132 Va. 442 | Va. | 1922
delivered the opinion of the court.
This case is before us on a writ of error to a judgment of the Hustings Court of the city of Richmond.
On November 19, 1919, a condemnation proceeding was instituted in said court by the city of Richmond to acquire, for street purposes, certain lands, a part of which belonged to the defendants in error. The commissioners appointed by the court to assess the value of such lands made and filed a report on October 23, 1920, ascertaining that the said several defendants were entitled to compensation as follows: H. W. Goodwyn, $3,151.90; J. T. Patterson, $3,-033.00; M. C. Patterson, $1,102.50—to which report no exceptions were taken. No payment or deposit was made by the city of Richmond within three months from the date of the filing of said report, and counsel for said defendants gave notice that on April 26, 1921, he would move to vacate said proceeding. Thereupon, the city called a meeting of its council and provided for the required payments, and deposited to the credit of the hustings court, in the National State and City bank, Richmond, Va., the amounts due said defendants, taking a certificate therefor, which was on the same day filed with the papers in the cause.
The city attorney immediately notified all to whom compensation and damages had been allowed, and requested of the court an order authorizing checks to be drawn in favor of all said parties. The defendants in error then, for the first time, claimed interest upon the compensation and damages allowed them; and on May 4, 1921, said report of said commissioners was confirmed, without passing upon the question of the amount of interest to which the defendants. H. W. Goodwyn, J. T. Patterson and M. C. Patterson were entitled, if any.
On May 14, 1921, James T. Patterson and M. C. Patterson, by their attorney, appeared in court, after notice of
The plaintiff in error relies upon one assignment of error, namely:
The action of the Hustings Court of the city of Richmond in allowing the defendants in error interest, on the compensation awarded them for the properties acquired by the city, under the order of May 24, 1921.
The defendants in error rely, first, on their motion to dismiss the writ of error, because the amount involved is not sufficient to support same; and, second, on cross error, that the hustings court allowed interest to defendants in error only from the date of filing the commissioners’ report; when interest should have been allowed from the institution of the proceedings.
This confines our consideration of the case to two questions :
1. Was the writ of error improvidently awarded?
2. Are the defendants entitled to any interest on the amounts awarded them as compensation for their lands, and, if so, from what díate?
The judgment complained of allows interest to the de
In this contention we cannot concur.
Section 6336 of the Code (1919) reads, in part, as follows: “Any person who thinks himself aggrieved by any judgment, decree or order in a controversy concerning * * * the condemnation of property '* * *, irrespective of the amount involved, * * * may present a petition * * * for a writ of error or supersedeas to the judgment or order.”
The subsequent clause of this section, “except as provided in the following section,” has no application to any judgment, decree or order .in a controversy “concerning the condemnation of property,” or concerning certain other matters therein specified.
Section 88, Article VI of the Constitution of the State of Virginia,, provides, in part, as follows: The Supreme Court of Appeals “shall not have jurisdiction in civil cases where the matter in controversy, exclusive of interest and costs, and of interest accrued since the judgment in the court below, is less in value or amount than three hundred dollars, except in controversies concerning the title to or boundaries of land, the condemnation of property, * * * or some other matter not merely pecuniary.”
It is said by this court, in Wilburn v. Raines, 111 Va. 339, 68 S. E. 993: “The condemnation of private property for
The principle supporting an interest allowance is the duty and obligation to make just compensation. Whatever is an essential element in that compensation cannot be excluded, even by legislative enactment. United States v. Rogers, 168 C. C. A. 437, 257 Fed. 397.
The motion to dismiss the writ of error will be overruled.
In Mills on Eminent Domain, section 175 (499), we find this: “Interest should run from the time of the taking
In 2 Lewis on Eminent Domain, the author, at section 742 (499), states the law thus: “In the absence of any statutory provisions controlling the subject, the rule in respect to interest must be derived from the constitutional provisions requiring just compensation to be made for the property taken. * * *
“Where damages are assessed for property to be after-wards taken, the award or verdict should bear interest from the time with reference to which the damages are estimated. * * * The point of time must necessarily be before the compensation can be paid. Between that time and the payment, the owner has only a qualified use of his property. He may use it as it is, but he cannot improve or sell it except subject to rights acquired by the condemnation. As his compensation is withheld from him, though necessarily, he should have an equivalent for such withholding, and that, in law, is legal interest. This is just to the owner. * * * While the assessed value, if paid at the date taken for the assessment, might be just compensation, it certainly would not be, if payment be delayed, as might happen in many cases. * * * It is true, until the company (city) actually takes possession, at the end of the proceedings, the owner has the legal right to possess and use the land. It cannot be assumed that the value of this legal right is equivalent to the interest on the assessed value of the land..
