To the extent Fenton means "owed for the temporary construction easements" to include the permanent easement and/or refer to the severance determination, the threshold question is whether damages caused by temporary construction after the date of the take can be a part of the analysis determining just compensation. In Ryan v. Davis , 201 Va. 79, 109 S.E.2d 409 (1959), the lower court instructed the commissioners that any damage the property may have sustained by reason of any wrongful act or negligent acts committed during the course of construction of a highway project was not compensable in the condemnation proceeding but could form the basis of a separate suit. The commissioners were further instructed to disregard evidence of annoyance, inconvenience, or loss of business caused by dirt, noise or temporary obstruction of access caused by the actual carrying on of the construction work.
Had the General Assembly intended to exclude such evidence, it could have plainly said as much. Relying on Ryan v. Davis, 201 Va. 79, 109 S.E.2d 409 (1959) and Duncan v. State Highway Comm'n, 142 Va. 135, 128 S.E. 546 (1925), the Commissioner argues that the Savage appraisal is inadmissible because the offer to purchase the property and the Certificate of Take amounts both came from that appraisal. Our interpretation and application of the pertinent statutes in this case is not inconsistent with our previous holdings in Ryan and Duncan.
"In every eminent domain case involving a partial taking, the measure of damages to the residue of the property not taken is the difference in the fair market value of the residue immediately before and immediately after the taking. In ascertaining such damages, both present and future circumstances which actually affect the value of the property at the time of taking may be considered, but remote and speculative damages may not be allowed. Colonial Pipeline v. Lohman, 207 Va. 775, 781, 152 S.E.2d 34, 39 (1967); Ryan v. Davis, 201 Va. 79, 82, 109 S.E.2d 409, 412 (1959); Appalachian Elec. Etc., Co. v. Gorman, 191 Va. 344, 353, 61 S.E.2d 33, 37 (1950)."
The owner contends that the trial court erred in giving the Board the right to open and close the final arguments to the commissioners after having ruled that the Board did not have the burden of proof on the issue of just compensation. The question of the right to open and close was decided in Ryan v. Davis, 201 Va. 79, 109 S.E.2d 409 (1959), where we said, It has been the traditional practice in this State for the condemner to open and close the argument before Commissioners.
Id. at 408. See also Hollywood Baptist Church v. State Highway Dept., 114 Ga. App. 98, 150 S.E.2d 271 (1966); Ryan v. Davis, 201 Va. 79, 109 S.E.2d 409 (1959); Chavez v. City of Laramie, 389 P.2d 23 (Wyo. 1964). Id. at 408.
The taxing of costs in litigation was unknown at common law and is purely a creature of statute. Ryan v. Davis, 201 Va. 79, 85, 109 S.E.2d 409, 414 (1959). Code § 18.2-500 provides that "costs of suit, including a reasonable fee to plaintiff's counsel" may be recovered on proof of a violation of Code § 18.2-499.
This evidence is also inadmissible. See 0.07 Acre, 2019 WL 2527571, at *11 (discussing Ryan v. Davis, 109 S.E. 2d 409 (Va. 1959), where an instruction to "disregard evidence of annoyance, inconvenience, or loss of business caused by dirt, noise or temporary obstruction of access caused by the actual carrying on of the construction work" was found to be "proper"). For these reasons, MVP's motion in limine will be granted in part and denied in part.
Tort law, not the condemnation statutes, provides the proper remedy in such situations. See Ryan v. Davis, 109 S.E.2d 409, 413 (Va. 1959) (stating that "any damage . . . sustained by reason of any wrongful or negligent acts committed during the course of construction of . . . [a] highway project is not compensable in th[e condemnation] proceeding, but would form the basis of a separate suit [in tort]"). Furthermore, the Supreme Court of Virginia has explained that the State Highway Commissioner lacks the "authority to institute condemnation proceedings for the purpose of determining damages occasioned by the tortious acts of his agents."
The rule in Virginia is the same. Duncan v. State Highway Commission, 142 Va. 135, 128 S.E. 546; Ryan v. Davis, 201 Va. 79, 109 S.E.2d 409 (June 22, 1959). It is argued that the landowner, on petition, could have received at least 95% of the "estimated compensation" paid into Court, without prejudicing its rights to secure a trial of the issue of just compensation.
5) ; Revocor Corp. v. Commonwealth Transp. Comm’r , 259 Va. 389, 394, 526 S.E.2d 4, 7-8 (2000) ; WAMMCO, Inc. v. Commonwealth Transp. Comm’r , 251 Va. 132, 137, 465 S.E.2d 584, 586 (1996) ; Chappell v. Virginia Elec. & Power Co. , 250 Va. 169, 172, 458 S.E.2d 282, 284 (1995) ; Lynch v. Commonwealth Transp. Comm’r , 247 Va. 388, 391, 442 S.E.2d 388, 390 (1994) ; East Tenn. Nat. Gas Co. v. Riner , 239 Va. 94, 100, 387 S.E.2d 476, 479 (1990) ; State Highway & Transp. Comm’r v. Linsly , 223 Va. 437, 443, 290 S.E.2d 834, 838 (1982) ; Allmond , 220 Va. at 241, 257 S.E.2d at 836 ; State Highway & Transp. Comm’r v. Parr , 217 Va. 522, 524, 230 S.E.2d 253, 255 (1976) ; Appalachian Power Co. v. Anderson , 212 Va. 705, 708, 187 S.E.2d 148, 152 (1972) ; Dressler v. City of Covington , 208 Va. 520, 522 n.1, 158 S.E.2d 660, 662 n.1 (1968) ; Colonial Pipeline Co. v. Lohman , 207 Va. 775, 781, 152 S.E.2d 34, 39 (1967) ; State Highway Comm’r v. Crockett , 203 Va. 796, 800, 127 S.E.2d 354, 357 (1962) ; Ryan v. Davis , 201 Va. 79, 82, 109 S.E.2d 409, 412 (1959) ; Appalachian Elec. Power Co. v. Gorman , 191 Va. 344, 353, 61 S.E.2d 33, 37 (1950) ; Long v. Shirley , 177 Va. 401, 410, 14 S.E.2d 375, 379 (1941) ; Chairman of the Highway Comm’n v. Fletcher , 153 Va. 43, 47, 149 S.E. 456, 457 (1929) ; Chairman of the Highway Comm’n v. Parker , 147 Va. 25, 29, 136 S.E. 496, 498 (1927) ; Town of Galax v. Waugh , 143 Va. 213, 229-30, 129 S.E. 504, 508-09 (1925) ; Swift & Co. v. City of Newport News , 105 Va. 108, 121-22, 52 S.E. 821, 826 (1906) ; Richmond & Mecklenburg R.R. Co. v. Humphreys , 90 Va. 425, 435-36, 18 S.E. 901 (1894). Within the general category of "circumstances which actually affect the value of the property at the time of taking," id. at 516, 561 S.E.2d at 728, our cases fall within two subcategories: (1) circumstances of the take that diminish the remainder’s fair market value, which the landowner could not remediate with an out-of-pocket expense, and (2) circumstances of the take that diminish the remainder’s fair market value in th