Pamplin v. Norfolk & Western Railway Co.

124 Va. 254 | Va. | 1919

Sims, J:,

after making the above statement, delivered the following opinion of the court:

The assignments of error present the questions for decision which will be passed upon in their order, as stated below:

[1] 1. Does the consent of a board of supervisors, under subsection 8 of section 1294-b (1 Pollard’s Code, 1904), to a change of location of a public road by a railroad company shield the latter from liability for such damages, if any, as such change may cause to the owner or occupant of any lands?

This question must be answered in the negative. Such statute expressly provides that the company exercising such privileges “shall make proper compensation for such damage.”

Indeed, we do not understand that the railroad company disputes the correctness of the conclusion just stated, although its plea No. 2 (quoted in the above statement), filed in the case by leave of court over the objection of -the plaintiff, raised such question in the trial court, and one of the assignments of error presents it to us for decision.

The positions of the railroad company before us on this subject áre, in substance, that while the plaintiff, as an original proposition, was entitled to demand and receive of it just compensation for such damages, that compensation therefor was in fact included (along with compensation for many other claims of damages) in the consideration which the railroad company paid the plaintiff for her deea to it (quoted in the above statement), and that such deed will be construed to have released all claim of the plaintiff-for such damages; or that if this be not so, that such damages were either included in the $150 item of award of damages made by the commissioners in the Spencer land condemnation proceeding (set forth in the above statement) , or that such award operated as an estoppel against any subsequent claim for such damages, and that all claims of the plaintiff therefor are barred by such proceeding by reason of the eminent domain statute law on the subject, hereinbelow more specifically set forth.

These positions will be hereinafter dealt with.-

[2] 2. Did the deed above mentioned, when properly construed, operate as a release by the plaintiff of the claims of damages made in her original and amended declaration in this case, which were due to the construction of the railroad company, on lot A, of the embankment for its railroad and the operation of its trains thereon ?

This question must be answered in the affirmative.

A summarized statement of such claims of damages will appear from the statement preceding this opinion.

It is well settled that if it be a fact that the land conveyed by the deed under consideration (which is shown on the diagram above as “lot A”) was conveyed to the railroad company as a right of way for its proposed railroad, the deed vested in the railroad company the same rights as though lot A had been acquired for that purpose by condemnation.

“The conveyance will be held to be a release of all damages which would be presumed to be included in the award of damages if the property had been condemned. The grantor, therefore, cannot recover for any damages to the remainder of his land which result from a proper construction, use and operation of works upon the property conveyed.” 2 Lewis on Em. Dom. (3d ed.), sec. 474, citing numerous authorities; Cassidy v. Old Colony R. R., 141 Mass. 174, 5 N. E. 142; Roushlange v. Chicago, etc., R. Co., 115 Ind. 106, 17 N. E. 198; Hortsman v. Covington, etc., R. Co., 18 B. Mon. (Ky.) 219.

[3] This rule covers all damages to the residue of the tract where a part of a tract is taken by condemnation proceedings, or is conveyed, for a right of way for a railroad, which are due to the construction and operation of the railroad on a grade different from the natural surface of the land, because of the erection of an embankment on the right of way on such part of- the land which does not physically impinge upon or upheave the land adjacent to the right of way, or deprive it of lateral soil support, or violate the riparian or surface-water rights of the owner thereof; unless the railroad company has limited itself to a particular grade or method of construction and operation, or the damages have been assessed, in the case of condemnation, or paid, in the case of a purchase and conveyance,, upon the basis of such limitation. In the absence of such limitation, all damages past, present and future to the residue of such real estate due to such construction and operation are presumed to have been included in the award of damages in a condemnation proceeding, and in the consideration paid therefor in case of a conveyance. 2 Lewis on Em. Dom., sec. 712-714, 821, 830, 110-114, 818, 820, 824; Cassidy v. Old Colony R. Co., 141 Mass. 174, 5 N. E. 142; Brainard v. Clapp, 10 Cush. (Mass.) 6, 57 Am. Dec. 74, in which the opinion of the court was delivered by Chief Justice Shaw; Tinker v. City of Rockford, 137 Ill. 123, 28 N. E. 573; Costigan v. Penn. R. Co., 54 N. J. L. 233, 23 Atl. 810. The case of Fisher v. Seaboard Air Line Ry., 102 Va. 363, 46 S. E. 381, 1 Ann. Cas. 622, rests upon the same presumption.

