Fugate v. Martin
| Decision Date | 04 March 1968 |
| Citation | 208 Va. 529,159 S.E.2d 669 |
| Court | Virginia Supreme Court |
| Parties | Douglas B. FUGATE, State Highway Commissioner v. John Louis MARTIN, Iris G. Martin and Annie A. Martin. |
Kelly E. Miller, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., Paul D. Stotts, Asst. Atty. Gen., on brief), for plaintiff in error.
William M. McClenny, Amherst, for defendants in error.
Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.
The State Highway Commissioner filed in the court below a petition seeking to condemn a strip of land about one foot wide running 135 feet along the property of John Louis Martin and others, fronting on the western side of State Highway 29, for the purpose of widening that highway. The petition also sought to condemn a construction easement along the entire length of the Martin property and a permanent drainage easement running through it.
Commissioners were appointed and after they had heard the evidence and viewed the premises they filed a report awarding the property owners $3,200 for the value of the land taken and $10,000 for damages to the residue. The lower court overruled exceptions to the report and entered judgment awarding damages in accordance therewith.
The State Highway Commissioner has appealed. His main contention is that the court erred in admitting in evidence and reading to the commissioners a provision in a deed, dated February 10, 1931, whereby the Martins' predecessors in title had conveyed to the Commonwealth of Virginia a strip of land about 33 feet wide running through their property for the location, construction and improvement of what is now a portion of Highway 29. In addition to a general warranty and the usual English covenants, the deed included this provision: 'It is understood and agreed that full and free access from and to the grantors lands Abbouting on the right of way hereby conveyed shall not be obstructed by markers or posts, or otherwise.'
John Louis Martin, one of the owners of the property, operates thereon a retail store fronting on the west side of the highway. The plan for the proposed widening of the highway contemplates the construction of a curbing running the entire length of the Martin property except for two entrances, a 40-foot entrance serving the Martin property alone and a 30-foot entrance to be shared by the Martin property and the adjoining property. Martin testified that this curbing and the limited entrances to the property seriously restricted the owners' access to and from the highway.
The property owners contended that the purpose and effect of the covenant in the deed was to afford their property a 'full and free access from and to' the highway and that the construction of the curbing in front of their property with these limited entrances was a violation of such covenant.
The property owners also contended that the covenant of a full and free access to and from the highway was a valuable property right, for which they were entitled to compensation if it were to be taken in this proceeding.
Counsel for the Highway Commissioner argued that the covenant in the deed was irrelevant to and inadmissible in the condemnation proceeding, that if the property owners had a grievance with respect to the alleged breach of the covenant their remedy was by an action against the State Highway Department for damages for such breach, and that such action must be brought in the Circuit Court of the City of Richmond which alone has jurisdiction of such a proceeding.
Furthermore, the Highway Commissioner contended, if the covenant had the purpose and effect asserted by the property owners, it was illegal and void because the agents of the Highway Department had no authority to make such an agreement.
The lower court ruled against these contentions of the Highway Commissioner. It held that the covenant was pertinent to and admissible in the present condemnation proceeding, that it was binding on the Highway Department, that if the department was taking 'some right' owned by the property owners it should compensate them therefor, and that the rights of the property owners with respect to the covenant were justiciable in the present...
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Ancarrow v. City of Richmond
...have been under Virginia law. See Kornegay v. City of Richmond, 185 Va. 1013, 1030, 41 S.E.2d 45, 53 (1947). See also Fugate v. Martin, 208 Va. 529, 159 S.E.2d 669 (1968). Therefore, we turn to plaintiffs' claim that their property has been taken without compensation under the fourteenth am......