Opinion
42507 Record No. 7476.
June 14, 1971
Present, Snead, C.J., I'Anson, Gordon, Harrison, Cochran and Harman, JJ.
Eminent Domain — Exception to Commissioners' Report.
Highway commissioner was required to file written exceptions to report of trial commissioners within the time prescribed in order to preserve his objections. His failure to do so waived any claim of error in the report.
Appeal from a decree of the Circuit Court of Arlington County. Hon. Paul D. Brown, judge presiding.
Appeal dismissed.
Stuart H. Dunn, Assistant Attorney General (Andrew P. Miller, Attorney General; William B. Moore; Phillips, Kendrick, Gearheart and Aylor, on brief), for appellant.
Howard W. Smith, Jr., for appellee.
The State Highway Commissioner of Virginia (Highway Commissioner) alleges that the trial court erred in admitting certain evidence of special damage and in granting an instruction on special damage at the hearing before the trial commissioners. Fairmac Corporation has filed a motion to dismiss this appeal on the ground that the Highway Commissioner has failed to properly preserve his objections.
We do not reach the merits of the assignments of error as we find the motion to dismiss is well taken.
The Highway Commissioner did not file written exceptions to the report of the trial commissioners. He was required to file such written exceptions to the report within the ten days allowed by Code Sec. 33-64, recodified in 1970 as Code Sec. 33.1-108, to preserve his objections to any claim of error at the hearing before the trial commissioners. His failure to do so waives any claim of error in the report. Ellis v. Commissioner, 206 Va. 194, 200-01, 142 S.E.2d 531, 536 (1965).
Plummer v. Director, 209 Va. 616, 166 S.E.2d 281 (1969), relied on by the Highway Commissioner, is clearly distinguishable from the case at bar. The objections there were directed to the qualifications of some of the trial commissioners and not to their report.
Appeal dismissed.