[4] It is true that for a number of years there has been a general statute in Virginia which, in condemnation proceedings, requires all companies exercising the right of eminent domain to file with the petition a plat of the survey of the right of way proposed to be taken, with a profile-showing the cuts and fills, etc., which enforces upon such-companies a fixing of a limitation upon the grade line differing from that of the natural surface of the land to which they propose to construct their works and upon which they propose to operate their trains. Such limitation forms a basis for the assessment of damages by the commissioners in the condemnation proceeding, and such a company, if it afterward desires to change or adopt a substantially different grade, must obtain authority therefor, either by purchase or by further condemnation proceedings; otherwise, it will, in subsequent action therefor, be liable for damages occasioned to property owners affected by such change of grade of the construction or operation thereon of its works.

[5] A railroad company, in the absence of such statute or of a similar requirement in its charter, at the time of the location and acquisition of the right of way, on a parcel of land which is a part of a larger tract, having acquired a right of- way of a certain width by condemnation proceedings, is, as between it and the owner of the residue of such tract of land, and those in privity of estate with the latter, bound by no limitation upon the height to which it may construct its works thereon and operate the same, and change such height of construction and operation thereon, of its trains from time to time, except such limitation as may arise from its duty to keep within the reasonable requirements of the discharge of its duties as a public service corporation and the further requirement of law that such construction and operation shall be done in a reasonably skillful and proper manner.

[6] There being no statute enforcing upon railroad companies a fixing of a limitation upon the construction and operation of its works prior to its purchase of a right of way, unless it voluntarily does so, a conveyance to it of land for its right of way will operate to confer upon it, as between it and the grantor and those in privity of estate with the latter, as aforesaid, the unlimited right of construction and operation of its works upon the land conveyed, at such height from the natural surface of the ground as its requirements aforesaid and reasonably skillful manner of construction and operation from time to time may dictate.

Some of the decisions hold, as indicated above, but not •without conflict of authority, that, notwithstanding a condemnation or conveyance of a right of way for a railroad company, unlimited as to the right of construction of the railroad thereon at any grade at variance with the natural surface of the ground, there is nevertheless a limitation imposed upon the railroad company’s right of construction of its works in certain particulars, which is the same as that upon the rights of ordinary proprietors of land, namely, that the railroad company cannot, any more than an ordinary owner of land, by construction of works upon its right of way, do any actionable injury to an adjacent landowner by depriving the soil of the adjacent land of support, or by interfering with the flow of running streams thereon, or with the surface-water rights of the adjacent landowner, without liability to him for damages, in addition to those awarded in the condemnation proceedings, or covered by a consideration for a conveyance. See 2 Lewis on Em. Dom., supra, especially secs. 110-114, 818, 820, 824, 826. But since there is no allegation in the pleadings of the plaintiff in the instant case of any injuries caused by deprivation of lateral soil support to her land adjacent to the right of way of the railroad company, nor of interference with any riparian water rights in any flowing stream thereon; and since there is no proof in the case of any violation of surface-water rights, although there is, as noted in the above statement of the case, an allegation in the declaration of the violation of the latter rights of the plaintiff on her adjacent land, we are relieved of the duty of entering upon any consideration of the precise limits of such rights as are mentioned in this paragraph, or of how far they may furnish exceptions to the rule we have under consideration as to the effect of a deed to a railroad company conveying to it a right of way for its railroad.

