137 Va. 12 | Va. | 1923
after making the foregoing statement, delivered the following opinion of the court:
So far as necessary for the decision of the case, the questions raised by the assignments of error will be disposed of in their order as stated below.
1. Does it appear from the evidence that the award of the commissioners in the instant case was arrived at through a misconception of the principles of law which should have governed them in their action?
There are two principles which should govern commissioners in assessing the damages for the property and property rights proposed to be taken in a condemnation proceeding.
First. Where the property and property rights proposed to be taken have a present fair market value, that value, at the time of the taking, is the “just compensation” to which the owner is entitled under the constitutional provisions on the subject, and is the measure of the award the commissioners should make to the owner therefor; and not the value after future development of the property, or in the vicinity of it, has been made. R. & M. R. R. Co. v. Humphreys, 90 Va. 425, 18 S. E. 901; Richmond & P. Electric R. Co. v. Seaboard, etc., Co., 103 Va. 399, 49 S. E. 512; Swift v. Newport News, 105 Va. 108, 52 S. E. 821, 3 L. R. A. (N. S.) 404; Tidewater R. Co. v. Cowan, 106 Va. 817, 56 S. E. 819; Hunter v. C. & O. Ry. Co., 107 Va. 158, 59 S. E. 415, 17 L. R. A. (N. S.) 124.
Second. Future apprehended damages due to negligent construction or operation of the works of the condemnor cannot, as such, be legally included in the award of the commissioners; for the law furnishes a remedy in the future for the recovery of all such damages, and the right to such recovery is not at all affected by the condemnation proceeding. Alloway v. Nashville, 88 Tenn. 510, 13 S. W. 123, 8 L. R. A. 123; Central Georgia Power Co. v. Mays, 137 Ga. 120, 72 S. E. 900.
On the question which arises under the statute (Code, section 4369), upon exceptions to the report of the commissioners in a condemnation proceeding, of whether “good cause be shown against the report,” in Tidewater R. Co. v. Cowan, supra (106 Va. at p. 824, 56 S. E. at p. 821), this is said: “The main question in
The latter commissioner testifies expressly that his “reason for awarding the $2,500.00 in the case * * * was that the town of Narrows might hereafter build out to this property, * * * and that he considered that the farm would be worth $2,500.00 less with this power line through it.” (Italics supplied.) This statement, when read along with the other testimony of this witness, plainly shows, as we think, that he did not have in mind the principle first above stated and was not governed thereby in making the award. He evidently based his award not upon what he considered was the present fair market value, but what would be such value when the town of Narrows might, in the indefinite future, build out to the property.
The four other commissioners testified that they were induced to make the award chiefly by the con-, sideration that the line might in future break down and injure persons and property; and one of them testified “that if the power company was liable for future damages for negligence he supposed that the sum awarded would be somewhat high”—showing, as it seems manifest, that four of the commissioners allowed a part, at least, of the damages awarded in order to cover future damages which might be occasioned by the negligence of the Power Company or its successors; and that they
It is true that if the prospect of the town of Narrows building out to the property in question had in fact had an effect upon the present fair market value of the property proposed to be taken (that is, upon its fair market value at the time of the proposed taking), or, if the prospect of such improvement was so reasonably expected in the immediate future that it could be estimated with reasonable certainty what was the present fair market value of the property, in view of the use for which it was naturally adaptable under the circumstances which were then reasonably expected to be brought about, not in the remote, but in the immediate future—the commissioners could properly have taken into consideration, in estimating the damages, such expected development of the town of Narrows. That is to say, existing wants of- a community, or such as may be reasonably expected in the immediate future, may be taken into consideration by the commissioners in arriving at the fair present market value of the property proposed to be taken for publie use. Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206; 2 Lewis on Em. Dom. (3d ed.) secs. 706 (478), 707 (479); Central Georgia Power Co. v. Mays, supra (137 Ga. 120, 72 S. E. 900, at p. 902).
In Boom Co. v. Patterson, supra, (98 U. S. 403, 25 L. Ed. 206), in the opinion of the Supreme Court, this is said:
“In determining the value of land appropriated for publie purposes, * * * the inquiry * * * must be what is the property worth in the market, viewed, not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what it is*29 worth, from its availability for valuable use. Property is not to be deemed worthless because the owner allows it to go to waste, or regarded as valueless because he is unable to put it to any use. Others may be able to use it, and make it serve the necessities or conveniences of life. Its capability of being made thus available gives it a market value which can be readily estimated;
“So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes, that it is perhaps impossible to formulate a rule to govern its appraisement in all eases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the propety is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.” See to the same effect, Baltimore, etc., R. Go. v. Bonafield, 79 W. Va. 287, 90 S. E. 868; 20 C. J., sec. 229, p. 774.
