107 Va. 158 | Va. | 1907
delivered the opinion of the Court.
This writ of error is to a final judgment of the Hustings Court of the city of Richmond, in a proceeding instituted by the defendant in error, The Chesapeake and Ohio Railway Company, against plaintiff in error’s intestate, C. E. Hunter,
The whole of the premises being considered necessary, and therefore demanded, for the purposes of the railway company, commissioners, as provided by statute, were appointed to view the property, and, upon hearing such proper evidence as either party might offer, to report what would be a just compensation to Hunter. These commissioners filed their report on the 28th of October, 1899, ascertaining the compensation to be paid Hunter at $15,000, but, upon exceptions taken by Hunter, the court, by its order entered April 30, 1900, set aside the award, and, by a further order, entered May 7, 1900, new commissioners were appointed, the court giving to them minute instructions, in writing, to guide them in the discharge of their duties. To the giving of these instructions, defendant in error objected, and tendered another instruction in lieu thereof, which was refused.
Three of these new commissioners acted, and filed, on the 22nd day of May, 1900, their award, ascertaining that a just compensation for Hunter, for the property in question, would be the sum of $22,900, and stating that, as the whole of the property was required for the purposes of the defendant in error, there was no question of damages as to residue of the tract, etc. To this report, the defendant in error excepted on four grounds, stated in writing, and moved that the report be set aside.
After the filing of this report, Hunter departed this life, and his death being suggested, the court, by its order entered on the 26th day of July, 1900, made plaintiff in error, St. George
Ho action was taken on the report of the commissioners hearing date May 22, 1900, until March 22, 1905, when defendant in error introduced the three commissioners, who made the report and examined them as to how they arrived at the amount awarded Hunter. They had not furnished the court any information as to how they arrived at the amount awarded, and when examined as witnesses, about five years afterwards, it appears from their testimony that, while they could not, with any degree of certainty, give the grounds of the award made, they were positive that they had followed the minute instructions of the court as they were understood at the time. Testifying from memory, aided only by some loose memoranda kept, they further say in effect, that, in making up the amount of the award of $22,900, the sum of $5,000 was included for injury to the business of Hunter. In other words, according to their memory as to what occurred five years before, $5,000 was allowed for damage, interruption, etc., of Hunter’s business, i. for “taking a man’s business away from him.” Whereupon the court entered its order, to which this writ of error was awarded, reducing the amormt of the award from $22,900 to $17,900.
The ruling’ of the court, setting aside the award of the first commissioners, was assigned by counsel for defendant in error as cross-error under Eule IX of this court, but the assignment was waived, as the evidence upon which the award was made is not properly a part of the record brought before us.
The first question for our determination is, What was the true rule, under the constitutional and statutory inhibition, that private property shall not be taken for public uses without just compensation, governing in ascertaining the damag-es to Hunter when his property was taken?
Of the numerous decisions of other States cited in the petition for this writ of error, we need only say that they do not support the contention of counsel when the whole of the decision is read, or else were rendered under constitutions and statutes different from the constitution and statutes controlling in the decision of this case, or are cases where part of a tract was¡ taken and damage to the residue was the point considered, or cases of temporary suspension of business, where the loss was capable of being estimated. It is a matter of course that, where the constitution and statute of a state provide, not only for just compensation for property taken, but for all damages that the owner may suffer by reason of the taking, the rule governing in ascertaining the amount of damages to be awarded the owner, would be very different from the rule so long established in this State, and followed by the lower court in this case, where the whole property is taken and no question arises as to damages beyond the fair market value of the property.
In a note to Hamilton v. Pittsburg &c. R. Co., 51 L. R. A.
Those cases are authority for the proposition that, where property is taken for a public use, requiring a removal of a business conducted on it theretofore, the owner, apart from the value of his property taken, the expenses incurred in moving, etc., is entitled to recover for loss of profits from the suspension of business while moving; but this rule of law finds no sanction in our own decisions, nor is it regarded as the established rule by the weight of authority in this country.
We are called upon also to consider a line of decided cases supporting the proposition, that the owner of property is entitled by law to the undisturbed and exclusive enjoyment of his estate, and to keep out all trespassers, this being a part of his property in his estate; but clearly they do not apply, as defendant in error was in no sense a trespasser upon the property of Hunter or his property rights, when proceeding, by authority of law, to acquire title to his property by condemnation for a public use.