But the plaintiff contends that it cannot be said that the deed in the instant case was for a right of way for the railroad company, that it is but an ordinary conveyance to it as the grantee of land in fee, with a description of the boundaries thereof, and conferred no other rights upon the railroad company with respect to the use thereof than any individual grantee has, namely, to hold and use the land subject to the law applicable to adjoining proprietors of land and of the maxim sic utere tuo ut alienum, non laedas, and the following authorities are cited to sustain such position, viz: Pettit v. Jamestown, etc., R. Co. 222 Pa. 490, 71 Atl. 1048, 21 L. R. A. (N. S.) 322-3; Lewis on Em. Dom., supra (sec. 820); Beaty v. Baltimore & Ohio R. R. Co., 6 W. Va. 391.

In the Pettit Case cited, the deed was to an individual as “trustee,” not stating for whom the grantee was “trustee,” so that it did not appear on the face of the deed that the conveyance was to a railroad company. Further, in that case, the injury in question consisted of the removal of the lateral support of the soil of plaintiff’s land by work done by defendant on its adjacent right of way conveyed by the deed,, as to which subject an exceptional rule applies in some jurisdictions, as above noted. Lateral soil support and interference with riparian rights in running streams of water and with surface-water rights of an adjoining landowner; as furnishing exceptions to the general rule applicable to the effect of the award of damages in a condemnation proceeding, and to the construction of deeds of conveyance of land for the right of way aforesaid, are above considered, and is the subject of what is said in section 820 of Lewis on Eminent Domain, cited. In Beaty v. B. & O. R. R. Co., cited, the injury and resultant damage complained of concerned the water rights of the plaintiff, and was caused by the failure of the railroad company to make or provide a sufficient drain to carry off the water through an embankment built on its right of way. As above noted, an exceptional rule obtains in some jurisdictions on that subject, and there are considerations as to when such exceptional rule is operative, or as to whether a given case does or does not fall within such exception, which are immaterial to the instant case and need not be entered into here. However, in that case itself, the deed conveyed a parcel of land in fee simple without any condition, merely referring to the proposed line of railroad in the designation of - the boundaries of the land conveyed (as does the deed in the instant case, if the profile therewith be left out of view) ; and the court, in its opinion, said: “Although no purpose is expressed in the deed, the company acquired this land, it may well be inferred, for the purpose of constructing its road upon it.”

[7] So, in the instant case, in view of the fact that the deed is made directly to the railroad company as grantee, in view also of what is stated in the deed on the subject of the line of railroad which was not then in existence, and of what is shown on the “plan” made a part of the deed (which “plan” appears in the statement preceding this opinion), even if we left out of consideration the profile shown on such “plan” which evidenced that the railroad would be constructed on the land conveyed on an embankment, as it was afterwards constructed, we cannot escape the conclusion that it appears on the face of the deed that the conveyance was of a right of way for the proposed railroad of the grantee; especially in view also of the statute law of this State,- which requires a railroad company to purchase the land for its right of way, if it can agree with its owner upon the price and terms therefor (which includes damages to the residue of the land of the owner where only a part of a tract is taken for the- right of way), and does not allow the railroad company to proceed by condemnation proceeding, unless it cannot so agree with such owner, or unless title to such land cannot be obtained by conveyance from- the owner.

[8] That a conveyance is of the fee has no significance upon the -question of whether it is a right of way for a railroad, since under our eminent domain statute the company Obtains title to its right of way in fee by condemnation proceedings.

The general rule applicable to the change of grade of streets, namely, that damages occasioned by such change are not in general presumed to have been included in a prior condemnation proceeding, or to have been released by a prior conveyance of a right of way for a street, is urged upon us for plaintiff as in conflict with the view of the law which we have above taken. The case of Harman v. City of Bluefield, 70 W. Va. 129, 73 S. E. 297, is cited and especially relied oh for plaintiff upon this point. An examination of such case and of other authorities on this subject (see 2 Lewis on Em. Dom., secs. 712-714, 825, and authorities there cited) discloses that where no limitation is placed upon the grade of the street prior to or at the time of the condemnation of the right of w’ay therefor, by plans establishing a grade line or otherwise, damages will be awarded in the condemnation proceeding, once for all, to cover the right of the municipality to establish any grade it may see fit. And the general rule adverted to in the beginning of this paragraph obtains only where a prior limitation has been placed upon the grade of the street, either by a formal establishment of grade lines, or by the use of a road or street way of a certain grade, which it was not contemplated at the time of such use would ever be changed. Hence, such general rule cannot be regarded as at all in conflict with the view which we have above taken of the law.

