Hope v. Norfolk & Western Railroad

after stating the facts, delivered the opinion of the court:

In Virginia, feudal tenures having been abolished by statute, lands are not held under the commonwealth, but in the language *287of the act of 1779, all lands claimed in fee simple are held “in absolute and unconditional property.” 10 Hen. Stats. 64; 2 Minor’s Insts. (2d ed.) 61. The state, however, possesses the sovereign right of eminent domain, and the legislature has prescribed the manner in which the right may be exercised when land is wanted for works of internal improvement and other public purposes. But in the present case, the company did not choose to proceed under the statute to condemn the land; it sought to acquire it by negotiations in pais, with the life tenant, and with her only. Her deed purports to convey nothing more than her own interest in the land conveyed, and the public records of the county showed that the fee was in another. Ho steps were taken to acquire the title of the remainderman, and as to him, therefore, the possession of the company has been unlawful since the determination of the life estate. The constitution (art. V, sec. 14) forbids the taking of private property for public uses without just compensation, and in this case no compensation whatever has been received by the plaintiff for his interest in the land in the defendant’s possession. The statute is in harmony with the constitutional mandate, and requires that full compensation shall be made to those whose land is taken for public uses. It does not contemplate that proceedings under it will be instituted except in those cases in which the land wanted cannot be acquired by private treaty with those, and with all of those, who have an interest in it. Its language is as follows: “ If the president and directors of a company incorporated for a work of internal improvement, the court of a county, or the council of a town, cannot agree on the terms of purchase with those entitled to lands wanted for the purposes of the company, county or town, five disinterested freeholders shall be appointed by the court of the county or corporation in which such land, or the greater part thereof, shall lie (any three of whom may act) for the purpose of ascertaining a just compensation for such land. When it is intended to apply for such appointment, ten days’ previous notice thereof shall be *288served, on the tenant of the freehold, or his guardian or committee. But if there he no such tenant, guardian or committee, within the county or corporation, the notice instead of being thus served, may be published once a week for four weeks in some convenient paper, and posted at the door of the courthouse of the county or corporation on the first day of the term next preceding the application.” Code 1873, chap. 56, secs. 6, 7. It is .then further provided, that after the amount of compensation has been ascertained and reported by the commissioners, and their report has been confirmed, the sum so ascertained may be paid, not to the tenant of the freehold, if there be others interested, but to all the persons entitled thereto, or into court; and that thereupon the title to that part of the land, for which compensation is allowed, shall be absolutely vested in the company, county or town in fee simple. Id., § 11. And in order to enable the court to properly dispose of the money so paid into court, it is authorized to direct inquiries to be made by a commissioner to ascertain what persons are entitled thereto, and in what proportions, after which it may make such disposition of the money as may seem to it right. Id., § 16.

It will thus be seen that while in beginning proceedings under the statute, it is sufficient to give notice .to the tenant of the freehold, which has been held to mean the tenant in possession appearing as the visible owner. (Pitzer v. Williams, 2 Rob. 241; Supervisors of Culpeper v. Gorrell et als., 20 Gratt. 484, 511). A complete title to the land desired cannot be acquired in pais -except by agreement with all the parties who are entitled thereto. And as that has not been done in the present case, the title of the plaintiff was not affected by the deed of the life-tenant, and consequently the defendant’s possession is unlawful. See McClinton v. P. Ft. W. & C. R. R. Co., 66 Penn. St. 404; Daniels v. The C. & N. W. R. R. Co., 35 Iowa, 129; S. C., 14 Amer. Rep. 490; 1 Redfield on the Law of Railways (5th edition), chapter 13, 364; Pierce on Railroads, 167; and cases cited.

*289It only remains to say that the plea of the statute of limitations cannot he sustained. The life-tenant died in 1881. It was not until then that the plaintiff’s right of possession accrued, and the suit was brought within three years thereafter. Ball v. Johnson, 8 Gratt. 281; Jackson v. Johnson, 5 Cowen, 74; S. C., 15 Amer. Decisions, 443.

Questions of inconvenience discussed by counsel cannot he considered. The fact is, that the defendant unlawfully withholds possession of the plaintiff’s property, to which it has acquired no title, and for which he has received no compensation. It is competent, however, for the company, if it cannot acquire the land by private agreement, to condemn it, and thus it is hardly probable that public inconvenience will result from a reversal of the judgment complained of. But he that as it may, the plaintiff has shown himself entitled to recover, and the judgment must he reversed.

Richardson, J., dissented.

Judgment reversed.