124 Va. 65 | Va. | 1918
delivered the opinion of the court.
The judgment brought to our attention by this writ of error was recovered by defendants in error against the Southern Railway Company in a proceeding by notice of motion for judgment.
The facts out of which the litigation arose may be summarized as follows; Defendant set on foot proceedings to condemn so much of plaintiff’s farm of 500 acres, located in Nelson county, as might be necessary to double track its main line over the same as part of a general scheme to double track its entire route from Washington city to Atlanta, Georgia. The commissioners allowed $2,500 for the
The order of confirmation declares: “But this action of the court is without prejudice to the rights of the plaintiffs, if any such they have, to maintain any such suit or action as they may see fit to bring, arising out of the failure of the Southern Railway Company to construct a crossing at the point designated by the report * * * in the condemnation proceedings of Southern Railway Company v. Edmonia Powell and others.” Whereupon, plaintiffs instituted against defendant the proceedings which resulted in the recovery of the judgment now under review.
The entire fabric of the defense to plaintiffs’ motion in
The authority for the action of the commissioners will be found in the “eminent domain act,” Code 1904, section 1105-f, clause 20.
“If the company and the person whose land, or any interest or estate therein, is being condemned under the provisions of this act shall, before the commissioners make their report, enter into any contract in relation to the building, operating, or maintaining the proposed work, or in relation to fencing, culverts, depots, stations, crossings, sidings, cattle guards, damage from fire, injury to or destruction of property, real or personal, or like matters, it shall be the duty of the said commissioners, if said contract is brought to their attention by the parties thereto, to set forth such contract in their report, to be considered and ¡acted on by the court as a part of the said report; and if the said report be confirmed, and the land, or the interest or estate therein, be taken, the said contract shall thereafter run as a covenant with the said land, or with the interest or estate therein, so taken.”
In Shenandoah Valley R. Co. v. Robinson, 82 Va. 542, it was held, where the company agreed to erect a depot on the land, and, in consequence, secured a lower assessment for the land taken for its purposes, that a suit in equity would not lie to set aside the order confirming the report of the commissioners, because the landowner had a complete and adequate remedy at law to recover damages in such case.
The evidence in the present case showed that the commissioners would have awarded larger damages, but for the understanding with respect to the construction of the crossing and the removal of the tobacco house.
Our attention is drawn to the case of Swann v. Washington-Southern R. Co., 108 Va. 282, 61 S. E. 750, as sustaining the contention that the clause in the commissioners’ report involved in this case should be rejected as surplus-age. But an examination of that case will show that it is essentially different from the case in judgment. That was a proceeding to condemn certain easements of rights of way which plaintiff in error owned over the land of the defendant in error.- The commissioners, as they were ordered to do, fixed the amount of damages to the landowner for the property condemned at a given sum; and then, on their own initiative, made an alternative award of a less sum, provided the party seeking to condemn would do certain things, to which the owner was opposed, as shown by exception to the report. In these circumstances, the alternative assessment was stricken out as surplusage.
We are of opinion that the judgment complained of is plainly right and must be affirmed.
Affirmed.