Summary
In Chaffinch, a homeowner filed a motion for judgment, claiming damages against a public service telephone company for damage to his property.
Summary of this case from Kitchen v. City of Newport NewsOpinion
44608 Record No. 811630.
March 9, 1984.
Present: All the Justices.
Public Service Company (telephone company) with eminent domain power under Code Sec. 56-1, -464 is liable to common law remedy for trespass, complainant not being restricted to declaratory judgment procedure described in Code Sec. 8.01-187; development of law of "inverse" condemnation discussed.
(1) Statutory Construction — Public Service Companies — Telephone Companies — Pleading and Practice — Declaratory Judgments — Commissioner to Determine Compensation for Property Taken or Damaged (Code Sec. 8.01-187) — Statute Merely Provides Additional Remedy by Declaratory Judgment for Enforcement of Common Law Rights.
(2) Statutory Construction — Public Service Companies — Telephone Companies — Pleading and Practice — Declaratory Judgments — Constitutional Law — Sovereign Immunity — Commissioners to Determine Compensation for Property Taken or Damaged (Code Sec. 8.01-187) — Just Compensation Clause (Virginia Constitution Article I, Section 11) Waives Sovereign Immunity From Inverse Condemnation Claims — Code Sec. 8.01-187 Provides Statutory Mechanism for Enforcement of Claims.
(3) Statutory Construction — Public Service Companies — Telephone Companies — Pleading and Practice — Declaratory Judgments — Commissioners to Determine Compensation for Property Taken or Damaged (Code Sec. 8.01-187) — Right of Eminent Domain (Code Sec. 5-464) — Public Service Company Not Immunized from Liability for Private Property Damages.
(4) Statutory Construction — Public Service Companies — Telephone Companies — Pleading and Practice — Declaratory Judgments — Commissioners to Determine Compensation for Property Taken or Damaged (Code Sec. 8.01-187) — Trespass After Having Been Forbidden to Do So (Code Sec. 18.2-119) — Common Law Remedies for Trespass Against Non-Sovereign Entity With Eminent Domain Power Not Preempted by Statutory Remedy Unless Stated or by Necessary Implication.
A homeowner filed a tort claim under Code Sec. 18.2-119 for compensatory and punitive damages against a public service company (telephone company) authorized to condemn private property under Code Sections 56-1 and -464, alleging trespass and damage to private property. The public service company moved to dismiss on the ground that the homeowner's exclusive remedy is a declaratory judgment action under Code Sec. 8.01-187. The Trial Court ruled that a declaratory judgment action under Code Sec. 8.01-187 is the exclusive remedy for a private property owner alleging a taking of his property by a condemning authority. The homeowner appeals.
1. Code Sec. 8.01-187, providing for Condemnation Commissioners' determination of compensation for property taken or damaged, neither disturbs nor adds to any common law rights, but merely provides another remedy to enforce existing rights.
2. Virginia Constitution, Article I, Sec. 11 establishes a right to just compensation for inverse condemnation, thereby waiving sovereign immunity from such claims. Code Sec. 8.01-187 creates an enforcement mechanism for this right.
3. Public service companies are not immune from liability for private property damage, either under Code Sec. 56-464, vesting them with eminent domain power or under Code Sec. 8.01-187.
4. A statutory remedy, such as the declaratory judgment remedy in Code Sec. 8.01-187, does not preempt common law remedies against a non-sovereign entity vested with the power of eminent domain unless the statute, expressly or by necessary implication, so provides, a tort remedy under Code Sec. 18.2-119 not being foreclosed.
Appeal from a judgment of the Circuit Court of the City of Roanoke. Hon. Ernest W. Ballou, judge presiding.
Reversed and remanded.
Fielding L. Logan, Jr., for appellant.
Michael A. Cleary (James F. Johnson; Woods, Rogers, Muse, Walker Thornton, on brief), for appellee.
The question framed on this appeal is whether a declaratory judgment proceeding is the exclusive remedy available to a landowner whose property has been damaged by a public service company vested with the power of eminent domain.
Lawrence E. Chaffinch, a homeowner, filed a motion for judgment sounding in tort and claiming compensatory and punitive damages against the Chesapeake Potomac Telephone Company of Virginia, Incorporated (C P), a public service company authorized to condemn private property. Code Sec. 56-1, -464. Chaffinch alleged that C P came upon his land and cut his shrubbery without his consent; that he protested the action orally and later served written notice forbidding C P to return; that C P disregarded his instructions and reentered his property; and that such conduct constituted a criminal offense under Code Sec. 18.2-119. The record does not disclose whether C P owned an easement across Chaffinch's lot.
Sec. 18.2-119. Trespass after having been forbidden to do so; penalties. — If any person shall without authority of law go upon or remain upon the lands, buildings or premises of another, or any part, portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof, or after having been forbidden to do so by a sign or signs posted by such persons or by the holder of any easement or other right-of-way authorized by the instrument creating such interest to post such signs on such lands, structures, premises or part, portion or area thereof at a place or places where it or they may be reasonably seen, he shall be guilty of a Class 1 misdemeanor. This section shall not be construed to affect in any way the provisions of Sections 18.2-132 through 18.2-136, and Sec. 29-170 of this Code.
C P moved to dismiss "on the ground that plaintiffs exclusive remedy is an action for a declaratory judgment". The trial court sustained the motion, and we granted Chaffinch an appeal.
