Forest View Land Co. Inc v. Atl. Coast Line R. Co. *

Citation91 S.E. 198
Case DateJanuary 11, 1917
CourtSupreme Court of Virginia

91 S.E. 198
(120 Va. 308)


Supreme Court of Appeals of Virginia.

Jan. 11, 1917.

[91 S.E. 199]

Error to Circuit Court, Chesterfield County, Action by the Forest View Land Company, Incorporated, against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Smith & Gordon and Jas. F. Minor, all of Richmond, for plaintiff in error.

Wm. B. McIlwaine, of Petersburg, and E. P. Cox, of Richmond, for defendant in error.

KELLY, J. This action was brought by the Forest View Land Company against the Atlantic Coast Line Railroad Company to recover damages for an alleged taking of and damage to certain land belonging to the former company. There was a verdict for the defendant, and to a judgment by the trial court in accordance therewith the plaintiff obtained this writ of error.

The grievance complained of in the declaration was based upon certain changes in the grade of the defendant company's roadbed adjacent to the land involved, and also upon certain changes in the location and grades of two county roads known, respectively, as the Bon Air road and the River road, upon each of which the land abutted. In the course of the proceedings, however, the controversy has narrowed itself, as we understand the record, to the single question of the plaintiff's right to recover for a change in the location and grade of the River road.

The portion of the plaintiff's land directly affected by the changes thus complained of is a tract containing about 30 acres, bounded on the east, for 1, 925 feet, by the railroad right of way, on the south for more than half that distance by the Bon Air road, on the west and northwest, for 2, 437 feet, by other lands, and on the north for a distance of 38 feet by what was formerly and until changed by the defendant company, the south line of the River road. It will not be necessary for the purposes of this discussion to deal with the balance of plaintiff's land. This 30-acre tract, as may be inferred from the foregoing general description, lay mostly toward the Bon Air road, upon which it had an extensive frontage. On the side next to the River road it ran out to a narrow point, ending with 38 feet of frontage on the River road. There was no roadway over this point connecting the tract with the River road, and although such a connection could have been established, the character and condition of the laud was not well adapted to that purpose. The jion Air and River roads form a junction not far to the east of this land, thus giving the entire tract access to both.

The right of way through or along this property was originally acquired, and the railroad was originally built, in 1889. At that time the railroad crossed the Bon Air road at the south of the 30-acre tract and the River road at the north, not exactly at grade, but by what are usually called "grade crossings." The tracks along this land and at these crossings are a part of a belt line running around and to the west of the city of Richmond forming a connection with the defendant company's main line south of the city. This connection was originally made in 1889 at Clopton, a station about three miles south of Richmond. In 1906 the defendant company planned some very extensive changes and improvements of this belt line, involving an increase of its tracks, a widening of its right of way, an extension of the line to a meeting point with the main line some three miles further south at Falling creek, an entire change of grades throughout, and the substitution of an overhead crossing or bridge instead of a grade crossing of the tracks at the River road. To this end the company acquired, by deed dated August 23, 1906, from Eliza H. Schutte and her husband (the then owners of the property here involved), two additional strips of land adjoining the old right of way, one of which is approximately 60 feet wide, and, extending the entire distance between the Bon Air and the River roads, forms the eastern boundary of the above-described 30-acre tract. The deed conveying these additional strips of land, for which the consideration paid was materially in excess of the market value at that time, contained the following provision:

"All such damages to the remainder of the tract of land of the parties of the first part by the construction of a railroad or railroad works on the land hereby conveyed as could be recovered in condemnation proceedings under the statutes are contained in the consideration for this conveyance and are hereby released."

The plan for the readjustment, reconstruction, and improvement of the belt line, which the evidence shows was in contemplation at or about the time when the deed was obtained, was not put into effect until the spring of 1912, about one year after the land alleged to be damaged thereby had been acquired by the plaintiff company. This delay is not otherwise explained than by the suggestion of counsel that it was due to "the historical fact that in the fall of 1906, the winter of 1907, and for several years following, this country passed through times of great financial depression, and that individuals as well as public service corporations were required to exercise the strictest economy and to husband all their resources." This explanation seems entirely plausible, but, whatever may have been the reason, nothing is disclosed...

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