In Reed v. Chicago, etc., Ry. Co. (C. C.), 25 Fed. 886, Judge Shiras says: “A consideration of the rights of the parties under the right of way act shows that it is impossible in these cases for the jury to fix by the verdict the amount of interest to be paid. Whether any interest is recoverable depends upon circumstances. * * *
“These and other like considerations show that in cases of this character, being proceedings of a peculiar nature, the only way in which the rights of all can be fully protected is for the jury to assess the damages as of the date of the assessment by the sheriff’s jury, and then, upon the rendition of the verdict, for the court to make the proper order touching the question of interest. Until the verdict is rendered, it cannot be known whether plaintiff may be entitled to interest. When this is determined by the amount of the verdict, the court can then make the proper order, and the same will form part of the adjudication settling the damages. * * *”
After the commissioners have reported the value of the land condemned to the use of the United States, under act of Congress, August 18, 1890 (26 St. at Large, 316), the owner of the land is entitled to interest on the amount reported, from the time when the right of the government to take the same attaches to the time when payment for the land is made. U. S. v. Engeman (D. C.), 46 Fed. 898.
Chief Justice Winslow, in delivering the opinion of the Wisconsin Supreme Court in Appleton v. R. Com., 154 Wis. 121, 142 N. W. 476, says: “Just compensation must mean
Judge Caldwell, in delivering the opinion of the court in Alloway v. Nashville, 88 Tenn. 510, 13 S. W. 123, 8 L. R. A. 128, states this to be the law: “The jury allowed no interest. No instructions on that subject were given or requested; but after the verdict was returned, and before judgment was entered, Alloway and wife moved the court to add interest. This the court refused to do, and his action in that regard is now assigned as error. The statute authorizing the condemnation of private property for public use, and prescribing the mode of proceeding, is silent on this subject, and the General Statutes {Id., s. 2702), which enumerate instruments that bear interest as a matter of law, does not embrace a case like that before us. Nevertheless, we have no hesitation in holding, upon general principles, that interest should have been allowed from the time of the appropriation of the property * *
The other provisions of the statute, material to a proper consideration of the question at issue, are as follows:
Sec. 4369: “The said report * * * shall be forthwith returned to the clerk’s office of such court of the county or city, where it shall remain for at least thirty days, after which, unless good cause be shown against the
Sec. 4387: “* * * If, in any such proceeding, the amount or amounts ascertained by the commissioners, as aforesaid, be not paid either to the party entitled thereto or into court, within three months from the date of the filing of the report of the commissioners, the proceedings shall, on the motion of the party condemning or of any defendant, be vacated and dismissed as to him * *
While this court has been called upon in numerous cases to pass upon questions arising in condemnation proceedings, yet in only one instance has it had occasion to consider-the question of the allowance of interest upon the amounts awarded as compensation, except where there were two commissioners’ reports, that being the case of Attorney General v. Turpin, 3 Hen. & Mun. (13 Va.) 549.
This case, decided in 1809, involved the securing of the title to the land on which a part of the Capitol Square at Richmond is located. The legislature passed an act in 1779 providing that six certain squares, situated in the town of Richmond, the property of Doctor Philip Turpin, be appropriated to the use and purpose of public buildings, and that
Each of the three judges.—'Tucker, Roane and Fleming— wrote an opinion in the case, and Judge Fleming filed, as a part of his opinion, a decree which was agreed upon as the unanimous opinion of the court. This decree ordered that the Commonwealth pay the appellee, Turpin, the value of said two acres, with interest thereon at the rate of five per centum per annum from the 9th day of April, 1788, the date of the resolution of the directors, by which the two acres were retained for public use, until the same was paid.
There was not, as suggested by counsel for the plaintiff in error, a revaluation of the land finally taken by the State, but simply a revaluation of that portion which was deeded back to Doctor Turpin, in order to ascertain the original value of the two acres retained by the State.
As already observed, the Virginia statute makes no express provision for allowance of interest, except when a second report is filed; and the commissioners’ report, stating the amounts ascertained by them to be just compensation for the lands to be taken, makes no mention of interest.'
We are of the opinion, therefore, that the judgment complained of, in so far as it allows the defendants interest on the amounts awarded them by the commissioners for three months next after the filing of their report and after the payment of the said amounts into court, is erroneous.
For the foregoing reasons, the motion of the defendants in error to dismiss the writ of error will be overruled, and the judgment aforesaid will be amended in the manner indicated and entered here as it should have been in the lower court, allowing interest at six per centum per annum on the amounts awarded by the commissioners, from January 23, 1921 (three months after the date of filing their report), until April 25, 1921, the date on which the money was deposited in bank to the credit of the court, and costs.
Amended and affirmed.