Schmidt v. City of Richmond

• Decision Date: 14 June 1965
• Citation: 206 Va. 211,142 S.E.2d 573
• Court: Virginia Supreme Court
• Parties: Carlton J. SCHMIDT et al. v. CITY OF RICHMOND.

Page 573

142 S.E.2d 573

206 Va. 211

Carlton J. SCHMIDT et al. v. CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

June 14, 1965.

Henry T. Wickham, Richmond (Charles L. Reed, Tucker, Mays, Moore & Reed, Richmond, on the brief), for appellants.

O. C. Thacker, Jr., Asst. City Atty. (J. E. Drinard, City Atty., on the brief), for appellee.

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

SNEAD, Justice.

Carlton J. Schmidt and Mary Schmidt, husband and wife, appealed from an order entered December 31, 1963, in a condemnation proceeding instituted by the city of Richmond, which, inter alia, confirmed the report of the commissioners and vested title to certain parcels of land owned by the Schmidts in the city.

Pursuant to an ordinance adopted by the city council, the city attorney on August 2, 1963, filed a petition under the 'Virginia General Condemnation Act', Code, § 25-46.1 et seq., ¹ to acquire twenty parcels of land to be used for extending the public school playground facilities at Maggie Walker High School. Fourteen of these parcels were owned by the Schmidts and the other six were owned by persons not here involved.

The caption of the petition described the entire property to be condemned as being 3.9 acres, more or less, and set forth the boundaries of it by streets, an alley, a railroad, etc. as stated more particularly in the notice of filing quoted infra. In the body of the petition it was stated that 'the land to be taken * * * is shown enclosed in red lines on the plan on file in the office of the Department of Public Works of the City of Richmond, entitled 'Plan for Acquisition of Property West of Maggie Walker Playground,' marked 'Drawing No. O- 14612-A,' a copy of which is attached to this petition, marked 'Exhibit No. 3,' and prayed to be read as a part of this petition * * *.' The exhibit was attached to the petition filed and it showed each parcel sought to be condemned by its number and metes and bounds description. All of the parcels were enclosed by red lines. The city undertook to describe each parcel by metes and bounds in the body of the petition, but some of the parcels owned by the Schmidts were not properly described according to the plat. The petition stated the names and addresses of the owners of the numbered parcels.

Notice of the filing of the petition was served upon the Schmidts and other landowners. § 25-46.9. It provided in part:

'You are hereby notified that in this proceeding the petitioner seeks to acquire by condemnation proceedings the fee simple estate or interest in and to 3.9 acres, more or less, of land located in the area bounded by Louisa Street, Elizabeth Street, the Seaboard Air Line Railroad and a point 100.63 feet east of Dinneen Street and in the area bounded by Louisa Street, Elizabeth Street, a 10 foot alley south of Louisa Street and a point 100 feet east of Dinneen Street in the City of Richmond for the uses and purposes of the petitioner for extending the public school and playground facilities at the Maggie Walker High School, all of which is described more particularly in the petition and exhibits attached thereto on file in the office of the Clerk of this Court, to which reference is hereby made for a full and accurate description thereof, * * *.' (Emphasis added.)

The notice also stated that the city would apply to the court on September 24, 1963, for the appointment of commissioners to ascertain just compensation for the land to be acquired. It further stated that failure to file an answer and grounds of defense within twenty-one days would not preclude the landowners from appearing on the date set for the appointment of commissioners, from presenting evidence as to valuation and damages, from sharing in the award, not from otherwise protecting their rights but that it would preclude them from any other defense by way of plea in bar, abatement or otherwise. Code, § 25-46.9. The Schmidts did not file an answer or object to the jurisdiction of the court within the twenty-one day period.