[9] It should also be noted that it is urged upon our consideration for plaintiff that the deed in the instant case was drawn by the grantee, or its agents, and that the rule as to such a deed is that “any doubt as to its true meaning should be solved adversely to the company,” citing Lockwood v. Ohio R. R. Co., 103 Fed. 243, 43 C. C. A. 202. Such rule as applied in that case, however, had to do merely with the meaning of ambiguous language in the deed, and cannot at all affect a rule of law applicable to the proper construction of a deed about the language of which there is no ambiguity. Hence, we think there is no merit in such position.

[10] The foregoing has proceeded upon the idea that the profile shown on the “plan” which is a part of the deed in the instant case, conveyed no meaning to the plaintiff, which is the position taken for the plaintiff in the case. We cannot concur in this view, however. We think that the plaintiff is as much bound by and affected with constructive knowledge of what is shown on such “plan” as she is with knowledge of any other contents of the deed. The “plan” aforesaid is expressly made a part of the deed by the language of the deed itself. This being so, the conclusion above reached, as to the release of damages which the law will 'imply from the execution and delivery of said deed, is strengthened.

Coming now to the application of the above conclusions of law to the injuries complained of by the plaintiff in the instant case, as due to the construction by the railroad company of the embankment on lot A, and the operation of its trains thereon (which are set forth in detail in the above statement of the case), and resultant damages sought to be recovered in the instant case therefor, we are of opinion that the deed aforesaid operated as a release of all of such claims of damages of which there is any evidence whatever in the record. We will here mention these matters and our conclusions thereon seriatim:

(a) The embankment constructed on lot A occupied the old location of the Darlington Heights road to its center, and its construction, so as to be used as a part of the railroad, necessarily obstructed the whole of that road, and that deprived the plaintiff of the front entrance to her dwelling and dwelling-house land from such road.

(b) Any expense to which the plaintiff has been (or may be) put in making alterations and repairs to such front entrance has the same cause.

(c) The destruction of the privacy of the plaintiff’s home has the same cause.

The same is true of:

(d) The trash, dust and dirt finding easy access into said dwelling; of (f) the detraction from the appearance of the dwelling house and dwelling-house land; and of (g) the nuisance, resulting from the jarring of the ground, shaking the dwelling house and the noise, smoke and dust emitted by passing trains on said-embankment, whereby the walls, windows, and doors of the dwelling are alleged to have been cracked, displaced and broken and the air in and about the said premises has been so polluted as to sensibly impair the enjoyment thereof and the ordinary comfort of human existence therein, etc., as alleged—so far as there is any evidence in the case tending to show such injuries, or any of them.

As above noted, there is no evidence in the case tending to prove the allegation mentioned above under the heading (e), with respect to the collection of water and its retention upon the dwelling-house land, causing it to soak, percolate and flow through and into the whole of such land and into and under the dwelling house, causing to become and be permanently damp and wet, hence, no further mention need be made of that matter.

As to the allegations of the first count of the original declaration of the additional injuries of the deprivation of the plaintiff of the use of her front yard and front porch:

There is no evidence in the case of any deprivation of use of the front yard or porch. The only evidence of deprivation of use of any entrance to the front of the dwelling-house land (except that afforded by the old location of the Darlington Heights road, which was obstructed and necessarily made impassible by the construction of the embankment, on lot A and its use as a part of the line of railroad constructed thereon, as aforesaid, is to the effect that a front driveway was obstructed, which entered the dwelling-house land from the Darlington Heights road by a gate located on the north side of the front yard (which gate was on the eastern line of lot A); but that was obstructed, and necessarily so, by the embankment constructed on lot A.

[11] 3. Did the deed above mentioned operate as a release by the plaintiff of her claims of damages which were not due to the construction by the railroad company on lot A of the embankment for its railroad, or to the operation of its trains thereover; but were due to the construction or operation of the works of the railroad company on lot B, of the embankment, undergrade crossing, etc., mentioned in and shown on the diagram with the statement preceding this opinion?