As said in 2 Lewis on Em. Dom., supra (see. 706): “Generally speaking the true rule seems to be to permit the proof of all the varied elements of value; that is, all the facts which the owner would properly and naturally press upon the attention of the buyer to whom he is negotiating a sale and all other facts which would naturally influence a person of ordinary prudence desiring to purchase. In this connection, the owner Is entitled to have the jury” (the commissioners under our practice) “informed of all the capabilities of the property, as to the business or use, if any, to which it has been devoted, and of any and every use to which it may reasonably be adapted or applied. And this rule includes the adaptation and value of the property for any legitimate purpose or business, even though it has
“It is said in some cases that it is proper to consider every element of value which would be taken into consideration in a sale between private parties. But this needs some qualification, since remote and speculative-reasons are often urged by the seller in support of the valuation claimed. Some cases say the owner is entitled to the value of the property for the highest and best use to which it is adapted. This is true, in so far as such adaptation affords the market value. But the-proper inquiry is, not what is the value of the property for the particular use, but what is it worth in the market, in view of its adaptation for that and other uses.”'
As said in Richmond, etc., R. Co. v. Seaboard, etc., Co., supra (103 Va. 399, 49 S. E. 512): “It is the present actual value of the land, with all its adaptations to general and special uses, and not its prospective- or speculative or possible value, based upon future expenditures and improvements, that is to be considered.”'
As said in Hunter v. C. & O. R. Co., supra (107 Va. 167, 59 S. E. 418, 17 L. R. A. [N. S.] 124): “* * * the established rule of this court, recognized and approved by textwriters and by the Supreme Court of the-United States, is that the full and perfect equivalent for the property taken in proceedings of this character is. what the law contemplates as the market value there- * ”
We will say, by way of parenthesis, that we do not deal with the subject of how the value of the property should be determined when it has no fair market value,, as that question is not involved in the suit before us.
It is also true that the commissioners could have-properly taken into consideration the effect of the fear of the line breaking down and injuring persons and.
But the testimony of the commissioners leaves the ■distinct impression upon us that they did not have in mind the vital distinction above referred to, that they could properly consider the evidence as to the future ■growth of the town of Narrows, or as to the fear of the line breaking down and injuring persons and property, -only in so far as such evidence affected the present fair market value of the property and property rights proposed to be taken; and that, in truth, they were not governed at all in making the award by a consideration of the present fair market value of the property—the true and only standard by which they should have been .guided, since, as in the instant case, the evidence discloses, without conflict, the property and property rights in question had such a value.
The testimony of the witness Hopkins was- not before the commissioners, so far as the record discloses, ■and three of the commissioners testified expressly that they had no knowledge of the market value of the land.
By nothing that we have said do we intend to affect in the slightest degree the rule, uniformly followed in this jurisdiction, that the finding of the commissioners “is not to be disturbed unless shown to be erroneous by clear proof.” Richmond, etc., R. Co. v. Seaboard, etc., Co., supra (103 Va. 399, 49 S. E. 512), and cases
As said in Hunter v. C. & O. Ry. Co., supra (107 Va. 158, 172, 59 S. E. 415, 420, 17 L. R. A. [N. S.] 124): “* * * the award of the commissioners (is) made upon evidence before them at the ■ time, aided, and greatly aided, in the majority of cases by the evidence of-their own senses, they having the advantage of seeing the property itself * * * and judging of its value.”
It appears, however, from the testimony of the commissioners in the instant ease, given within a very short time after their award (within a little over two months, when the subject must have been still fresh in their minds), that they were not aided by the view, nor, indeed, by any testimony they heard or by any knowledge of their own on the subject, in coming to any decision as to the fair market value of the property, as they showed by their testimony their entire lack of information on that subject, after the view had been had and the evidence introduced before them had been heard by them. All of which strengthens the aforesaid
If the award had been made upon consideration of the proper legal principles aforesaid, the testimony of Hopkins, although only indirectly bearing on the subject of the fair market value of what was taken, might have warranted the court below in confirming the report. But as the award appears not to have been based on correct principles, and as, under the eminent domain statute, the condemnor, as well as the condemnee, is entitled to have an award of commissioners based on such principles, the report should not have been confirmed over the objection and exceptions of the power company urging that defect in the award.
The order under review will, therefore, be set aside and annulled, and the case will be remanded to the court below for the appointment by it of other commissioners and for further proceedings according to law and not in conflict with the views expressed in this opinion.
Reversed and remanded for further proceedings.