114 Va. 698 | Va. | 1913
delivered the opinion of the court.
The city of Richmond desiring to widen Seventh street between McDonough and Semmes streets, in Washington ward, filed its petition in the Hustings Court of the city of Richmond, Part II, making T. C. Williams, the owner, party defendant, and asking for the appointment of commissioners to ascertain what would be a just compensation to him for the land proposed to be condemned for its uses. Such proceedings were had that the Alleghany Box Company, a tenant of T. C. Williams, Jr., of the premises in question, was also made a party defendant. Commissioners were appointed by the court, who after receiving instructions went upon the premises, examined witnesses and reported that there should be paid to T. C. Williams, Jr., the sum of $1,600, to the Alleghany Box Company, the lessee, the sum of $100 for the land and other property taken from them; that there would be no damage to the adjacent property of the tenant or owner, or that of any other person, beyond the peculiar benefits that would accrue to such other property from the construction and maintenance of such work; and, finally, the report alloAvs to the Alleghany Box Company the sum of $650 for removing the lumber piled upon the premises and for replacing its fences. To this report the city of Richmond, T. C. Williams, Jr., and the Alleghany Box Company excepted, and the cause coming on to be heard upon the petition, the answer of the defendants, the report of the commissioners, the exceptions thereto, and the depositions of witnesses, the court overruled all of the exceptions and confirmed the report; and upon the petition of the city of Richmond a writ of error was awarded.
The only objection taken to the award by the city of
In section 41 of' Lewis on Eminent Domain, it is said that “Where by taking a part of a tract additional fencing' will be rendered necessary in order to the reasonable use and enjoyment of the remainder, * * * then the burden of constructing and maintaining such fence in so far as it depreciates the value of the land, is a proper element to be considered in estimating the damages.”
It would seem that the only depreciation that would be caused to the value of the land would be by reason of the burden imposed upon.the owner to construct an additional fence, as in the case before us. There was a fence along the Seventh street border of the land condemned, and the taking of twenty feet and appropriating it to the uses of a public street rendered necessary the construction of a new fence. The whole of the square of which the twenty feet condemned is a part1 belonged to T. O. Williams, Jr., by whom it had been leased to the Alleghany Box Company, by which it had been used for the storage of lumber which it became necessary to remove. The cost of this removal and the construction of the fence was estimated by the commissioners at $650. The contention of the plaintiff in error is not as to the amount of the award in this respect, but that anything was allowed for the removal of the lumber.
The court, in No. 6 of its instructions, told the commission that it might consider “the expense of moving the fence and stock of lumber upon the land at the time of the commencement of the proceedings, which may be occasioned by the taking of the land, and not removed in the regular course of business”; the contention of the plaintiff in error being that no allowance to the tenant for the moving of the lumber could be made.
In Hunter v. Chesapeake and Ohio Railway Company 107 Va. 158, 59 S. E. 415, 17 L. R. A. (N. S.) 124, it is said that “the just compensation contemplated is the market value of the property in view of any purpose to which it is adapted. The full and perfect equivalent for the property taken is what the law contemplates as the market value thereof.”
In the case just cited the commissioners to ascertain damages were instructed that they were to consider the expense of moving the large stock of goods carried by Mr. Hunter, and this court, discussing what was the true rule in ascertaining the damages to Hunter when his property was taken, in answer to the contention that Hunter was entitled to damages, for the interruption of his business conducted upon the property, after considering certain cases from other States, said: “Those cases are authority for the proposition that where property is taken for a public use, requiring a removal of a business conducted on
But since that case arose the Constitution has been changed, as we have already seen, and we are now, we believe, for the first time called upon to consider the precise question now presented in the light of the Constitution and laws as they now exist.
Our statute requires the commissioners to ascertain what will be a just compensation for the land or other property proposed to be condemned. In clause 10 of section 5 of the Code, it is provided that the word “land,” or “lands,” and the words “real estate” shall be construed to include lands, tenements, and hereditaments, and all rights thereto and interests therein, other than a chattel interest. The words “other property,” therefore, which are added, must apply to something other than land, or they are wholly superfluous. If, therefore, it becomes necessary to take land and other property, which must of necessity embrace property other than land, we can only satisfy the language of the statute by construing the language used as embracing personal property. So construed, just com
ISTow, in this case, upon the land which was taken there was stored a great quantity of lumber. In appropriating the land to the uses of the city it became necessary to remove the lumber, and we think it plain that in compelling its owner to remove it, a burden was imposed which diminished the value of the lumber and damaged its owner.