This question must be answered in the negative.

The rule is well settled that while an award of damages in a condemnation proceeding to take a part of a tract of land will be presumed to include damages to the residue of that tract, due to the construction and operation on the part of the land taken, as above stated, such award will not be presumed to include other damages to such residue of land due to the construction and operation of the company’s works on a different, or on part of a different tract of land not involved in such condemnation proceeding. And the same rule applies to deeds of conveyance of a right of way for a railroad. Lewis on Em. Dom., sec. 822; Alabama, etc., R. Co. v. Williams, 92 Ala. 277, 9 So. 203; Tinker v. City of Rockford, supra (137 Ill. 123, 28 N. E. 573); Eaton v. B. C., etc., R. Co., 51 N. H. 504, 12 Am. Rep. 147; Delaware, etc., Canal Co. v. Lee, 22 N. J. Law, 243; St. Louis, etc., R. Co. v. Harris, 47 Ark. 340, 1 S. W. 609.

On this subject Lewis on Em. Domain says, in section 822, cited: “* * * If parts of black acre and white acre are taken, and if the works as constructed upon black acre produce damage to white acre, then there is no presumption that these were included in the assessment to the proprietor of white acre, and he may recover therefor as though no land of his had been taken for the work.” (Citing numerous cases.) The same section of this work also states that, “* * when parts of certain lots were taken for a railroad and damages assessed therefor, and the parts not taken were damaged by the railroad crossing and obstructing a street upon which the lots abutted at some distance from the lots, it was held that the latter damages were not included in the assessment and that an action would lie to recover the same. * * * Many of the cases which have been cited are where the plaintiff had conveyed or released the part appropriated, but the effect of a conveyance or release as to future damages is the same as a condemnation.”

It is said on this subject in the opinion of the court in the case of Tinker v. City of Rockford, supra (137 Ill. 123, 28 N. E. 573), that the principle involved is “that the deed of land for right of way of a railroad company has the same effect, as between the parties, that a condemnation under the law of eminent domain for that purpose would have. But it must be obvious that this principle can have no application to anything not included within the grant— as, for instance, damages caused by acts of the railroad company upon other lands than those to which the grant relates—for as between the grant and damages resulting from such acts, it is impossible that there can be the relation of cause and effect.”

The case of Forest View Land Co. v. Atlantic Coast Line R. Co., 120 Va. 308, 91 S. E. 198, is relied on for the railroad company as establishing a different rule in this State. In that case the deed involved contained an express release of claims for damages, which was the same in its terms as the release of damages implied by law in a deed to a railroad company for a right of way where the deed is silent on the subject of such release. The landowner in that case did not contest the effect of the release upon any ground in conflict with the views above expressed, but contended that the works of the railroad company were not in fact constructed on the land conveyed. We rejected this contention and held that the works of the railroad company were on the land conveyed, within the meaning of the language of the release, when construed in the light of all the facts and circumstances in the case, including particularly the knowledge with which the grantors in the deed were charged as to the unified and entire plan of the company. It follows, therefore, that the Forest View Land Co. case is not controlling as authority in the case now before us.

[12,13] Of course, the rule last mentioned must be reasonably applied.' If the acts of the railroad company done on lot B were inseparably attendant upon those done on lot A, and have not caused any additional injuries to the dwelling-house land or dwelling thereon, than have been caused by the acts of the railroad company on lot A, then, manifestly, the claim that such injuries were in part caused by acts of the railroad company on lot B would not avail the plaintiff to obviate the aforesaid bar of the deed. Only one satisfaction can be demanded for the same damages, although they may be due to more than one contributing cause. However, the deed does not bar the plaintiff’s right to recover damages, due to the acts of the railroad company on lot B, which are additional to or are different from the damages due to the acts of the railroad company on lot A. '

It may be true that little, if any, of the injuries complained of in the instant case as due to the construction and operation of the railroad company’s works on lot B were different or in addition to those caused by the same character of construction and operation on the adjacent lot A. But this is a question for the jury under proper instructions and cannot be properly decided by us. Such question was not submitted to the jury in the court below, but was withdra'wii from the jury as a result of the instructions given as aforesaid.

