Opinion
Record No. 2163
November 20, 1939
Present, All the Justices
1. EMINENT DOMAIN — Report of Commissioners — Setting Aside — City of Supreme Court of Appeals Where Trial Court Erred — Case at Bar. — In the instant case, a condemnation proceeding instituted by the State Highway Commissioner, the trial court set aside the report of the first commissioners appointed, and confirmed the report of a second commission, awarding a much smaller sum.
Held: That if the trial court erred in setting aside the first report it was the duty of the Supreme Court of Appeals to reinstate the report and enter judgment against the Highway Commissioner for the amount of the award with interest and costs.
2. ESTATES — Life Estates — Power of Tenant to Convey — Case at Bar. — The instant case was a condemnation proceeding instituted by the State Highway Commissioner after he discovered that one who had executed a contract conveying the land in question to the Commonwealth was not the owner in fee of the property but owned only a life estate therein.
Held: That the life tenant had no power to enter into a contract with the Commonwealth agreeing to grant and convey the land in fee simple, because he did not own the fee. He could only grant and convey his own interest.
3. EMINENT DOMAIN — Report of Commissioners — Inclusion of Prior Contract — Contract by Life Tenant to Convey Land — Case at Bar. — The instant case was a condemnation proceeding instituted by the State Highway Commissioner after he discovered that one who had executed a contract conveying the land in question to the Commonwealth was not the owner in fee of the property but owned only a life estate therein. The report of the commissioners showed the value of the land taken and the damages to the residue to be far in excess of the amount fixed in the contract, but the contract was not mentioned in the report. The Highway Commissioner excepted to the report because the contract was not set forth therein, as required by section 4380 of the Code of 1936, and the trial court sustained the exception and set aside the report.
Held: That the contract, if valid, and if it was not waived by the Highway Commissioner, should have been set forth in the report of the commissioners as affecting the interest of the life tenant.
4. EMINENT DOMAIN — Report of Commissioners — Inclusion of Prior Contract — Effect of Failure of Parties to Request Inclusion — Case at Bar. — The instant case was a condemnation proceeding instituted by the State Highway Commissioner after he discovered that one who had executed a contract conveying the land to the Commonwealth was not the owner in fee of the property but owned only a life estate therein. In the condemnation proceedings the amount of land to be condemned was increased from that agreed upon in the contract. The commissioner's report showed the value of the land to be taken and the damages to the residue to be far in excess of that agreed upon in the contract, and they made an award accordingly but did not mention the contract in their report. The Highway Commissioner excepted to the report on the ground that it did not embody the contract, as required by section 4380 of the Code of 1936, and the trial court sustained the exception and set aside the report. Neither the Highway Commissioner nor the landowners asked that the contract be made a part of the report, and through the entire proceedings neither party insisted upon the contract.
Held: That, under the circumstances, the parties did not rely upon the contract but abandoned it. They did not desire it to be set forth in the report of the commissioners, and consequently the report should not have been set aside.
5. EMINENT DOMAIN — Report of Commissioners — Inclusion of Prior Contract — Duty of Parties to Request Inclusion. — If there are contracts relating to fencing, culverts, etc., prior to condemnation proceedings, and the parties desire to preserve these rights and have them run as covenants with the land, it is incumbent upon them to bring such matters to the attention of the commissioners and to see that their contracts are set forth in the commissioners' report. If they fail to do this and the report of the commissioners does not embrace the contract, such failure alone is not just cause for setting the report aside.
6. ESTATES — Life Estates — Power of Life Tenant to Create Covenants Running with Land — Case at Bar. — The instant case was a condemnation proceeding instituted by the State Highway Commissioner after he discovered that one who had executed a contract conveying the land to the Commonwealth was not the owner in fee of the property but owned only a life estate therein. In the condemnation proceedings the amount of land to be condemned was increased from that agreed upon in the contract. The commissioners' report showed the value of the land to be taken and the damages to the residue to be far in excess of that agreed upon in the contract, and they made an award accordingly but did not mention the contract in their report. The Highway Commissioner excepted to the report on the ground that it did not embody the contract, as required by section 4380 of the Code of 1936, and the trial court sustained the exception and set aside the report. Neither the Highway Commissioner nor the landowners asked that the contract be made a part of the report, and through the entire proceedings neither party insisted upon the contract. Section 4380 of the Code of 1936 requires that the contract be set out in the report, and if the report is confirmed the contract shall run as a covenant with the land.
Held: That the life tenant could not create any covenants that would run with the land.
7. EMINENT DOMAIN — Report of Commissioners — Inclusion of Prior Contract — Report Not Nullified by Failure to Comply with Statute. — By section 4380 of the Code of 1936, requiring that contracts made prior to eminent domain proceedings should be brought to the attention of the commissioners and set forth in their report, and if confirmed should thereafter run as a covenant with the land, the legislature never intended that the failure of the commissioners to set forth any contract that might have been entered into between the parties should nullify the report.
