Swann v. Washington-Southern Railway Co.

108 Va. 282 | Va. | 1908

Whittle, J.,

delivered the opinion of the court.

Sarah S. Swann and Mary M. Swann bring this case here on writ of error to review the judgment of the Circuit Oourt of Alexandria county, whereby certain easements of rights of way belonging to the plaintiffs in error over the land of the defendant in error, the Washington-Southern Railway Company, were condemned for the use of the company.

The assignments of error are, for the most part, of a character to be affected by extraneous evidence, and not having been made the subject of exception, or bill of exception, in the trial court, cannot, upon familiar principles, be availed of on appeal. Lewis v. Washington, 5 Gratt. 270; Muir v. Faulkner, 10 Gratt. 12; Mitchell v. Thornton, 21 Gratt. 164; Ashby v. Bell, 80 Va. 811. We shall, however, notice briefly such of them as do not come within the proscription of the foregoing rule.

Thus, it is contended that a mere easement of right of way is not subject to the law of eminent domain.

The statute in terms embraces “lands, or any interest or estate therein, or materials, or other property,” (Va. Code, 1901, sec. 1105f, (3), (4), (5), (6); and “land has been held to include easements * * * and other incorporeal hereditaments, and all rights thereto and interests therein * * * , and to be synonymous with the terms real estate and real property.” 2 Bouv. L. Dict. 306. The antecedent section has been quite recently construed by this court, and the wide scope of the statute recognized and maintained. Clear Creek Water Co. v. Gladeville Imp. Co., 107 Va. 278, 58 S. E. 586.

Such easements are plainly within the intendment of the law.

The next assignment of error involves the contention that the alternative feature of the report — which fixes the damages at $5,100, if no other way is provided by the railway company as a substitute for those condemned; and at $3,000, if the company shall furnish such other way — renders it null and void, and beyond the power of the court to give effect to the award of the commissioners.

The circuit court rejected so much of the report as contemplates the possible establishment by the company of a new right of way, as surplusage, and adopted and confirmed the award of $5,100, unconditionally.

The practice of striking out part of the commissioners’ report as surplusage is approved in Richmond, &c. Ry. Co. v. Chamblin, 100 Va. 401, 41 S. E. 750, and the sequel to that case found in Seaboard Air Line Ry. v. Chamblin, ante, p. 42, 60 S. E. 727.

The remaining assignment to be considered points out error apparent upon the face of the record and report, which is highly prejudicial to the rights of the plaintiffs in error.

The jietition, which is the foundation of this proceeding, specifically seeks to condemn the easements referred to, comprising a surface area of one acre and a half, belonging to the plaintiffs in error, and no other property rights. Nevertheless, the commissioners, in obedience to the order appointing them, report the following findings: “that for the said interests and estate of the said Sarah S. Swann and ÜVIary M. Swann, and for the other property so taken, $500 will be a just compensation, and 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 by reason of the construction and operation of the works of said company, beyond the peculiar benefits that will accrue to such proprietors, respectively, from the construction and operation of such work are $5,100.”

It was beyond the power and jurisdiction of the commissioners and the court, under the procedure in this case, to take cognizance of property rights of persons who are strangers in title to the plaintiffs in error and their property, and not parties to the proceeding, and to make their separate and distinct holdings the subject of a joint award.

The following is a correct statement of the rules applicable to this class of cases: “An award to be' good should settle and determine every matter that is submitted. It should be as broad as the submission. If it is not, or if it goes outside of and beyond the submission, it is not binding on the parties. * * * A separate report is not required for each tract of land belonging to the same owner, and one report may embrace awards to different owners, but the amount due each must appear.” 15 Oyc. 890, 891, and authorities cited in notes.

The plaintiffs in error objected to the report as a whole in the court below, and this ground of objection not only appears on the face of the proceeding, but affects the jurisdiction of the court, and constitutes good cause for rejecting the report.

Section 1105f (14), it is. true, provides for a reference to a commissioner in chancery to enable the court to properly dispose of money paid into court upon the award of commissioners, to which end it may direct inquiries to ascertain what persons are entitled to the fund, and in what proportions. But this enactment applies to funds in which there is community of interest among the claimants (Williamson v. Read, 106 Va. 453, 56 S. E. 174), and not to a case involving distinct properties and ownership,, where the commissioners have returned a joint .award. The effect of upholding such action would be to substitute the judgment and finding of the commissioner in chancery for that of the commissioners in determining the essential question of the value of the respective properties — a result which the statute obviously does not contemplate.

This is fundamental error, for which the judgment complained of must be reversed, the report of the commissioners set aside, and the case remanded for further proceedings.

Reversed.