126 Va. 283 | Va. | 1919
after making the foregoing statement, delivered the following opinion of the court:
The questions presented for our decision by the assignments of error in the above entitled cases will be disposed of in their order as stated below:
The change of grade of the public road, and the consequential damages alleged to have been occasioned, occurred in 1918. There was then no provision of statute for the assessment of such damages by condemnation proceedings. See subsecs. 2 and 3, sec. 944-a, 3 Pollard’s Code, 1910, as compared with sec. 2, Acts 1904, p. 191 (Code 1904, §944a). The absence of legislation on the subject does not, however, affect the question under consideration, for, as decided by this court in Swift & Co. v. Newport News, 105 Va. 108, at p. 115, 52 S. E. 821, 3 L. R. A. (N. S.) 404, section 58 aforesaid of the Constitution “is self-executing.”
In the case of County of Chester v. Brewer, 117 Pa. 647 12 Atl. 577, 2 Am. St. Rep. 713, the provision of the Con
See to the same effect Dallas County v. Dillard, 156 Ala. 354, 47 So. 135, 18 L. R, A. (N. S.) 884, where a constitutional provision in the same language as that of the Pennsylvania Constitution above quoted was involved, and where the county was held liable for consequential damages to abutting property due to a change of grade of a public road. And in that case also there was no statute on the subject supplementing the constitutional provision under consideration.
In Layman v. Beeler, 113 Ky. 221, 67 S. W. 995. the constitutional provision involved was as follows: “Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or de
It seems to us that the provision of section 58 of the Virginia Constitution is more plainly universal in its intendment of application, as evidenced by the language employed, than is true of the constitutional language construed in the three cases next above mentioned. There the Constitutions in question descended into the express designation of “corporations” as well as “individuals” as being liable to make the compensation in question. The Virginia Constitution is not obscured in its meaning by any need of considering whether counties are included in any particular classes which are designated. The very language employed at once announces that it is not any particular classes of individuals or corporations against which the constitutional provision is directed, but that it is adopted as a guaranty in favor of all private property by whatsoever instrumentality taken “or damaged” for public uses. And the same is true of the constitutional provisions involved in the cases to which we shall now refer.
In Tyler v. Tehama County 109 Cal. 618, 42 Pac. 240, the later constitutional provision in question was as fol
The court in the case last cited held that such case fell within the same principle as if the bridge had been constructed on the line of and within the right of way of the public road as previously established, because of the fact that the bridge was accepted by the board of supervisors after its completion, notwithstanding its location aforesaid.
Concerning the absence in the statute law of any express provision giving a remedy to one whose property is damaged for public use without compensation, and referring to the amendment of the former Constitution by the addition of the words “or damaged” included in section 58 aforesaid of the present Constitution of Virginia, the following is said in Swift & Co. v. Newport News, supra, 105 Va. at pp. 114-115, 52 S. E. 821, 824 (3 L. R. A. [N. S.] 404) : “It was the design of the amendment of our Constitution under consideration to remove an existing mischief, viz: the damaging of private property for public use without just compensation, and a constitutional provision should never be construed as dependent for its efficiency and operation upon legislative will. 6 A. & E. Ency. L. 913, and authorities cited. So that when the provision of a Constitution, as ours does * * * forbids damage to
We are of opinion, therefore, that the provision of section 58 of our Constitution aforesaid has expressly conferred upon all private owners of property the right to “just compensation” upon its being “damaged” for public use by the action of the counties under the various statutes authorizing such action in so far as the manner of doing or letting the work to contract, etc., is concerned.
We come now to the questions presented to us for decision arising upon the giving and refusal of instructions. These instructions appear in the statement preceding this opinion.
3. The objection of the defendant county to the instruction No. 1, given at the instance of the plaintiffs, is merely the same as that which has been above considered and disposed of, namely, in substance, that the county could not be sued in cases of the character of those before us.
4. The defendant county complains of the refusal of the trial court to give instructions A, B, C, D, and E.
It may be difficult, if not impossible, to find a satisfactory distinction in principle between benefits due to street or road improvements which are conferred on abutting land and benefits conferred on land very near by but not actually abutting on the street or road which is improved. And the rule laid down in the Swift & Co. Case may lead in principle to the conclusion that all benefits which are conferred on the land by the improvement of a street or public road should be taken into consideration in ascer
Much, indeed, may be said in favor of the rule established in West Virginia, to the effect that the true measure of damages to abutting real estate by the change of grade of a street is the difference between the market value of the property immediately before and its market value immediately after the street improvement, less any special or peculiar benefits to the property due to the'improvement, but leaving out of consideration such general benefits as accrue to it in common with other property similarly situated, as well as all other general benefits due to the improvement which will be enjoyed by the community in general. Rutherford v. Williamson, 70 W. Va. 402, 74 S. E. 682; Howman v. Bluefield, 70 W. Va. 129, 73 S. E. 296; 10 Am. & Eng. Ency. L. (2d ed.), p. 1177. And it may be that upon further consideration the rule laid down in Swift & Co. v. Newport News might be modified to some extent. But whether this should or should not be done is not a question presented for our determination in the cases before us. It is indeed urged before us by counsel for the plaintiffs that instruction No. 2, for the reasons above indicated, is more favorable to the defendant county than it should have been, but no cross-assignment of error is made, and we are not asked for plaintiffs to set aside the verdicts on that ground. And the defendant county having asked for this instruction and obtained it, cannot be heard to'
What is said above disposes of all the questions presented to.us for decision in these cases and the result is that we shall affirm the judgments complained of.
In view of the importance of the subject, however, both to the counties of the State and to the owners of property who may be affected, we feel that we should add the following :
Affirmed.