Tench v. Abshire

• Decision Date: 19 June 1894
• Parties: TENCH et al. v. ABSHIRE.
• Court: Virginia Supreme Court

19 S.E. 779

90 Va. 768

TENCH et al.

v.ABSHIRE.

Supreme Court of Appeals of Virginia.

June 19, 1894.

Establishment op Road—Procedure—Notice.

1. In proceedings to condemn a road and assess damages, under section 951, Code 1887, if the evidence is not certified, it will be presumed that the award of the viewers and commissioners is adequate.

2. The width and grade of the road need not be stated in the report of the viewers.

3. Where the parties interested in road proceedings appear and contest an application for viewers, under section 949, Code 1887, no notice is required.

4. An order of court in road proceedings which specifies that a certain party shall erect and maintain gates at every point at which the road crosses a certain fence is sufficiently definite.

Error to circuit court, Franklin county; S. G. Whittle, Judge.

Proceeding by J. L. Abshire against Salina A. Tench and others to establish a road, under Code, c. 43. A judgment of the county court affirming the report of viewers was affirmed by the circuit court, and defendant Tench brings error. Affirmed.

P. H. Dillard, for plaintiff in error.

E. W. Saunders, for defendant in error.

LEWIS, P. 1. The first objection is that the sum allowed the appellant for the lands actually taken is inadequate. It seems that the land so taken did not exceed one-half acre, and the sum allowed was one dollar. The appellant being dissatisfied with the report of the viewers, commissioners were appointed to assess the damages, under sec-tion 951 of the Code, who agreed with the viewers as to what was the just compensation, and their report was confirmed. An appeal was thereupon taken to the circuit court, and the judgment of the county court affirmed. The evidence is not certified, and in this condition of the record we must presume that the sum awarded was adequate.

2. The next point is that the report of the viewers ought to have been quashed, because the width and grade of the proposed road is not given, and because no map or diagram was returned with the report. In point of fact, a diagram was returned with the report, which appears in the transcript. Now, is there any requirement of the statute that the width and grade of the road shall be stated in the report? The second objection, therefore, like the first, is untenable.

3. So, also, is the third, viz. that notice was not given to the proprietors and tenants of the lands on which the road was established, as required by section 949 of the Code. The appellant...