Citation of another line of cases is also made in support of the contention, that the quiet use and enjoyment of property is to be separated and distinguished from the property itself, so as to entitle the owner to just compensation for both, when the property is taken in the exercise of the power of eminent domain; but, again, we have to say that these cases do not apply to this case. The leading case in that line of cases is B. & P. R. Co. v. First Bap. Church, 108 U. S. 331, 27 L. Ed. 739, 2 Sup. Ct. 719. In that case, the judgment of the lower
With respect to our own decisions, we are told in the argument, that, while the measure of damages in many cases may be the market value of the property condemned, in ascertaining that value it is competent to prove any use, the highest and best use, for which it is adapted; but the most enlightened courts have never held that the market value is the only standard, and that cases may not, and do not, arise where a proper observance of the constitutional provision, that private property shall not be taken for public use without just compensation, may require the award of damages actually sustained, other than those measured by the market value of the property taken.
By an unbroken line of decisions of this court, in harmony with the text-writers and the decisions of other States having a constitutional provision similar to our own, the rule governing in ascertaining the damages to the owner of property taken, as in this case, is, that he shall be paid the fair market value of the property at the time of its taking; but no effort has ever been made to fix beforehand all of the things which may go to make up the market value of property, while it has not been so difficult to say that a particular element of damage or loss does not enter into the market value, and should not be included. In other words, what elements properly enter into consideration in' determining the market value of property is necessarily an open question in every case of this character; but it is not necessary to consider that question at length in this case.
IIow far the reasoning in support of the view contended for by counsel would control, where only a part of the owner’s property is taken, and the damage to the residue is also to be ascertained and paid him, or where, as under our present Constitution, it is provided that private property shall not be taken or damaged without just compensation, we are not called upon to consider, as the rights of Hunter are fixed by the provisions of our old Constitution, which was superseded by the new on July 10, 1902.
Counsel would have us disregard the decisions of this court and follow the reasoning of other State courts, conflicting more or less with our own decisions, upholding the rule that the market value of property taken, as in this case, is the guide in ascertaining the just compensation to be paid the owner; but, as we have said, we are unable to find that our decisions are out of harmony with the great weight of authority in this country.
In Richmond &c. R. Co. v. Chamblin & Scott, 100 Va. 401, 41 S. E. 750, it is said: “In determining the value of land appropriated for public purposes, the enquiry must be, What is
With reference to that case, counsel point to the fact that only a text-writer and an encyclopedia are cited in support of the last proposition, but fail to point out wherein the decision itself is out of harmony with the long line of decisions by this court, to which it belongs.
In Richmond & P. R. Co. v. Seaboard &c., Co., 103 Va. 399, 49 S. E. 512, the opinion says: “It is the present actual value of the land, with all its adaptations to general and special uses ,* * * that is to be considered.” And, again, quoting from Lewis on Eminent Domain, “The conclusion from the authorities and reason of the matter, seems to be that witnesses shopld not be allowed to give their opinion as to the value of property for a particular purpose, but should state its market value in view of any purpose to which it is adapted. * * * But, when all the factors and circumstances have been shown, the question at last is, What is it worth in the market?”
Without attempting to review the authorities further, the established rule of this court, recognized and approved by text-writers 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 thereof, and no sufficient reason or authority is brought to our attention which would justify us in departing from that established rule in this case.
It remains, however, to be determined whether or not the court below erred in holding that $5,000 of the award made
The undisputed facts are, that the property taken was erected for the identical business which Hunter was conducting at the time; that the property had been devoted to that business for more than forty years; that Hunter had conducted the business at that stand since January, 1801; that the building was large, strong and thoroughly adapted to storing and handling heavy machinery, such as farming implements, wagons, etc., which was the business being conducted by Hunter; that the alleyway afforded facilities for receiving and shipping stock which could scarcely be duplicated in the city of Richmond; and that the annual profits of Hunter’s business conducted on the property had been from $4,300 to $4,500 until 1809, when the annual profits were $6,000, and there had been a steady growth in the business. A number of leading business men, speaking from experience, testified that no amount less than $25,000 would compensate Hunter for having his property taken from him, and some of them say that they, if in Hunter’s place, would not part Ayith the property for $25,000, and still others fix the value of the property at more than that amount. In other words, they regarded the property, by reason of the uses made of it, its convenience and advantages, and yielding a profit from the business conducted thereon, as above stated, as worth, in the market, the sum of $25,000. It is true, that other witnesses, mainly engaged in the real estate business, do not agree in the views of the witnesses testifying for Hunter, and therefore, do not estimate the market value of the property as high, nor did the commissioners allow Hunter the full amount to Avhich his witnesses, by a consensus of opinion, considered he was entitled.