8. EMINENT DOMAIN — Report of Commissioners — Inclusion of Prior Contract — Erroneous Refusal to Confirm Report Not Including Prior Contract — Case at Bar. — The instant case was a condemnation proceeding instituted by the State Highway Commissioner after he discovered that one who had executed a contract conveying the land to the Commonwealth was not the owner in fee of the property but owned only a life estate therein. In the condemnation proceedings the amount of land to be condemned was increased from that agreed upon in the contract. The commissioners' report showed the value of the land to be taken and the damages to the residue to be far in excess of that agreed upon in the contract, and they made an award accordingly but did not mention the contract in their report. The Highway Commissioner excepted to the report on the ground that it did not embody the contract, as required by section 4380 of the Code of 1936, and the trial court sustained the exception and set aside the report. Neither the Highway Commissioner nor the landowners asked that the contract be made a part of the report, and through the entire proceedings neither party insisted upon the contract. There was no evidence tending to show that the award was excessive or that it was not sustained by the evidence, nor was there any evidence tending to show that the commissioners were actuated by any bias or prejudice or that they were guilty of any misconduct.
Held: That the report should have been confirmed.
Error to a judgment of the Circuit Court of Wythe county. Hon. John S. Draper, judge presiding.
Reversed.
The opinion states the case.
Thomas F. Walker, for the plaintiffs in error.
Abram P. Staples, Attorney-General, and A.B. Carney, Assistant Attorney-General, for the defendant in error.
The petitioners, P. D. Grubb and the heirs of his deceased wife, Polly Anne Grubb, challenge a judgment rendered in their favor against the State Highway Commissioner for $973 as compensation for land taken by condemnation proceedings and damages to the residue. There were two awards made by the commissioners. The first award which fixed the damages and compensation at $2285 was set aside by the court. The second ascertained damages and compensation at $973 and it was confirmed by the court. The error assigned is that the court should have confirmed the first award and we are asked to reinstate it and to annul the subsequent proceedings.
On September 4, 1936, a declaration was filed with the clerk of the Circuit Court of Wythe county by the State Highway Commissioner stating that condemnation proceedings were necessary to acquire for highway purposes 1.47 acres of land belonging to P. D. Grubb and that a fair value for the land taken and damages to the residue was $488. P. D. Grubb was the life tenant of the farm on which the strip was situated and as such, thought that he had the sole control of it. He entered into negotiations with the representative of the Highway Commissioner which resulted in an agreement as to the amount of compensation for the land to be taken, damages to the residue and for the construction of an underpass by the Highway Commissioner through which his cattle might pass and obtain water from a spring situated on a small tract of land belonging to the petitioners on the opposite side of the new road. The new highway had separated his home from the spring which he had used for more than 50 years. The Highway Commissioner was under the impression that P. D. Grubb was the owner in fee of the property. A contract was drawn in which the compensation was fixed at $973. Provision was also made for the underpass. P. D. Grubb signed the contract and sent it to Richmond.
Later, upon investigation by the attorney for the Highway Department, it was disclosed that P. D. Grubb was not the sole owner of the property through which the road was to be built, but that he owned only a life estate therein. At his death it was to pass to the heirs of his deceased wife, Polly Anne Grubb. This information caused the attorney to write Mr. Grubb the following letter: "Due to the state of the title to your property it is necessary that we have a condemnation suit. Accordingly the sheriff will serve you and your children who live in Wythe county with a notice of this suit and there will be an order of publication in the newspaper. I am giving you this information so that you will understand the complete situation." This letter was written on December 21, 1936, and signed by S. B. Campbell, who acted as attorney for the Highway Department. From this letter Mr. Grubb understood that the contract would be superseded by the condemnation proceedings and he employed counsel to represent him and his children.
Condemnation proceedings were instituted and in the petition filed the amount of land to be taken was increased from 1.47 acres, as agreed in the contract, to 1.74 acres. The commissioners who had been appointed by the court viewed the premises and at the hearing the contract was introduced over the objection of the attorney for the landowners. The commissioners received the contract and carried it with them to the jury room. Their report showed the value of the land to be taken to be $250 and damages to the residue of $2035, making the total award of $2285, but they did not mention the contract in their report. The State Highway Commissioner excepted to the report on the last day that exceptions could be filed. The main objection raised was the failure of the commissioners to "set forth such contract in their report", as is required by Code, section 4380. The court sustained the exception on that ground and set aside the report. A second commission was appointed and after viewing the land and hearing evidence, awarded the plaintiffs in error $973 for the land taken and damages to the residue.
