Ewing v. Board of Supervisors
Ewing v. Board of Supervisors
Opinion of the Court
delivered the opinion of the court.
The proceeding was pending for more than two years prior to the date of the judgment here complained of. During that time a number of orders were entered by the supervisors, and a number of reports were made by various boards of viewers and commissioners. There was some irregularity in these orders and. reports, but in the ultimate outcome of the proceedings there was a substantial compliance with all of the requirements of the general road law applicable to the case. From an order of the board of supervisors making a final adoption of the road through the premises and allowing $500 for compensation and damages to the Ewings, the latter appealed to the Circuit Court of Nelson county. That court, having heard the evidence of witnesses and the arguments of counsel, entered the order here complained of, establishing the road and fixing the compensation and damages in like manner as had been done in the final order of the board of supervisors. Thereupon, the Ewings applied for and obtained this writ of error.
The appellants, in their petition for the writ, assign errors as follows: “First, the action of the court in overruling the motion to dismiss; second, in establishing the road at the location in question; third, in not allowing the landowners or petitioners sufficient compensation for the land taken and the damages to the residue; and, fourth, the failure to comply with the provisions of the Virginia statute on the subject of establishing and constructing roads and on the power of eminent domain; the result of which noncompliance is very material to the landowners.”
In presenting this view, it is pointed out that section 1980, a part of the general road law, requires that “the commissioners, in the discharge of their duties, shall comply in all respects with the provisions of the chapter concerning the exercise of the power of eminent domain, so far as applicable;” and that section 4385, a part of the general law with reference to the exereise of the right of eminent do
It is evident that the viewers in the instant case had, and -hat the viewers and commissioners (if there be commissioners) in every case under the general law will have, the benefit of such surveying as may be necessary to determine the location, width and grade of the road, and thus be able to determine approximately the amount of cutting, filling and other construction work to be done, and fix the damages accordingly.
The physical situation in the present case is such as to render it highly improbable that any change of grade upon the road in question will ever be considered desirable. If such a change should be made, however, and the landowners should claim damages on that account, the question which we left open in Nelson County v. Loving, 126 Va. 283; 101 S. E. 406, would arise. It does not arise here be
It may be that the general road law would be improved by a provision more nearly in conformity with section 4364 than anything now found therein, but this is a question for the legislature.
The foregoing discussion has disposed of all the questions which were specifically adverted to or discussed in the assignments of error. It is true that the motion to dismiss, referred to in the first assignment, was accompanied by numerous grounds set out in the record of the proceed* ings in the circuit court, but none of these grounds was argued or adverted to in the petition for the writ of error except those hereinbefore discussed. With respect to the residue of those grounds, we deem it sufficient to say that they have been duly considered and are overruled.
We find no error in the judgment complained of, and the same is accordingly affirmed.
Affirmed,
Reference
- Full Case Name
- H. and H. N. Ewing v. Board of Supervisors of Nelson County
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- 1. Streets and Highways—Eminent Domain—Finding as to Damages Sustained on Appeal—Case at Bar.—In proceedings by a board of supervisors to establish a county road through the lands of appellants, the evidence was conflicting as to what amounts should have been allowed by the lower court for compensation and damages to the landowners. Several board of view had fixed it at various amounts, none of them in excess of $500. The lower court, upon a hearing de novo, saw and heard the witnesses, and fixed the amount at the latter sum. Upon a careful consideration of the evidence which was before the trial court, the Supreme Court of Appeals was unable to say that its finding in this respect was without, substantial support, and therefore refused to interfere. 2. Streets and Highways—Eminent Domain—Viewers Directed to Give an Opinion as to Proper Width of Highway.—Proceedings by a board of supervisors under the general road law were not erroneous, because the viewers appointed under the provisions of section 1977 of the Code of 1919 were directed to report upon the question as to how wide the road should be, and did so report, where it appeared that the width of the road, as finally fixed, represented the independent judgment and action of the board of supervisors. 3. Streets and Highways—Eminent Domain—Procéedings Under General Road Law—Failure to File Map or Plat as Required by Section 1361. of the Code of 1919.—In proceedings by a board of - supervisors to establish a county road under the general road law, as found in sections 1977-1980 of the Code of 1919, the board of supervisors were not bound under the law to file a map or plat showing cuts, fills, trestles, and bridges, etc., as required by section 4364 of the Code of 1919, being a part of the chapter concerning the exercise of the power of eminent domain, where the map or diagram contemplated by section 1978, Code of 1919, of the general road law, was returned with the report of the viewers. And this notwithstanding the provision of section 1980, Code of 1919, that “the commissioners, in the discharge of their duties, shall comply in all respects with the provisions of the chapter concerning the exercise of the power of eminent domain, so far as applicable,” and of section 4385 of the Code of 1919, providing that proceedings for the condemnation of a right of way for a public road shall be in accordance with the provisions of the eminent domain chapter. 4. Streets and Highways—Eminent Domain—Two Methods of Acquiring Land for Public Highway—General Road Laio—General Statute of Eminent Domain.—There are two methods, then, in Virginia, as the law now is, by which the boards of supervisors may acquire lands for public highways. They may at their election either proceed in the circuit court under the general statute authorizing the exercise of the right of eminent domain, or under the general road law, vesting jurisdiction in the boards of supervisors to exercise that power in proceedings for the establishment of highways, subject to appeal to the circuit court and ultimately to the Supreme Court of Appeals. 5. Streets and Highways—Eminent Domain—Compensation—Future Change of Grade.—Whether where compensation and damage to landowners from the establishment of a public road are fixed upon the present location and grade of the highway in the manner authorized by valid statutory provisions, further claims for damages arising from future changes of grade are cut off is not determined in the instant case.