In Richmond &c. R. Co. v. Chamblin & Scott, supra, the court expressly disclaimed an intention of considering all the elements that go to constitute the value of the property, saying that “the best that can be done is to appoint capable and up
The report of the commissioners in this case did not afford the court any information as to how the amount of the award to Hunter was arrived, at, and, as has been remarked, it was about five years after their report was made, and made in accordance as they testify with the instructions of the court, before the commissioners were called upon to state the grounds of their award, and this, after all vestige of the property condemned had been destroyed and the ground on which Hunter’s business had been conducted, appropriated for railroad purposes, rendering another view of Hunter’s property, as it was when taken, impossible. The testimony of the commissioners as to what were the elements they considered in making up their award is, in the very nature of the case, vague and unsatisfactory, and they in fact, admit that, after that lapse of time, they could not say positively anything, except that they followed
The vagueness and unsatisfactory character of this - testimony, given at so late a day, after they had made their award and filed it with the court, is made all the more apparent when read in connection with the evidence to which we have adverted, going to show that the market value of Hunter’s property, when taken, was at least the amount of the award, without any sort of reference to damage to his trade or loss of profits in his business.
It has been again and again declared by this and other courts, that, in the very nature of things, the finding of the commissioners is entitled to great weight, and is not to be disturbed unless it is shown to be erroneous by clear proof. Richmond & Petersburg R. Co. v. Seaboard &c. R. Co., supra, and authorities cited.
In Cranford Paving Co. v. Baum, 97 Va. 501, 24 S. E., 906, this court said: “When it becomes necessary to ascertain what is just compensation for land taken for public use, as in the present case, the statute directs that the court shall appoint five disinterested freeholders as commissioners to perform this duty, and requires that, in its performance, they shall themselves view the land so taken. The law lays great stress upon the matter of the view, and justly attaches great weight to the report of the commissioners. They are greatly aided, as they were in this case, by the evidence of their own senses. They have the advantage of seeing the land itself which is taken, and judging as to its value. * * * They have, as they also had here, after having their attention especially drawn to the element of damage relied upon, the opportunity to apply the evidence produced before them to the subject of the controversy, and to determine the weight to be given to its several parts. We are without the benefit of their opportunities and of what they saw
In Shoemaker v. United States, 147 U. S., 282, L. Ed., 13 Sup. Ct. 361, the opinion, quoting from Mills on Em. Dom., says: “An appellate court will not interfere with the report of commissioners to correct the amount of damages, except in cases of gross error, showing prejudice or corruption. The commissioners hear the evidence and frequently make their principal evidence out of a view of the premises and this evidence cannot be carried up so as to correct the report as being against the weight of evidence. Hence, for an error in the judgment of commissioners in arriving at the amount of damages, there can be no correction, especially where the evidence is conflicting. Commissioners are not bound by the opinions of experts or by the apparent weight of evidence, but may give their own conclusions.” See also the recent case of Tidewater Ry. Co. v. Cowan, 106 Va. 817, 56 S. E. 819.
While, on the face of the report in this case, which was borne out by'the evidence returned therewith, there appears nothing going to show that any improper elements of damage entered into the award, these commissioners, long after the award, and when the whole matter had gone entirely out of their minds, each undertakes to speak for himself as to what elements of value were considered, although each of them had signed the report at the time it was made. We find nothing in the instructions of the court to justify the conclusion that the commissioners were misled to take into their consideration improper elements of damage.
When testifying from memory, confessedly uncertain by reason of the lapse of time, they, in effect, agree that $5,000 of the award was “for taking a man’s business from him,” but whether this, and other like considerations, had influenced them only in agreeing upon the fair market value of Hunter’s property, or
The established rule that the finding of the commissioners is entitled to great weight, and is not to be disturbed unless it is shown to be erroneous by clear proof, is not to be disregarded or even affected by the mere fact that the evidence relied on to show that the finding is erroneous, is given by the commissioners themselves. The question in such a case is, whether or not the proof can be considered as sufficiently clear and satisfactory to warrant the setting aside of the award of the commissioners, 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, which is taken, and judging as to its value.
Reversed.