[14] 4. Did the deed above mentioned operate as a release by the plaintiff of the claim of damages due to the change of grade by the railroad company of the PamplinCharlotte C. H. public road, above mentioned, along the south side of the dwelling-house land ?

The injury and resulting damage which such change of grade is alleged to have occasioned is set out in the above statement of the case.

Such act of the railroad company was not done on the land granted by the deed, but upon other land, and the injury alleged was different from any of those alleged to have been occasioned by the acts of the railroad company upon the land granted. Hence, for the reasons stated and upon the authorities cited in the consideration of the third question above, we are of opinion that this fourth question, now under consideration, must be answered in the negative.

[15] 5. Did the Spencer land condemnation proceedings set forth in the statement preceding this opinion operate as an estoppel of or bar the plaintiff’s action in the instant case for the recovery of the alleged damages to her dwelling-house land and dwelling thereon alleged to have- been occasioned by reason of the construction by the railroad company of its works on the embankment, under-grade crossing, etc., on lot B, and its subsequent operation of its trains thereon, and by reason also of the changing of the grade of the Pamplin-Charlotte C. H. public road, as also set forth in the said statement?

This question will be decided by the determination of whether the statute hereinafter quoted purports to bar the plaintiff’s action in the instant case. We shall, therefore, confine our consideration of the subject in hand to that question.

The railroad company relies on the statute contained in subsection 23 of section 1105-f (the eminent domain statute, 1 Pollard’s Code, 1904), as a bar to the plaintiff’s action for the damages now in question, which, so far as material, is as follows:

“Who may be a party to the proceedings; when right of action will abate.

“(23) Any person * * * who claims that he will'be damaged in his property by reason of the location, construction * * * of the line * * * maintenance, or proper and reasonable operation of any works in this act mentioned * * * for public use, may appear before the commissioners appointed as in this act provided, at the time and place provided for their meeting, make himself a party to the proceedings and have his rights passed upon by the commissioners, and his damages, if any, ascertained* allowed and paid as in this act hereinbefore provided for the taking of land, material, water or other things. But after the notice required by this act, and the judgment of the court upon the report of the commissioners, and the payment to the persons therein named, or into court, for their use, of the sum or sums of money ascertained by such report, no action shall be brought by any person, whether he appeared or not, to recover compensation for * * * damages considered and passed upon by the commissioners, resulting * * * from the location, construction * * * of the line or * * * maintenance or proper and reasonable operation of any such works.” (Italics supplied.)

We are of opinion that under such statute the plaintiff might have appeared in the Spencer land condemnation proceeding and have had her right to the damages now under consideration “passed upon by the commissioners” acting therein. But the test of whether the plaintiff is or is not estopped, or is or is not barred from maintaining a subsequent action for the damages we have under consideration, is not the application of the doctrine of res adjudicates, but a test prescribed by the statute just quoted. Under that statute the question is not one of estoppel, but one of whether the action is or is not barred. And the test of the latter is the same, as we shall presently point out in more detail, whether the plaintiff “appeared or not” in such condemnation proceeding. It becomes unnecessary, therefore, to consider the questions raised in the record as to whether the plaintiff, by the appearance of her attorney before the commissioners, became then a party to the proceeding, or as to what was the effect upon her said rights of being a party to the subsequent proceeding making distribution of the damages awarded as aforesaid.

Further: It will be observed from a reading of the statute that it provides, in substance, that if certain prerequisites as to notice, etc., set forth in the statute, are fulfilled, then all persons, whether they have “appeared” in the proceeding “or not,” are thereafter barred from bringing any action to recover compensation for the “damages considered and passed upon by the commissioners” in such proceeding, but only such damages as have been so considered and passed upon are thereby barred of future recovery.

