Chap. 411.—An ACT to amend and re-enact Section 2 of Chapter 380 of the Acts
of the General Assembly of 1940, approved April 1, 1940, relating to the exercise
of the power of eminent domain by the State Highway Commissioner, said sec-
tion prescribing the procedure therefor. ) [S B 87]

Approved April 4, 1942

1. Be it enacted by the General Assembly of Virginia, That section
wo of chapter three hundred and eighty of the Acts of the General As-
sembly of nineteen hundred and forty, approved April first, nineteen
aundred and forty, be amended and re-enacted, as follows:

Section 2. Procedure—Proceedings for condemnation hereunder
shall be instituted and conducted in the name of “State Highway Com-
missioner”, and the procedure shall, except insofar as altered hereby, be
nutatis mutandis the same as is prescribed by law for railroad corpora-
‘ions, and the rights of all persons affected shall be subject 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 particu-
larity a description and designation of the interests, rights and property
intended to be taken, the name or names of the landowners whose prop-
erty 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 his intention to apply to the proper court or judge, as de-
fined in section forty-three hundred and sixty-one, for the appointment
of commissioners 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, from the construction and operation of the highway, which
notice shall be served on the tenant of the freehold, his guardian, or com-
mittee, or upon the owner or owners thereot.

If any such tenant of the freehold to whom it is required to give said
notice, or any such 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 suck
tenant or 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 fo
two consecutive weeks, and shall be posted not less than ten days previ
ous to such application. The publication shall in other respects conforn
to sections sixty hundred and forty-three, sixty hundred and sixty-nine
and sixty hundred and seventy.

The said tenant of the freehold, or the owner or owners, shall, upon
motion of the petitioner, file in writing, within ten days after the return
day of the notice of such motion, his grounds of defense, which grounds
of defense shall set out valuations of the land to be taken and an appraisal
of the damages which may accrue to the residue. After the filing.of said
grounds of defense, or after the time for filing same has expired, the court,
or the judge thereof in vacation, shall, upon motion of either the petitioner
or the landowner, summon either seven or five freeholders, who shall be
residents of the county wherein the land or the greater part thereof to be
condemned is situated. In the event seven are summoned, the petitioner
and the landowner shall each have one peremptory challenge and 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, if any, which may 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 or one of his deputies, who shall be paid
the sum of two dollars per day therefor, to view the land described 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 ; and, upon motion of either
party, the judge shall accompany the commissioners upon their view of
the land. Upon the completion of the view, the court or the judge in
vacation, shall hear the testimony in open court on the issues joined.
When the commissioners shall have arrived at their conclusion they shall
make their report in writing to the court, or to the judge thereof in va-
cation, which report may be confirmed or set aside forthwith by the court,
or the judge, as the case may be, provided that when said report is so
filed and before the court or judge passes thereon, either party shall have
the right to ask leave to file written exceptions to said report, which
exceptions shall be filed not later than ten days after the rendering of the
report by said commissioners. The court or the judge, as the case may be,
shall have the same power over the commissioners’ report as it now has
over verdicts of juries in civil actions.

All costs of the proceedings in the trial court under this act shall be
borne by the petitioner.

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 modifica-
tion 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 con-
demned 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 said construction upon or use
of, the said property and rights condemned as may be authorized by said
report. |

_ 2. Be it further enacted, That the amendments effected by this act
shall have no application to any proceeding instituted prior to the effective
date of this act.