construction, and maintenance of said highway, including such drainage facilities as may be necessary.'

The complainants' bill and amended bill alleged in substance that as part of the consideration for the strip of land so conveyed the Commonwealth of Virginia expressly agreed to construct in the median strip opposite the Marr restaurant an opening or crossover to permit ingress to said premises from the eastbound travel lanes and egress from said premises into the eastbound travel lanes, and to maintain said opening or crossover permanently; and that in pursuance of that agreement the opening or crossover was established and had remained in use continuously until April 1957 when the defendants, 'the State Highway Commission and the State Highway Commissioner,' violated the contract by erecting at both the east and west ends of the crossover 'no left turn' signs, the effect of which had been practically to destroy the business of Marr's tenants and to render them unable to pay their rent. The prayer was that the defendants be permanently enjoined from maintaining the signs and that the complainants be awarded damages which had been caused thereby.

The defendants filed a demurrer which was overruled, and then an answer in which they denied that they had agreed to maintain the crossover or that they had the power or authority to enter into any such undertaking on a permanent basis. They denied that the contract referred to prohibited the erection of such signs, and alleged that if so interpreted it was void, was merged in the deed of February 10, 1950, and was in conflict with that deed.

The court heard evidence ore tenus, which related mainly to the traffic conditions, the use of the crossovers, the accident experience, the incovenient way eastbound traffic was required to enter the Marr property because of the signs, and the damage that had resulted therefrom. Marr testified that he dealt with Christian as the representative of the Highway Department, who agreed 'that he would put the crossover in front of [Marr's] place,' in consideration of which he, Marr, agreed to sell and convey his property for much less than others were paid.

Christian, a right of way engineer for the Highway Department, testified that before the contract was signed Marr insisted that the crossover be moved from the point where it had been formerly projected to a point in front of his premises, and upon its being so agreed Marr did not 'haggle over the price.' Later Marr's counsel wrote to the then Chairman of the Highway Commission that it was Marr's understanding that the opening would be wider than it was being constructed, which was 40 feet, and offered to compromise on 50 feet. An assistant right of way engineer replied that the plans were being revised to accord with the understanding between Marr and the representative of the Highway Department.

Neither Marr nor Christian nor any other witness testified to any agreement with respect to this crossover other than as expressed in the written contract quoted above and as referred to in this correspondence with respect to its width.

After considering the evidence, including the contract and deed, the trial court upon reasoning set forth in a written opinion entered the decree appealed from permanently enjoining the State Highway Commission, the State Highway Commissioner and his successors in office, from erecting and maintaining 'no left turn' signs at the crossover in front of the Marr property, and from preventing or prohibiting vehicles from making left turns through such crossover; and decreeing that the complainants were entitled to recover from the defendants such damages as they had theretofore suffered and would suffer until the effective date of the injunction. A commissioner was appointed and directed to ascertain and report the amount of these damages.

The defendants assigned error and on this appeal they contend that the trial court was without jurisdiction to entertain the suit and enter the decree; that the contract was not subject to the construction given it by the trial court; that if it was then it was not admissible in evidence because it would be inconsistent with and alter the terms of the deed; and as so construed it would be void under § 159 of the Constitution as abridging the police power.

The question of jurisdiction was not raised in the trial court but the complainants concede that if it is in fact a matter of jurisdiction the question may be raised for the first time in this court. Wilson v. State Highway Com., 174 Va. 82, 93-4, 4 S.E.2d 746, 751; 11 Mich. Jur., Jurisdiction, § 33, p. 456. The complainants argue that it is a question of venue and that objection here comes too late. Code § 8-133; Rule 2:10; Moore v. N. & W. Ry. Co., 124 Va. 628, 98 S.E. 635. They say this is not a suit against the Commonwealth but against the State Highway Department; that though it arises out of a contract made between Marr and the Commonwealth, yet the appellants are the parties guilty of the acts which gave rise to the suit.

In this connection it is important to ascertain the essential nature of the complainants' claim. It is based on the contract of sale of November 29, 1949, from Marr to the Commonwealth, which stated that it was agreed between the parties that the Highway Department 'will move the cross over from its present location as shown on plans to Sta. 603+00.' The evidence shows, the court found, and it is not disputed, that the crossover was later made in accordance with this agreement. Nobody testified that there was any other or additional agreement. This contract was followed by the deed of February 10, 1950, conveying to the...