The record furnished by the commissioners’ report in the Spencer land condemnation proceedings is relied on by the railroad company to evidence the fact that the damages to plaintiff’s dwelling-house land and dwelling house thereon. sought to be recovered in this action, were “considered and passed upon by the commissioners” in such condemnation proceeding.

If the commissioners’ report does show this, with the certainty which the law requires in such case, in the absence of fraud (and none is alleged in the instant case) the report is conclusive of that fact in a collateral proceeding ■(such as this is)-.

The only portion of the commissioners’ report aforesaid which can be relied on to establish the fact aforesaid is the following:

“We are of opinion, and do ascertain, that f-or the said part” (of the Spencer land) “and for other property so taken, $1,350.00 will be a just compensation, and the damages to the adjacent and other property of said tenants or owners” (of the Spencer land) “and to the other property of other persons, who will be damaged in their property by reason of the construction and operation of the works of said company * * * are. $150.00.”

It will be observed that this on its face presents a case of a report awarding, and not denying damages. First, so considering the report—

The precise question before us is, does it appear from such language of such report with any reasonable degree of certainty that a part of the $150 damages awarded was awarded as damages to the plaintiff’s property last above mentioned ?

It is apparent that some of the language employed in reporting the damages considered and passed upon by the commissioners was unquestionably copied, and did not report an actual consideration of and passing upon damages. For instance, the report states that the $1,350 was ascertained as a just compensation not alone for the “said part” of the Spencer tract “so taken,” which was the fact as disclosed by the record of the proceeding set forth in the above statement, but that such $1,350 was also, “for the other property so taken.” There was no such other property taken. The proceedings being statutory, the plain mandate of subsections 4 and 8 of said eminent domain statute, requiring a description of any “other property” proposed to be taken to be contained in the petition and report, could not be ignored as a prerequisite to such taking. No such description was contained in such proceedings under consideration, and no such property was even sought to be taken in such proceeding.

Again: The report states that the commissioners ascertained that “the damages to the adjacent and other property of said tenants or owners, and to the property of other persons who will be damaged in their property * * * are $150.00.” Now, there was no “other property of said tenants or owners” (meaning the tenants or owners of the Spencer land), as to which damages could have been “considered and passed upon” by the commissioners, except the residue of the Spencer tract adjacent to the part of that tract “taken,” as shown by the record. This being so, it seems manifest to us that the commissioners were using some form for their report which, in the particulars mentioned, probably copied the language of the eminent domain statute, or of the petition of the railroad company in the proceedings, or of the order of court appointing them, quoted in the statement preceding this opinion, and that such language was inapplicable to and did not report the actual action of the commissioners in such particulars. That no such action occurred is disclosed by the face of the record, such report notwithstanding, when the report is read in the light of the whole record in the condemnation proceeding.

How, then, stands the question of whether the commissioners, as a matter of fact, did consider and pass upon the damages to the dwelling-house land and dwelling thereon of the plaintiff? The only language in the report which can be relied on to show such fact is the sentence, included in the above quotation, in which the commissioners’ report $150 as the “damages to the adjacent and other property of said tenants and owners, and to the property of other persons who will be damaged in their property. * * *” _^s we have pointed out, no portion of the $150 w'as in fact awarded as damages to “other property of said tenants or owners.” Can it be said from the report with any reasonable certainty that any portion of the $150 was awarded as damages “to the property of other persons * * *?” Is it not equally probable that the language of the report which is relied on by the railroad company to have the effect of making the commissioners so report, was copied, as aforesaid, and no more reported or was intended to report actual action of the commissioners than did the other language in the same sentence which, as we have just seen, was merely formal and was probably so copied. To say the least of the language under consideration, as was in part said in the case of C. & O. Canal Co. v. Hoye, 2 Gratt. (43 Va.) 514, of a similar ambiguity in a report of commissioners in a condemnation proceeding: “It is probable the words * * * were copied from the terms of the act” (or from the papers in the condemnation proceeding aforesaid) ; “and that no damages were allowed for this reason. Their finding is uncertain. * * *”

It is true that the case last cited is not one in which the report of the commissioners was drawn in question in a collateral proceeding, as in the instant case, but it is helpful as disclosing the view taken by this court of the definiteness and certainty which should characterize such reports and of the. principle involved.