There are three assignments of error but it is only necessary for us to consider the first which was the failure of the lower court to overrule the exceptions of the Highway Commissioner to the first commissioners' report and its failure to enter a judgment thereon. If the court erred in setting aside the first report it is our duty to reinstate the report and enter judgment against the Highway Commissioner for the amount of the award with interest and costs.
As indicated, the only reason assigned by the trial court for its action was the failure of the commissioners to "set forth such contract in their report", in accordance with Code, section 4380. That section is as follows: "If the company and the person whose land, or any interest or estate therein, is being condemned under the provisions of this chapter 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."
Counsel for the petitioners contend that the requirement of the statute is purely a mechanical one; that the objection founded upon the failure to report the contract was technical and insufficient to have justified the court in setting the report aside, because substantial justice had been done; that the Highway Commissioner had vitiated the contract by making material changes therein without the consent of the petitioners and that in any event the Highway Commissioner had waived the contract by not relying upon it and by instituting condemnation proceedings.
P. D. Grubb had no power to enter into a contract with the Commonwealth of Virginia agreeing to grant and convey in fee simple the land in question, because, as we have seen, he did not own the fee. He could only grant and convey his own interest which was a life estate. The statute did not require the commissioners to set forth the contract in their report as to the owners of the fee because there was no contract in so far as they were concerned.
The contract, if valid, and if it was not waived by the Highway Commissioner should have been set forth in the report of the commissioners as affecting the interest of P. D. Grubb.
However, it is perfectly clear from the record that neither the Highway Commissioner nor the landowners asked that the contract be made a part of the report. In fact the formal draft of the report was made by counsel for the Highway Commissioner and he failed to submit any information therein of the existence of the contract. Through the entire proceedings leading up to the first award neither party insisted upon the contract. It was only after the award was made that counsel for the Highway Commissioner invoked the provisions of section 4380. Prior to that time he made no effort to have the commissioners report the contract. The clear inference is that it was purely an after-thought. Under these circumstances we are of the opinion that the parties did not rely upon the contract but abandoned it, and that they did not desire it to be set forth in the report of the commissioners.
Again it is quite clear from the record that the contract now invoked by the Highway Commissioner is not the identical contract which was signed by P. D. Grubb. The testimony and affidavit of the right of way agent of the Highway Commissioner disclose that the quantity of land taken, the width, plans and blue print were changed after the contract had been signed by Grubb. However, we do not rest the decision of the case upon this objection.
A statute somewhat similar to section 4380 was enacted by the General Assembly in 1883-84 and carried in the Code of 1887 as section 1090. This act was repealed as disclosed by the Code of 1904 and a new section was then written which is carried in the Code of 1904 as section 1105f, subsection 20. From that time to the present it has remained the same. When the new act was placed in the Code of 1904 this language was added, "and if the said report be confirmed, and the land, or the interest or estate therein, be taken, this said contract shall thereafter run as a covenant with the said land, or with the interest or estate therein, so taken".
[5, 6] The evident purpose of the original act was to preserve contract rights after the exercise of the right of eminent domain by railroads and other similar companies in relation to building, operating or maintaining the proposed work, or in relation to fencing, crossings, culverts, depots, stations, sidings, cattle-guards, damage from fire, etc. Then in 1904 the new statute after embracing the same language as was contained in section 1090 of the Code of 1887, added new language and made such contracts run as covenants with the land. While originally the statute applied to the acquisition of land by railroads and other like companies by eminent domain it now also applies to the Highway Commissioner in acquiring rights of way for highways by eminent domain. If there are contracts relating to fencing, culverts, etc., and the parties desire to preserve these rights and have them run as covenants with the land it is incumbent upon them to bring such matters to the attention of the commissioners and to see that their contracts are set forth in the commissioners' report. If they fail to do this and the report of the commissioners does not embrace the contract, such failure alone is not just cause for setting the report aside. It might be noted however that P. D. Grubb owning only a life interest could not create any covenants that would run with the land.
The legislature never intended that the failure of the commissioners to set forth any contract that might have been entered into between the parties should nullify the report. There is no language in the statute that expresses any such intention. Certainly, if the legislature intended to vitiate and set at naught all such reports it would have made its purpose clear by plain and unambiguous language.
There was no evidence tending to show that the first award was excessive or that it was not sustained by the evidence. Likewise, there was no evidence tending to show that the commissioners were actuated by any bias or prejudice or that they were guilty of any misconduct. The instructions of the court to the commissioners were not objected to by either side and there is nothing in the record which discloses that they failed to follow them. The instructions fully comprehended the law as applicable to the case and were fair to both sides, but they did not tell the commissioners to set forth the contract in their report because no such request was made by either side.
We are of opinion that the first report of the commissioners should have been confirmed. The judgment will therefore be reversed and a final judgment entered here upon the award of the first report with interest and costs.
Reversed.