Wygal v. Wilder

• Decision Date: 09 September 1915
• Citation: 86 S.E. 97,117 Va. 896
• Parties: WYGAL . v. WILDER et al.
• Court: Virginia Supreme Court

86 S.E. 97

117 Va. 896

WYGAL .

v.WILDER et al.

Supreme Court of Appeals of Virginia.

Sept. 9, 1915.

Appeal from Circuit Court, Lee County.

Application by W. R. Wilder and another for the establishment of a public road over the lands of M. B. Wygal and others. There was an order of the circuit court establishing the road, and M. B. Wygal appeals. Affirmed.

Pennington Bros., of Pennington Gap, for appellant.

Duncan & Cridlin, of Jonesville, and J. C. Noel, of Pennington Gap, for appellees.

WHITTLE, J. This is an appeal from an order of the circuit court of Lee county establishing a public road over the lands of the appellant, M. B. Wygal, and others, in accordance with the order of the board of supervisors before whom the proceeding originated. The applicants, appellees here, having signified their willingness to bear the expense, it was ordered that the road be graded and constructed at their own proper cost, and they were required to execute a bond with security in the penalty of $2,000 conditioned for the faithful construction and completion of the road as directed.

1. The first error assigned is the action of the court in admitting the report of the viewers to be read to the jury as evidence of what would be just compensation to appellant for the land taken, and for damages to the residue of the tract beyond the peculiar benefits to be derived in respect to such residue from the road to be established. Statutes providing for the appointment of viewers in road cases are of very ancient origin in this commonwealth, and experience has taught that they are an indispensable agency in supplying the tribunal which must ultimately determine the controversy with necessary primary information for its guidance. In the opinion of the Legislature, the rights of the landowner are sufficiently safeguarded by summoning him to show cause against the establishment of the road. Full opportunity is thus afforded to except to the report, to introduce testimony in support of the exceptions, and to make any other proper defense. Moreover, such owner is given the absolute right to demand the appointment of five disinterested freeholders of the county as commissioners to ascertain what would be a just compensation for the land proposed to be taken. These commissioners meet upon the land, and inspect it, and hear evidence, and report their findings to the board of supervisors; and, besides, the statute allows the proprietor, if dissatisfied with the decision of the board of supervisors, an appeal of right to the circuit court, where the matter is heard de novo, with the further right of appeal to this court under the general law. See General Road Law (Acts 1904, p. 191), and amendment of section 5 by Acts 1910, p. 251.

The courts uniformly have attached great importance to the report of commissioners and viewers in road cases. It has been said that the "report of commissioners is to be regarded as conclusive on the question of damages until shown to the satisfaction of the court to be insufficient." Mitchell v. Thornton, 21 Grat. (62 Va.) 164; Cranford Paving Co. v. Baum, 97 Va. 501, 24 S. E. 906.

In Williamson v. Reed, 106 Va. 453, 56 S. E. 174, it was held that:

"Great weight is given to the report of the viewers as to the propriety or impropriety of opening and establishing a public highway, and as to the amount of damage to be allowed to proprietors whose lands are taken, and, unless the record shows clearly that the damage is greater than that recommended by the viewers, the court, as a rule, does not interfere with the report." Heninger v. Peery, 102 Va. 896, 47 S. E. 1013; Lanford v. Va. Air Line Ry. Co., 113 Va. 68, 73 S. E. 566.

2. The second error assigned is that the court erred in...