But wholly aside from the matters of uncertainty aforementioned, the report of the commissioners in the instant case, in the language above quoted, relating to the award of the $150 damages, contains another serious and, as we shall presently see, fatal ambiguity, even if the view be taken of it that the commissioners meant to report any damages to “other property of other persons,” or that they had “considered and passed upon” the damages now sought to »e recovered by the plaintiff, and had allowed or denied an award of anything as such damages. The report upon such view of it, either awards the $150 damages to three separate, different and distinct properties, to-wit, (1) the adjacent Spencer land, being the residue of the Spencer tract not taken; (2) other property of the tenants or owners of the Spencer land, and (3) “to the other property of other persons,” or it awards such damages to the adjacent Spencer land and, denies any damages to the other property of the tenants or owners of the Spencer land and “to the other property of other persons.”

What “other property” and what “other persons” are meant? It is impossible to determine these questions from the report. It does not say all other property, or all other persons.. (We should perhaps say in passing, however, that we do not mean to hold that the use of the word “all” in this connection would have removed the ambiguity under consideration.) For aught that the report contains, the commissioners may have considered and passed upon the damages to the property of A and B, or any other two or more persons, and never considered the damages to the property of the plaintiff last above mentioned. The only fact which it could be claimed that the report evidences as to what damages “to other property of other persons” the commissioners considered and passed upon, is that they awarded a part of the $150 as damages, or denied the award of any damages to the property of other persons (in the plural number), the persons being unnamed and the property otherwise unidentified. Such a report, manifestly, supplies no record evidencing that damages to any particular property of any person, other than the Spencer property, were considered and passed upon by the commissioners, favorably or unfavorably, by being awarded or denied; and clearly it does not show that the damages to the plaintiff’s property under consideration were considered and passed upon by the commissioners by being awarded or denied. That is to say, the commissioners’ report furnishes no evidence whatever on that subject.

[16] It would be easy enough in all cases of condemnation for the commissioners to state in their report specifically what cases they in fact consider on the question of damages and the results of their action, whether in awarding or denying the award of damages, in each case considered, so that when any subsequent suit for damages is instituted the report may be turned to for evidence upon the question of whether such damages have or have not been considered and passed upon in the condemnation proceeding. Such a procedure would be but fair alike to companies exercising the right of eminent domain and to property owners affected. And that the report of the commissioners should measure up to such requirement is, we think, the true intent and meaning of the eminent domain statute aforesaid. Only by such a procedure can such companies be freed from the danger of being vexed with suits for damages which have been awarded and paid, and property owners be relieved from the danger of the effort being made to deprive them of their right to have their bona fide claims of damages in fact passed upon and adjudicated, so that such property right may not be taken away without due process of law by some constructive adjudication which never in truth occurred.

The general rules prevailing on this subject are considered in Chapter XXI of Lewis on Eminent Domain (3d ed.), especially in sections 764, 766 and 767. We refrain, however, at this time from a more specific holding in the premises than that made in the next preceding paragraph, since the decision of the case before us does not require it.

6. There were rulings of the trial court on questions of the admission or exclusion of testimony which are made the subject of assignments of error numbers II and III, on pages 2 and 3 of the printed petition for writ of error in the instant, case, but as they raise no novel questions, we deem it unnecessary to say more of them than that we are of opinion that there was no error in such rulings of the court below.

7. There were instructions asked for by the plaintiff which were refused by the trial court, which are not set forth in the statement of the case preceding this opinion as they do not raise any questions upon the facts of this case not otherwise raised in the record. It is deemed sufficient to say of such instructions that some of them are in conflict with the views above expressed and as a whole they are not so framed as to be applicable on a new trial of the case in accordance with this opinion.

For the reasons stated above, we are of opinion to set aside the verdict and judgment under review and award the plaintiff a new trial, to be had, if she is so advised, not in conflict with the views expressed in this opinion.

Reversed.