Duncan v. State Highway Comm'n

• Decision Date: 11 June 1925
• Citation: 128 S.E. 546
• Parties: DUNCAN. v. STATE HIGHWAY COMMISSION.
• Court: Virginia Supreme Court

128 S.E. 546

DUNCAN.

v.STATE HIGHWAY COMMISSION.

Supreme Court of Appeals of Virginia.

June 11, 1925.

Error to Circuit Court, Culpeper County.

Condemnation proceeding by the State Highway Commission against E. P. Duncan. To review the judgment of the circuit court, condemning lands and affirming action of the Commission, defendant brings error. Affirmed.

Hiden, Bickers & Button, of Culpeper, for plaintiff in error.

J. F. Hall, of Richmond, and Waite & Perry, of Culpeper, for defendant in error.

CAMPBELL, J. This is a writ of error awarded by one of the judges of this court to the action of the court below, condemning the lands of plaintiff in error for highway purposes.

On the 21st day of September, 1923, H. G. Shirley, chairman of the highway commission of Virginia, filed his petition in the circuit court, alleging, among other things, that he is authorized by the laws of the state to condemn land for the construction, reconstruction, alteration, maintenance, and repair of roads embraced in the state highway system: that he has made a bona fide effort to agree, having offered E. P. Duncan the sum of $248.50 for the land to be taken, which offer the owner refused to accept, and because of the inability of the owner to agree upon the price or terms he cannot agree to the terms of purchase with those entitled to the land, which is wanted to be taken and used in the construction, reconstruction, alteration, maintenance, and repair of project S-290, route 32, a road embraced in the state highway system; that accompanying this petition is a plat which fully describes the land sought to be condemned.

The prayer of the petition is that commissioners be appointed, as provided by law, to ascertain what will be a just compensation for the land proposed to be condemned for his use, and to award damages, if any, resulting to the adjacent or other property of the owner, beyond the peculiar benefits that will accrue to the property from the construction of the road.

The commission, composed of five disinterested freeholders, was appointed, and pursuant to the statute a day was designated for the commission to meet. On the 30th day of October, 1923, the day designated in the order, the commissioners, after being duly sworn, met upon the land, for the purposes mentioned in the order. The report of the commission is as follows:

"We, D. W. Kelly, J. H. Guinn, T. T. Shadrach, and E. L. Mahoney, four of the five commissioners appointed by the circuit court of Culpeper county, Va., to ascertain what will be a just compensation for such part of the land of the freehold whereof E. P. Duncan is tenant, and for such other property as is proposed to be taken by the state highway commission, and to assess the damages, if any, resulting to the adjacent. or other property of the said tenant or owner, or to the property of any other person, beyond the peculiar benefits that will accrue to such property, respectively, from the construction and operation of said highway, as a part of the highway system of Virginia, do certify that on the 30th day of October, 1923, the day designated in said order, we met together on the said part of the land, the limits of which part were then and there described to us as follows, to wit: 1, 200 feet long and 10 feet wide, aggregating 12, 600 square feet, or 28/100 of an acre, and after being duly sworn, upon a view of the part aforesaid, and of the adjacent and other property of said owner and of the property of other persons, who will be damaged in their property by the construction and operation of said state highway, and upon such evidence as was before us, we are of opinion and do ascertain that for the said land to be taken $100 will be a just compensation and $50 for damages for fencing; and it is distinctly understood that the said Duncan is to remove the fence now on said land and erect the fence cutting off this strip from the residue of said land as he sees fit— that is, the $50 is to cover all damage of fencing. The total damages allowed by us being $150. The damages to the adjacent and other property of said tenant or owner, and the property of other persons who will be damaged by reason of the construction and operation of said state highway, beyond the peculiar benefits that will accrue to such property, respectively, from the construction and operating said way, are nothing."

When the report was filed, plaintiff in error excepted to the same on the following grounds:

"That the amount allowed him for the land taken from his said tract or parcel of land adjacent to the town of Culpeper, in the county of Culpeper and state of Virginia, for the amount taken, to wit, 28/100 of an acre, and the amount allowed for all damages, $150, is grossly and entirely inadequate.

