Chap. 380.—An ACT to confer upon the State Highway Commissioner the power
of eminent domain for the purpose of condemning certain lands and materials
for use in the construction, reconstruction, alteration, maintenance and repair
of the public highways of the State, to prescribe the procedure therefor, to
provide for the taking of lands and materials in certain cases before the institu-
tion of condemnation proceedings, to provide for compensating owners and
lessees of lands and materials taken pursuant to this act, and to repeal all acts
and parts of acts inconsistent herewith. [H B 227}

Approved April 1, 1940

1. Beit enacted by the General Assembly of Virginia, as follows:

Section 1. State Highway Commissioner to have power of eminent
domain.—The State Highway Commissioner, hereinafter called the
‘‘Commissioner’’, is hereby vested with the power of eminent domain
insofar as may be necessary for the construction, reconstruction, alter-
ation, maintenance and repair of the public highways of the State,
and for these purposes and all other purposes incidental thereto, may
condemn property in fee simple and rights of way of such width and
on such routes and grades and locations as by said commission may be
deemed requisite and suitable, including locations for permanent,
temporary, continuous or periodical use; and rights or easements
incidental thereto and lands, quarries, and locations with rights of
ingress and egress, containing gravel, clay, sand, stone, rock, timber,
and any other road materials deemed useful or necessary in carrying
out the purposes aforesaid. For the purpose of this act ‘‘Public
Highway”’ means highway, road and street; and where applicable, the
term ‘‘Public Highway” also includes bridge, ferry, causeway, landing
and wharf.

Section 2. Procedure.—Proceedings for condemnation hereunder
shall be instituted and conducted in the name of ‘State Highway
Commissioner,’’ and the procedure shall, except insofar as altered
hereby be mutatis mutandis the same as is prescribed by law for rail-
road corporations, and the rights of all persons affected shall be sub-
ject to the general laws of this State, insofar as the same may be
applicable under the general purposes of this act, and except as hereby
altered or modified.

The proceedings for condemnation shall be by petition to the
circuit court of the county in which the land, property and rights or
the major portion thereof sought to be acquired are located, or to the
judge of such court in vacation, which petition shall set forth with
reasonable particularity a description and designation of the interests,
rights and property intended to be taken, the name or names of the
landowners whose property is to be taken or affected, and such other
facts, if any, as may be deemed necessary by the Commissioner, to
give full information to the court and all persons in interest, and shall
be certified by oath of the Commissioner or by his duly authorized
agent or attorney. Upon or after the filing of the petition as aforesaid,
the Commissioner shall give ten days notice either to the tenant or
tenants of the freehold, or to the owner or owners of record as dis-
closed by the deed books of the county in which the land lies, of his
intention to apply to the proper court or judge, as defined in section
forty-three hundred and sixty-one, for the appointment of Commis-
sioners to ascertain what will be a just compensation for the land or
other property, or for the interest or estate therein, proposed to be
condemned for such uses and to award the damages, if any, resulting
to the adjacent or other property of the owner, or to the property of
any other person, beyond the peculiar benefits that will accrue to
such properties, respectively, from the construction and operation of
the highway, which notice shall be served on the tenant of the free-
hold, his guardian, or committee.

If any such tenant of the freehold to whom it is required to give
said notice, or any such record owner to whom it is required to give
said notice, be an infant or insane person, and have no guardian or
committee in this State, the court, or the judge thereof in vacation,
or the clerk of such court shall appoint a guardian ad litem for such
infant or insane person. If any such tenant or record owner be not a
resident of this State, or cannot with reasonable diligence be found
therein, or if it appears by affidavit that his residence is unknown, he
may be proceeded against by an order of publication, which order,
however, need not be published more than once a week for two con-
secutive weeks, and shall be posted not less than ten days previous to
such application. The publication shall in other respects conform to
sections sixty hundred and forty-three, sixty hundred and sixty-nine
and sixty hundred and seventy. The said tenant of the freehold or
owner of record shall upon motion of the petitioners within ten days
after the return day of the notice file, in writing, a bill of particulars
for valuations of the land to be taken and a statement of his appraisal
of the damages which will accrue to the residue. Within thirty days
after the filing of said bill of particulars the court in term time or the
judge thereof in vacation shall summon seven freeholders who shall
be residents of the county wherein the land, or a greater part thereof,
to be condemned is situate, from which seven, after the exercise of one
peremptory challenge by each the petitioner and the landholder, the
remaining five, or the original five, if only five have been summoned,
any three of whom may act, shall fix the value of the land taken and
the damages that will accrue to the residue. Upon the selection of the
commissioners, the court, or the judge thereof in vacation, shall direct
them, in the custody of the sheriff of the county to view the land des-
cribed in the petition with the landowner and the State Highway
Commissioner or any representative of either party being allowed to
be present, and none other unless otherwise directed by the court.
When the commissioners shall have viewed the land as above pro-
vided, they shall report this fact to the court or to the judge thereof in
vacation. The court, if in term time and the judge if in vacation, shall
set a day for hearing testimony on the issues joined and the condemna-
tion proceedings shall be conducted in the same manner as a case at
law in which there is a jury. When the commissioners shall have
arrived at their conclusion, they shall make their report accordingly
to the court, or to the judge thereof in vacation, and the court, or the
judge, as the case may be, shall have the same power over said com-
missioners’ report as it now has over verdicts of juries in civil actions;
provided, however, either party may apply for a writ of error to the
Supreme Court of Appeals as in other cases at law, and a supersedeas
may be granted in such cases in the same manner as now provided by
law in cases other than cases of appeals of right.