We are of opinion, therefore, that there was no error in the instruction given to the commissioners to consider the expense of moving the stock of lumber upon the strip of land condemned.
After the court had entered judgment upon the report of the commissioners, the city of Richmond asked to have the judgment set aside with respect to so much of the award as allowed compensation for the removal of the lumber, upon the ground of after-discovered evidence to the effect that a considerable time before the entry of the judgment the whole of the lumber had been removed to a point in the city of Richmond to which it would have been necessary to remove it in the ordinary course of business if condemnation proceedings had not been instituted, so that no damage had been sustained and no injury inflicted by reason of the proceedings instituted by the city of Richmond.
The land condemned upon which the lumber was stored lay upon one of the principal streets in that part of the city of Richmond formerly known as Manchester, and we are of opinion that the movement of the lumber should have been known to the city of Richmond before the judg
This point seems to be controlled in principle by the case of Jones v. Town of Martinsville, 111 Va. 103, 68 S. E. 265, where it is held that it is too late after verdict to make objection to the alleged misconduct of a juror which was known to the party objecting before the jury had retired; and this court approved the language of Judge Snyder in Fletcher v. Hale, 22 W. Va. 44, as follows: “The rule proceeds upon the ground that a party ought not to be permitted, after discovering an act of misconduct which would entitle him to claim a new trial, to remain silent and take his chances of a favorable verdict, and after-wards, if the verdict is against him, bring it forward as a ground for a new trial. A party cannot be permitted to lie by, after having knowledge of a defect of this character, and speculate upon the result, and to complain only when the verdict becomes unsatisfactory to him.”
Jones v. Town of Martinsville was a case where a motion was made to set aside the verdict upon the ground of the misconduct of a juror, and the motion was refused because the misconduct relied on was known before the verdict was rendered; but the same principle applies wherever the evidence relied upon to produce a different verdict was known
We are of opinion that there was no error in the judgment of the hustings court to the prejudice of the city of Richmond.
The defendant in error, T. O. Williams, Jr., also asks that the judgment be set aside for error in the instructions given to the commissioners, and inadequacy of the damages awarded.
The instructions given by the court, we think, cover every phase of the case, and in obedience to them the commissioners, when they went upon the land to view it, and heard the testimony of the witnesses, were authorized to consider every use to which the land could be applied, or for which it was adapted, and every capability for which it could be used and enjoyed.
Without entering into a discussion of the particular cases, we refer to sections 706 and 707 of Lewis on Eminent Domain, which fully sustain the instructions given.
As was said by this court in Railroad, Company v. Chamblin, 100 Va. 401, 41 S. E. 750, cited with approval in Barnes v. Tidewater Ry. Co., 107 Va. 263, 58 S. E. 594, “The best that can be done is to appoint capable and upright commissioners to go upon the land, examine it, hear testimony, and consider all the facts and circumstances surrounding the situation, and likely to enter into the value of the subject, and thus ascertain what is the value of the land to be taken, and the effect of such taking upon the residue of the tract.”
As no objection was made to the commissioners, we must assume that they were capable and upright; and as no exceptions were taken to the testimony, it must be assumed that all the evidence accessible to the defendants in error was produced and admitted. And this brings us to the consideration of the inadequacy of the damages reported.
In Hunter v. C. & O. Ry. Co., supra, the court said: “The finding of the commissioners in condemnation proceedings is entitled to great weight, and is not to be disturbed unless shown to be erroneous by clear proof. Great weight is attached to the view. The commissioners see the land and can judge of its value themselves, and are also thereby better enabled to apply the evidence produced before them to the subject of controversy, and to determine the weight to be given to its several parts.”
In Barnes v. Tidewater Ry. Co., supra, the court said:
In Lewis on Eminent Domain, section 776, after citing a vast array of authorities, the law is stated,as follows: “The report or verdict may be set aside on the ground that the damages awarded are too much or too little. In setting aside a report on the question of damages, the court will be governed by the same principles as obtain in the case of the verdicts of juries in common law suits. Where there is evidence to sustain the verdict and the testimony is conflicting, the court ordinarily will not interfere on this ground alone; and especially is this the case where the commissioners or jury have viewed the premises. To justify an interference on the ground that the damages are inadequate or excessive the case must be a very clear one, and it must appear that the tribunal has proceeded upon erroneous principles, or has been influence by passion or prejudice, or has disregarded the evidence in the case.”
Upon the whole case, we are of opinion that there was no error to the prejudice of either the plaintiff or the defendant in error, and the judgment of the hustings court is affirmed.
Affirmed.