Richmond, F. & P. R. Co. v. Fugate

• Decision Date: 14 June 1965
• Citation: 206 Va. 159,142 S.E.2d 546
• Court: Virginia Supreme Court
• Parties: RICHMOND, FREDERICKSBURG AND POTOMAC RAILROAD COMPANY v. Douglas B. FUGATE, State Highway Commissioner, and S. A. Burnett, et al., etc.

Page 546

142 S.E.2d 546

206 Va. 159

RICHMOND, FREDERICKSBURG AND POTOMAC RAILROAD COMPANY v. Douglas B. FUGATE, State Highway Commissioner, and S. A. Burnett, et al., etc.

Supreme Court of Appeals of Virginia.

June 14, 1965.

Urchie B. Ellis, Richmond (David S. Antrobius, Richmond, on brief), for petitioner.

M. Ray Johnston, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., Paul D. Stotts, Asst. Atty. Gen., on brief), for respondent, Douglas B. Fugate, State Highway Commissioner.

H. Ratcliffe Turner, Richmond (Joseph F. Spinella, Richmond, on brief), for Board of Sup'rs of Henrico County.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

EGGLESTON, Chief Justice.

Invoking the original jurisdiction of this court, the Richmond, Fredericksburg and Potomac Railroad Company has filed a petition against Douglas B. Fugate, State Highway Commissioner, and S. A. Burnett and others, members of the Board of Supervisors of Henrico county, praying for the issuance of a writ of mandamus to compel both the Highway Commissioner and the Board to institute eminent domain proceedings in the proper court to ascertain what compensation is due to the Railroad Company for the damages which, it alleges, have or may be done to its property by the acts of the respondents.

The petitioner alleges that the State Highway Department is constructing a portion of Interstate Highway 64 and certain interchanges between it and other State highways immediately west of the Railroad Company's right of way in Henrico county; that such construction will cause a large flow of surface water during storms into Upham Brook and Horsepen Branch which unite just west of the railroad and flow thereunder through an arch-type culvert; that in the course of such construction the Highway Commissioner 'plans to' improve and relocate certain portions of the channels of these streams, thereby greatly increasing the volume and velocity of surface water therein and through the culvert under the railroad.

It is further alleged that Henrico county, through its Board of Supervisors, has recently made substantial changes in the channel and grade of Horsepen Branch, west of the railroad, thereby greatly increasing the volume and velocity of surface water which in time or storm will flow along this stream and through the culvert under the railroad.

Continuing, the petitioner alleges that by reason of these acts or intended acts of the Highway Commissioner and the county, the 'increased surface water volume and velocity has (sic) directly caused damage' to the property of the Railroad Company, in that the present culvert under its railroad accommodating such surface water from these two streams 'has now become and will be inadequate to accommodate' the surface water volume and velocity; that 'it is, or will be, necessary that' the Railroad Company install three additional culverts to accommodate such surface water, at an estimated cost of approximately $165,000, and that one such culvert has been installed at the cost of $55,271.

The petitioner further alleges that despite its repeated requests, the representatives of the State Highway Department and the county of Henrico have refused to institute condemnation proceedings 'to ascertain the damages that have been done' to its property 'through and by' their authority.

The petitioner concedes that the acts of the State Highway Department and the county, which have demaged its property, have been done under lawful authority. Its only concern is that it may be properly compensated for the damage to its property as required by § 58 of the Constitution of Virginia. ¹

Wherefore, the petitioner alleges, it has 'a clear legal right to relief and there is a clear and unequivocal duty on the State Highway Commissioner and the Board of Supervisors of Henrico county to perform the ministerial acts of condemning' the petitioner's property, and that the petitioner is without other 'specific and adequate remedy.' It prays that a writ of mandamus may issue, directing the State Highway Commissioner and the members of the Board of Supervisors of Henrico county to proceed forthwith to institute and conduct proceedings for condemnation in the appropriate court 'to ascertain what compensation is due your petitioner for damages done to its property.'

The respondents do not question the right of the Railroad Company to compensation for damages, if any, done to its property by the works of public improvement undertaken and being carried on by them, respectively. But they assert that mandamus does not lie to compel them to institute and prosecute a condemnation proceeding or proceedings against the Railroad Company to ascertain and provide compensation for such damages under the allegations of the Petition. Accordingly, they have filed separate motions to dismiss which are, in effect, demurrers to the petition. The grounds of such motions may be stated thus:

(1) The petition does not allege a clear right in the petitioner to the relief sought and a clear duty on the respondents to institute and prosecute condemnation proceedings against the petitioner.

(2) This court should not exercise its original jurisdiction in this case, because it appears from the face of the petition that the case involves complicated questions of fact.

(3) The petitioner has other and adequate remedies at law.

(4) There is a misjoinder of the parties and the causes of action.

We have frequently stated the basic essentials for the issuance of a writ of mandamus in this jurisdiction. As was said in Richmond-Greyhound Lines v. Davis, 200 Va. 147, 151, 104 S.E.2d 813, 816, 'A writ of mandamus is an extraordinary remedial process, which is not awarded as a matter of right but in the exercise of a sound judicial discretion. Due to the drastic character of the writ, the law has placed safeguards around it. Consideration should be had for the urgency which prompts an exercise of the discretion, the interests of the public and third persons, the results which would follow upon a refusal of the writ, as well as the promotion of substantial justice. In doubtful cases the writ will be denied, but where the right involved and the duty sought to be enforced are clear and certain and where there is no other available specific and adequate remedy the writ will issue. * * *'

In that case we quoted with approval 55 C.J.S. Mandamus § 51, pp. 87, 88, where it is said: "Before the writ may properly issue, at least three elements must coexist: (1) The existence of a clear right in plaintiff or the relator to the relief sought * * *. (2) The existence of a legal duty on the part of respondent or defendant to do the thing which the relator seeks to compel, * * *. (3) The absence of another adequate remedy at law, * * *, and, although the coexistence of these elements, standing alone, will not always suffice to justify the issuance of the writ, in the discretion of the court, * * *, the absence of either of these elements will make issuance of the writ invalid." 200 Va. at 152, 104 S.E.2d at 817. See also, Gilliam v. Harris, State Highway Commissioner, 203 Va. 316, 318, 124 S.E.2d 188, 189, 190, and authorities there collected.

In the present case the petitioner seeks to compel both the State Highway Commissioner and the Board of Supervisors of Henrico county to institute condemnation proceedings against it to ascertain and establish the damage doen to its property by the two respondents. There are no allegations which separate the rights of the Railroad Company against the Highway Commissioner and the Board, respectively, or the...