No commissioners were appointed on September 24, and on September 30, the city, by leave of court, filed an amended petition to be considered along with the original petition. § 25-46.14. In the amended petition a successor trustee bank was added as a party defendant and the twenty parcels sought to be condemned were again described by metes and bounds. A correct description was given of all except parcel 16 owned by the Schmidts. This parcel was described as beginning at a point 427.50 feet east of the east line of Dinneen street when in fact it begins 316.50 feet from that line. However, the Schmidts owned parcels 15 and 17 which adjoined parcel 16 on each side and the error was readily apparent. The general description of the entire property to be condemned was not changed and the area enclosed by the red lines on the plat was not altered. Notice of the filing of the amended petition was served only on the new party and it stated that on October 25 the city would request the appointment of commissioners.

On October 25, the city filed a list of nine suggested commissioners, and by order entered on October 28 five of them were appointed to try the issue of just compensation for the property sought. They were summoned to appear in the courtroom on November 12 at 2 p. m. to be sworn and instructed and to view the property. The order concluded by stating that on November 12 the court would 'determine the time and place for the trial of the issue of just compensation by the commissioners.' On that day, for reasons appearing sufficient to the court, an order was entered appointing a substitute commissioner to serve in the place and stead of one of the five theretofore appointed. This order likewise stated that on November 12 the court would determine the time and place for the trial of the issue of just compensation, but the record fails to disclose that an order was ever entered fixing a date for such a trial.

On December 2, the commissioners filed their report. It was dated November 27 and recited that on November 12 a view of the property as shown on the exhibit filed with the petition was taken and 'such other proper evidence as was before us' was considered. It fixed the just compensation due the landowners for the condemned property. Compensation for the parcels owned by the Schmidts was ascertained to be $21,050. No Exceptions were taken to the report and on December 31 an order was entered confirming it, vesting title to the condemned property by parcel numbers as shown on the plat (Drawing No. O-14612-A) in the city in fee simple, and referring the matter to a special commissioner appointed to make certain inquiries to enable the court to properly dispose of the funds deposited to the credit of the court by the city.

As directed by the order, the special commissioner gave timely notice to the defendants of the time and place of making the inquiries. The Schmidts appeared specially at the hearing and objected to the execution of the decree of reference on the ground that no valid decree of condemnation had been entered as to them because the city had failed to serve notice upon them of the filing of the amended petition.

The special commissioner filed his report on January 28, 1964. It stated, among other things, that the Schmidts were entitled to receive $21,047.49, the amount allowed by the commissioners less a tax lien of $2.51. The Schmidts filed their exceptions to the report on February 7 and later filed a motion to vacate all proceedings had since the filing of the original petition on August 2, 1963, but the exceptions and the motion were overruled.

The errors assigned by the Schmidts relate to the procedure followed in the condemnation of their land. They first contend that the court erred in entering its order of December 31, 1963, vesting title to their property in the city because they were not given notice of the filing of the amended petition in contravention of Code, § 25-46.9. They assert that the amended petition materially altered the description of the property sought to be condemned and that the taking of their land without such notice 'constitutes the deprivation of their property without due process of law'. The gist of their contention is that notice should have been given of the filing of the amended petition as was required of the filing of the original petition by Code, § 25-46.9, which provides in part:

'Proceedings for condemnation shall be initiated by filing the petition referred to in § 25-46.7 in the court, or in the clerk's office thereof, having jurisdiction under § 25-46.4. Upon the filing of such petition, the petitioner shall give the owners twenty-one days' notice of the filing of such petition and of its intention to apply to the court for the appointment of commissioners to ascertain just compensation for the property to be taken * * *.'

It is conceded by the Schmidts that if the description of the property contained in the original petition was 'sufficient' and that if the only reason for filing the amended petition was to add another party, as contended by the city, then notice of filing the amended petition was not required.

Code, § 25-46.7(b)6 provides that a petition for condemnation shall contain 'A description of the property to be taken sufficient for its identification and a plan or plat of the land to be taken shall be attached as an exhibit to the petition'.

In 6 Nichols on Eminent Domain (3rd ed.), § 26.112, p. 125, it is said:

'* * * Accuracy in the description is deemed essential and in some jurisdictions this requirement is strictly contrued (sic). However, even if there are discrepancies between the description and the plan, if, on the whole, what is meant can be made out, the taking is valid, but if the dimensions are not given in the description and there is no scale on the map, the proceeding is defective. Mere inaccuracy in the...