Swann v. Wash.-southern Ry. Co
| Decision Date | 11 June 1908 |
| Citation | 108 Va. 282,61 S.E. 750 |
| Court | Virginia Supreme Court |
| Parties | SWANN et al. v. WASHINGTON-SOUTHERN RY. CO. |
Assignments of error affected by extraneous evidence, and not made the subject of exception or bill of exception in the trial court, are not available on appeal.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1432.]
Under Code 1904, § 1105f (3)-(6), authorizing the condemnation of "lands or any interest or estate therein, or materials or other property, " an easement of right of way is subject to condemnation.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 104.]
Where, in a condemnation proceeding, the commissioners' report fixed defendants' damages at $5,100, "if no other way is provided by the railway company as a substitute for those condemned, or at $3,000 if the company shall furnish such other way, " the circuit court properly rejected so much of the report as contemplated the possible establishment of a new right of way as surplusage, and adopted and confirmed the $5,100 award unconditionally; the report not being rendered void by its alternative feature.
In a condemnation proceeding, it was beyond the commissioners' and the court's jurisdiction to take cognizance of property rights of strangers in title to defendants and their property, they not being parties to the proceeding, arid to make their separate and distinct holdings the subject of a joint award; the provision of Code. § 1105f (14), for a reference to enable the court to properly dispose of money paid into court upon an award of commissioners, and for an ascertainment as to who are entitled to the fund and in what proportions, applying to funds in which there is a community of interest among the claimants.
Error from Circuit Court, Alexandria County.
Condemnation proceeding by the Washing-ton-Southern Railway Company against Sarah S. Swann and another. From a judgment for plaintiff, defendants bring error. Reversed and remanded.
Chas. I. Simms, for plaintiffs in error.
Leake & Carter and Francis L. Smith, for defendant in error.
WHITTLE, J. Sarah S. Swann and Mary M. Swann bring this case here on writ of error to review the judgment of the circuit court of Alexandria county, whereby certain easements of rights of way belonging to the plaintiffs in error over the land of the defendant in error, the Washington-Southern Railway Company, were condemned for the use of the company.
The assignments of error are, for the most part, of a character to be affected by extraneous evidence, and, not having been made the subject of exception, or bill of exception, in the trial court, cannot, upon familiar principles, be availed of on appeal. Lewis v. Washington, 5 Grat. 270; Muire v. Falconer, 10 Grat. 12; Mitchell v. Thornton, 21 Grat. 164; Ashby v. Bell's Adm'r, 80 Va. 811. We shall, however, notice briefly such of them as do not come within the proscription of the foregoing rule.
Thus it is contended that a mere easement of right of way is not subject to the law of eminent domain.
The statute in terms embraces "lands, or any interest or estate therein, or materials, or other property"—Va. Code 1904, § 1105f (3)-(6)—and "land has been held to include easements * * * and other incorporeal hereditaments, and all rights thereto and interests therein, * * * and to be synonymous with the terms 'real estate' and 'real property.' " 2 Bouv. L. Diet. 306. The antecedent section has been quite recently construed by this court, and the wide scope of the statute recognized and maintained. Clear Creek Water Co. v. Gladeville Imp. Co. (Va.) 58 S. E. 586.
Such easements are plainly within the intendment of the law.
The next assignment of error involves the contention that the alternative feature of the report—which fixes the damages at $5,100, if no other way is provided by the railway company as a substitute for those condemned, and at $3,000 if the company shall furnish such other way—renders it null and void, and beyond the power of the court to give effect to the award of the commissioners.
The circuit court rejected so much of the report as contemplates the possible establishment by the company of a new right of way as surplusage, and adopted and confirmed the award of...
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Laramie Valley Railway Company v. Gradert
... ... complied with the law. 2 Lewis' Eminent Domain (3rd Ed.) ... § 761, p. 1360; 20 C. J. 1034-5, § 421; Swann ... vs. Washington R. Co., 108 Va. 282, 61 S.E. 750. See ... also Aken v. Parfrey, 35 Wis. 249; Walbridge v ... Cabot and Walden, 67 Vt ... ...
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State ex rel. Polson Logging Co. v. Superior Court for Grays Harbor County
... ... 927; United States v. Welch, ... 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787, 28 L.R.A.,N.S., ... 385, 19 Ann.Cas. 680; Swann v. Washington Southern ... Railway Co., 108 Va. 282, 61 S.E. 750; Davis v ... Board of Education, 166 Md. 118, 170 A. 590; 2 Lewis, ... ...
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Jeter v. Vinton-roanoke Water Co
...same, we deem it only necessary to say that this question has been put at rest by the decision of this court in Swann v. Washington, etc., R. Co., 108 Va. 282, 61 S. E. 750, and authorities there cited, to the effect that under the Code of 1904, § 1105f, authorizing the condemnation of "lan......
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...under the definition of "real estate" contained in the statute. The second paragraph of the syllabus in Swann et al. v. Washington Southern R. Co., 108 Va. 282, 61 S.E. 750, is as follows: "Under Code 1904, § 1105f(3)-(6), authorizing the condemnation of `lands or any interest or estate the......