"That he has been offered $1,000 per acre for the entire tract, and that the frontage on said tract from which the said roadway is taken is much more valuable than the other part of the said tract of land.

"That H. G. Shirley, chairman of the highway commission of Virginia, offered the said defendant $248.50 for the said 28/100 of an acre of said land to be taken for said purposes of said highway commission, which the said defendant declined because this amount was in his opinion entirely inadequate."

The court, having heard the evidence and arguments of counsel, confirmed the report of the commissioners and allowed plaintiff in error the sum of $150 damages.

It is to that action of the court this writ of error was awarded.

A motion to dismiss the writ of error as improvidently awarded has been made by the defendant in error, on the ground that the amount in controversy is less than the sum of $300, the jurisdictional amount fixed by section 6337, Code of 1919, for this court.

The proceedings in this matter were brought under the provisions of chapter 403, Acts of Assembly 1922. Upon the question of the right of a landowner to contest the award of damages found by the commissioners, the act provides:

"Upon the return of the report of the commissioners or viewers appointed in such proceedings, the sum ascertained thereby as compensation or damages to the property owners may be paid to the person or persons entitled thereto, or for them into court or to the clerk thereof, upon which title to the property and rights condemned shall vest in the commonwealth of Virginia in fee simple, or to such extent as may be prayed for in the petition, and the chairman shall have the right to enter upon such construction upon or use of the property and rights condemned as may be authorized bysaid report, provided the right of appeal from or review of said report on exception thereto is hereby given to the property owner, or to the chairman, to the circuit court, on the question only of damages or compensation."

It is to be observed that the sole question for the determination of the court is one of damages, which question may be presented in various ways, either by the property owner or the chairman of the highway commission. In the instant case the property owner raises the question by excepting to the report of the commissioners on the ground that the damages awarded are inadequate, and asserts and introduces proof that the.282 of an acre taken is worth the sum of $564. In cases of this nature, the exceptor is the plaintiff, and exception filed takes the place of a declaration, and the amount involved is the bona fide claim of the damages suffered. In Hawkins v. Gresham, 85 Va. 34, 6 S. E. 472, it is held that the jurisdiction is determined, not by the amount which may come in question, but by the amount of plaintiff's claim, or that by which defendant can discharge himself.

The claim for the plaintiff in error being for the sum of $564, and proof being offered to sustain the same, if this court should adopt the view of plaintiff in error, then under the provisions of section 6365 of the Code of 1919, instead of remanding the case for a new trial, judgment could be entered here for the amount to which plaintiff in error would be entitled.

The motion to dismiss the writ of error will be overruled.

This brings us to a consideration of the assignment of error relied on by the plaintiff in error.

First:

"This assignment of error was the refusal of the court to admit testimony showing the amount offered by the state highway commission for the land of the defendant that it desired."

There is no merit in this assignment. In Lewis on Eminent Domain, vol. 2, § 666, it is said:

"Offers made by the condemning party to the owner, for the property in question, are in the nature of an attempt to compromise, and cannot be proved."

In Upton v. South Branch Reading R. R. Co., 8 Cush. (Mass.) 600, the court held:

"The evidence offered by the petitioners to show that the respondents have made a certain offer to them for their damages was properly rejected."

In Metropolitan St. Ry. Co. v. Walsh, 197 Mo. 392, 94 S. W. 860, this is said:

"There was also an inquiry made of witness Harrison as to his knowledge of what price the railway company had offered for this property, prior to institution of condemnation proceedings, and the further inquiry as to whether or not the sum of $7,000 or $8,000 had been offered. It will suffice to suggest that, while it may be proper to show that there was a failure to agree upon the amount to be allowed for the property desired for public use, it was not essential, nor was it competent, to go into details of the negotiations for the purchase of the property and show different amounts offered to the respondents for it. It was...