Analysis of the issue before us requires a review of the development of the law of "inverse condemnation". The Commonwealth has always had sovereign power to take private property for a public use, and the private owner has always enjoyed the constitutional right to just compensation for the value of the property taken. But the owner had no constitutionally defined right to compensation for damages caused to his property by the sovereign until the adoption of the Constitution of 1902. Considering the effect of the change in the just-compensation provision, this Court held that "the provision is self-executing, and the common law, which provides a remedy for every wrong, will furnish the appropriate action for the redress of such grievance." Swift Co. v. Newport News, 105 Va. 108, 114-15, 52 S.E. 821, 824 (1906).
Citing this rule in later cases, we upheld the right to invoke common-law remedies to enforce the new constitutional guarantee of compensation for private property damaged for public use by political subdivisions of the Commonwealth. Nelson County v. Coleman, 126 Va. 275, 101 S.E. 413 (1919); Nelson County v. Loving, 126 Va. 283, 101 S.E. 406 (1919); Heidi v. Tunnel District, 196 Va. 477, 84 S.E.2d 511 (1954); Morris v. Tunnel District, 203 Va. 196, 123 S.E.2d 398 (1962).
Six years following our decision in Morris, the General Assembly enacted Code Sec. 8-581.1. Acts 1968, c. 782. Recodified as Sec. 8.01-187, Acts 1977, c. 617, this statute provides:
Whenever it is determined in a declaratory judgment proceeding that a person's property has been taken or damaged within the meaning of Article I, Sec. 11 of the Constitution of Virginia and compensation has not been paid or any action taken to determine the compensation within sixty days following the entry of such judgment order or decree, the court which entered the order or decree may, upon motion of such person after reasonable notice to the adverse party, enter a further order appointing commissioners to determine the compensation. The appointment of commissioners and all proceedings thereafter shall be governed by the procedure prescribed for the condemning authority.
By final judgment entered June 25, 1981, the trial court ruled that this statute was the "exclusive remedy, where plaintiff alleges that his property has been taken by a condemning authority". In support of that ruling, C P argues on brief that Chaffinch's claim "is based upon the alleged uncompensated taking or damaging of his property for a public use" and that, since C P "has been granted the power of eminent domain", Chaffinch's " sole recourse is an 'inverse' condemnation proceeding" under the provisions of Sec. 8.01-187 and the condemnation statutes. We do not agree.
We have expressly declared that the statute in question "disturbs no vested rights and creates no new obligation. It merely supplies another remedy to enforce existing rights." Stroobants v. Highway Comm., 209 Va. 275, 277, 163 S.E.2d 192, 194 (1968) (emphasis added). And in a more recent appeal involving an inverse condemnation claim against a political subdivision, we reaffirmed the rule upholding common-law rights of action announced in Swift Co. and applied in other cases pre-dating enactment of the statute. Burns v. Board of Supervisors, 218 Va. 625, 238 S.E.2d 823 (1977).
[2-3] The just-compensation clause of the Virginia Constitution, Article I, Sec. 11, constitutes a waiver of sovereign immunity from inverse condemnation claims, and Code Sec. 8.01-187 creates a statutory mechanism for the enforcement of such claims. Thus, when an inverse condemnation claim is asserted against the sovereign or one of its agencies or political subdivisions, there is some logic in the argument that the statutory mechanism was intended to be the sole remedy available. But the logic fails altogether when the claim is one asserted against other parties. Public service companies have never enjoyed immunity from liability for damaging private property, the power of eminent domain entrusted to them by Code Sec. 56-464 confers none, and we find nothing in the language of Code Sec. 8.01 — 187 or the annals of legislative history which reflects legislative intent to immunize them from actions at common law.
This argument was not asserted by the sovereign in Stroobants or Burns.
This statute was first added to the Declaratory Judgments Act soon after our analysis of that Act in Williams v. Bank of Norfolk, 203 Va. 657, 125 S.E.2d 803 (1962). There, we said:
Declaratory judgments "are intended to supplement rather than to supersede ordinary causes of action and to relieve litigants of the common law rule that no declaration of rights may be judicially adjudged until a right has been violated. Preventive relief is the moving purpose. Whether or not jurisdiction shall be taken is within the sound discretion of the trial court. Something more than an 'actual controversy' is necessary. In common cases where a right has matured or a wrong has been suffered, customary processes of the court, where they are ample and adequate, should be adopted."
Id. at 662, 125 S.E.2d at 806-07 (quoting American Nat. Bk. v. Kushner, 162 Va. 378, 386, 174 S.E. 777, 780 (1934)). In Morris v. Tunnel District, supra, an inverse condemnation case decided earlier the same year, we had recognized a common law right of action. The General Assembly was aware of these decisions when it enacted Code Sec. 8.01-187, and we believe that if it had intended the statutory proceeding "to supersede ordinary causes of action", it would have said so on the face of the statute. It did not, and we will not assume that the omission was an oversight.
Rather, we join courts in sister states which have held that a statutory remedy does not preempt common law remedies against a non-sovereign entity vested with the power of eminent domain unless the statute, expressly or by necessary implication, so provides. See, e.g., Chicago I. Coal Ry. Co. v. Hall, 135 Ind. 91,34 N.E. 704 (1893); McKee v. Delaware H. Canal Co., 125 N.Y. 353, 26 N.E. 305 (1891); McDaniel v. Greenville-Carolina Power Co., 95 S.C. 268, 78 S.E. 980 (1913). Accordingly, we hold that the trial court erred in its ruling that the remedy Chaffinch invoked was foreclosed by the remedy defined in Code Sec. 8.01-187, and we will reverse the judgment and remand the case for a trial on the merits.
Reversed and remanded.