Upon the return of the report of the commissioners or viewers ap-
pointed in such proceedings and the confirmation, alteration or modifi-
cation thereof in the manner herein provided the sum so ascertained
by the court as compensation and damages, if any, to the property
owners, may be paid to the person or persons entitled thereto, or for
them into court or to the clerk thereof, upon which title to the property
and rights condemned shall vest in the Commonwealth of Virginia in
fee simple, or to such extent as may be prayed for in the petition, and
the Commissioner or his agent shall have the right to enter upon such
construction upon or use of, the said property and rights condemned
as may be authorized by said report.

Section 3. How certain materials taken without institution of
condemnation proceedings; compensation of owners.—The commis-
sioner, however, without the institution of condemnation proceedings,
may take from the most convenient lands so much wood, stone, gravel,
earth or other material as may be necessary to be used in the construc-
tion, reconstruction and maintenance of any of the highways and
bridges embraced in the State highway systems. If the owner or
tenant of any such land shall deem himself injured thereby and the
commissioner or his agent can agree with such owner or tenant as to
the amount of compensation or damage, he shall pay said amount to
the owner or tenant, as the case may be, but if an agreement cannot be
reached, then the trial justice of the county wherein the land is situated
shall, upon application to him by said owner or tenant, issue a warrant
to three freeholders of said county, requiring them to view the said
land and ascertain and report what is a just compensation and damage,
if any, to such owner or tenant for such taking, provided such warrant
may not issue more than six months after such materials have been
taken by the commissioner. The said freeholders, after being sworn,
shall ascertain such compensation or damage, if any, and report the
same to the commissioner or his duly authorized agent. The com-
missioner may thereupon allow the full amount so agreed upon or
reported by said freeholders, or so much thereof as to him may seem
reasonable, subject to the right of such owner or tenant to appeal to
the circuit court of the county wherein the land lies, as in other cases,
but no such appeal shall be taken more than three months after such
owner or tenant has been notified of the action of the commissioner
on the report of the freeholders.

Section 4. How certain other property taken before condemnation;
how owners campensated.—In addition to the exercise of the power of
eminent domain, as provided herein above, the commissioner is hereby
authorized to enter upon and take possession of such property and
rights of way, for the purposes set out in section one of this act, as the
commissioner may deem necessary, and proceed with the construction
of such highway. Within sixty days after the completion of the con-
struction of such highway, if the commissioner and the owner or
owners of such lands are unable to agree as to compensation and
damages, if any, caused thereby, the said commissioner shall institute
condemnation proceedings, as hereinbefore provided; and the amount
of such compensation and damages, if any, awarded to the owner in
such proceedings shall be paid out of the State highway fund, the
said commissioner to pay to the landowner or into court, or to the
clerk thereof, for his benefit such sum as he shall estimate to be the
fair value of the land taken and damage done, before entering upon
such land for construction purposes, provided such payment shall in
no wise limit the amount to be allowed under proper proceedings. It
is the intention of this section to provide that such property and rights
of way may, in the discretion of the commissioner, be condemned after
the construction of the highway, as well as prior thereto, and to direct
the fund out of which the judgment of the court in condemnation
proceedings shall be paid, and to provide that in all other respects the
provisions of this act shall apply, whether the property and rights of
way are condemned before or after the construction of the highway,
but the authorities constructing such highway under the authority of
this section, shall use diligence to protect growing crops, pastures, and
to prevent damage to any property not taken. So far as possible, all
rights of way shall be acquired or contracted for, before any condem-
nation is resorted to.

Section 5. Enhancement to be offset against damage.—In all
cases under the provisions of this act, the enhancement, if any, in
value of the remaining property of the landowner by reason of the
construction or improvement contemplated or made by the commis-
sioner, shall be offset against the damage, if any, resulting to such
remaining property of such landowner by reason of such construction
or improvement, provided such enhancement in value shall not be
offset against the value of the property taken; and provided, further,
that if such enhancement in value shall exceed the damage, there shall
be no recovery over against the landowner for such excess.

Section 6. Commissioner to issue certain certificates of payment.
—A certificate issued by the State Highway Commissioner and
countersigned by the Treasurer of Virginia, stating that any sum or
sums of money designated therein will be paid pursuant to the order of
any court or courts wherein condemnation proceedings under the pro-
visions of this act are pending, when filed with the said court or courts,
shall be deemed and held for the purpose of this act to be payment into
the custody of such court or courts. Payment against any such
certificate so issued and countersigned, when ordered by the court or
courts named therein, shall be paid by the Treasurer on warrants of the
Comptroller, issued on vouchers signed by the State Highway Com-
missioner. A duplicate of each such certificate so issued and counter-
signed shall be kept as a record in the office of the State Highway
Commissioner and a copy thereof shall be filed with the Treasurer of
Virginia.

2. Be it further enacted by the General Assembly of Virginia,
That Section of Chapter 403 of the Acts of the General Assembly of
1922, approved March 24, 1922, as heretofore amended, and all acts
and parts of acts inconsistent with the provisions of this act be, and
the same are hereby repealed; provided, however, that nothing herein
contained shall have application to any condemnation proceedings
pending on the effective date of this act.