Phillips v. Foster
| Decision Date | 20 January 1975 |
| Citation | 211 S.E.2d 93,215 Va. 543 |
| Court | Virginia Supreme Court |
| Parties | Dallas PHILLIPS and Eulalah Phillips v. Wirt H. FOSTER et al. |
Robert Austin Vinyard, Abingdon (S. Strother Smith, III, Smith, Robinson & Vinyard, Abingdon, on brief), for appellants.
James D. Bowie, Bristol (T. L. Hutton, Jr., Warren & Bowie, Bristol, on brief), for appellees.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
The question we decide in this case is whether Code § 21--428 (Repl.Vol.1960) is unconstitutional as applied to the facts of this case, upon the ground that it authorizes the taking of private property for private use. It provides as follows:
This legislation permitting the condemnation of a drainage easement, of which the foregoing is the principal part, was first enacted in 1848. Acts 1847--48, ch. 110. The first codification, Code 1849, ch. 124, §§ 13--16, has been carried forward to its present form in Code §§ 21--428, --431 without material or substantial alteration, 2 so we will refer to the legislation as it is presently codified.
We declare the statute to be unconstitutionally applied in this case and, accordingly, we reverse the judgment of the trial court.
The record consists of the pleadings filed in the trial court, the orders entered therein, the report of the condemnation commissioners, an exhibit containing portions of the Subdivision Ordinance of Washington County, Virginia, and a plat showing the proposed drainage easement.
Appellees, Wirt H. Foster, Anne T. Foster, and Asia-Pacific Management and Development Corporation (hereinafter the Fosters), filed a condemnation petition on March 2, 1973, in the court below against the appellants, Dallas Phillips and Eulalah Phillips, seeking to condemn, pursuant to Code § 21--428, a drainage easement about 12 feet wide and 200 feet long across the Phillips property located in Washington County.
The Phillips land is adjoined on the south by Virginia State Route 677 and on the north by Fifteen Mile Creek. Adjacent to Route 677 on the south, directly across from the Phillips property and at the location in question, lies a 49 acre tract of land of the Fosters, which they intend to develop into a private housing subdivision. The Washington County subdivision ordinance required that the proposed plan for the subdivision be submitted for approval to several governmental agencies, including the Virginia State Department of Highways. The Fosters submitted their preliminary plan, but the State Highway Engineer refused to approve it because it failed to provide for adequate surface water drainage.
Following the disapproval and after an unsuccessful effort to purchase the drainage easement from the Phillipses, the Fosters filed the instant condemnation petition alleging that the State Highway Department 'requires a drainage easement approximately twelve feet wide to channel such surface water into Fifteen Mile Creek . . .'; that 'the natural and logical path for the aforementioned easement to follow would be the shortest distance from the place where surface drainage water would leave (the Foster) property to the nearest point upon said Fifteen Mile Creek, and said path would take said drainage across the (Phillips) property . . . at a place hereinafter described; (and) that the natural and logical path for said drainage to follow was established in accordance with the recommendation of the district drainage engineer, Virginia State Department of Highways, . . .'
The Phillipses answered, attacking the constitutionality of the statute. The trial court, finding it 'proper to do so,' appointed commissioners who viewed the property accompanied by a land surveyor and representatives of the Highway Department. The commissioners subsequently made their report, which was confirmed by the trial court in the final decree appealed from entered on September 6, 1973. In their report, the commissioners found '(t)he mode of draining the land (of the Fosters), as proposed . . . is proper . . . and the granting of such application is proper.' They awarded compensation for the easement of $300 and awarded $2500 for damages to 'the adjacent and other property' of the Phillipses by reason of the easement.
The Phillipses challenge the validity of the statute on two grounds. They argue, first, that it is unconstitutional on its face. Alternatively, they contend that even if the statute is facially constitutional, the statute has been applied in this case in an unconstitutional manner.
The Fosters contend that the statute was held constitutional 'per se' in Hodges v. Richmond Cedar Works, 120 Va. 492, 91 S.E. 644 (1917). They argue that the statute, as limited by its requirement that the trial court determine the 'propriety' of the taking, and further limited by the federal and state constitutions, 'permits only the taking of private property for public uses and purposes.'
The Fosters also argue that the statute has not been unconstitutionally applied here because the drainage easement will directly benefit the public. In support of this position, they point, first, to the stated objectives of the county subdivision ordinance which provide for '. . . the orderly beneficial growth of the community, and (for promotion of) the public health, safety, convenience, comfort, prosperity and general welfare.' They argue that pertinent provisions of the ordinance indicate '(t)he overwhelming concern of the policy-making authorities of Washington County to both protect and promote on a long range basis the interest of the public in subdivided land, and in particular to assure adequate drainage, . . .' Secondly, they point out that this drainage easement will become public property upon final approval of the subdivision plans and upon recordation of their final subdivision plat, citing Code § 15.1--478. For these reasons, the Fosters contend that '. . . the public will exclusively enjoy the benefit of this drainage easement . . .' and that 'the right to the use of the condemned property, in large part, determines whether or not the use is public or private.'
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