CHAPTER 251

An Act to amend Chapter $ of the Acts of Assembly of 1948, approved
February 11, 1948, as amended, which provided a new charter for
the city of Waynesboro, by adding § 5.1, relating to the acquisition
of property for public purposes. CH 13]

Approved March 8, 1956

Be it enacted by the General Assembly of Virginia:

1. That Chapter 3 of the Acts of Assembly of 1948, approved February
11, 1948, as amended be amended by adding § 5.1 as follows:

§ 5.1. (a). Eminent Domain.—The city is hereby authorized to
acquire by condemnation proceedings lands, buildings, structures and
personal property or any interest, right, easement or estate therein, of
any person or corporation, for its purposes whenever in the opinion of the
council a public necessity exists therefor, which shall be expressed in the
resolution or ordinance directing such acquisition, whether or not such
lands, buildings, structures or personal property or interest, right, ease-
ment or estate has already been devoted to a public use, provided, how-
ever, that the provisions of § 25-238 of the Code of Virginia, 1950, shall
apply as to any property owned by a corporation possessing the power
of eminent domain that may be sought to be taken by condemnation under
the provisions of this act, and whenever the city cannot agree on terms of
CH. 251] ACTS OF ASSEMBLY 269

purchase or settlement with the owners of the subject of such acquisition
because of incapacity of such owner, or because of the inability to agree
on the compensation to be paid or other terms of settlement or purchase,
or because the owner or some one of the owners is a nonresident of the
State and cannot with reasonable diligence be found in the State or is
unknown.

Such proceedings may be instituted in the Circuit Court of the city of
Waynesboro, if the subject to be acquired is located within the city, or, if
it is not located within the city, then the circuit court of the county in
which it is located. If the subject is situated partly within the city and
partly within any county, the proceeding shall be instituted in the court
of the political subdivision in which the greater part of the land to be con-
demned is located. The judge or the court before whom the proceeding
is instituted shall appoint five disinterested freeholders, three of whom
shall be residents of the political subdivision in which the greater part
of the land to be condemned is located and two of whom shall be residents
of the political subdivision in which the lesser part of the land to be con-
demned is located, three of whom may act as commissioners as provided
by law, two of whom shall be residents of the political subdivision in
which the greater part of the land to be condemned is located and one of
whom shall be a resident of the political subdivision in which the lesser
part of the land to be condemned is located.

(b). Alternative Procedures in Condemnation—The city may, in
exercising the right of eminent domain conferred by subsection (a), make
use of the procedure prescribed by the general law of the Commonwealth
as modified by subsection (a) or may elect to proceed as hereinafter pro-
vided. In the latter event, the resolution or ordinance directing acquisi-
tion of any property, as set forth in the preceding section, shall provide
therein in a lump sum the total funds necessary to compensate the owners
thereof for such property to be acquired or damaged. Upon the adoption
of such resolution or ordinance the city may file a petition in the clerk’s
office of a court having jurisdiction of the subject, which shall be signed
by the city manager and set forth the interest or estate to be taken in the
property and the uses and purposes for which the property or the interest
or estate therein is wanted, or when property is not to be taken but is
likely to be damaged, the necessity for the work or improvement which
will cause or is likely to cause such damage. There shall also be filed with
the petition a plat of a survey of the property with a profile showing cuts
and fills, trestles and bridges, if any, and a description of the property
which, or an interest or estate in which, is sought to be taken or likely to
be damaged and a memorandum showing names and residences of the
owners of the property, if known, and showing also the quantity of prop-
erty which, or an interest or estate in which, is sought to be taken or
which will be or is likely to be damaged. There shall be filed also with said
petition a notice directed to the owners and tenants of the property, if

own, copies of which shall be served on such owners and tenants of the
freehold of such property, if known. If the owner or tenant of the freehold
be unknown or a nonresident of the State or cannot with reasonable dili-
gence be found in the State, or if the residence of the owner or tenant be
unknown, he may be proceeded against by order of publication which
order, however, need not be published more than once a week for two
successive weeks and shall be posted at a main entrance to the courthouse.
The publication shall in all other respects conform to §§ 8-71, 8-72 and
8-76 of the Code of Virginia.

Upon the filing of said petition and the deposit of the funds pro-
vided by the council for the purpose in a bank to the credit of the court
in such proceedings and the filing of a certificate of deposit therefor, the
interest or estate of the owner of such property shall terminate and the
270 ACTS OF ASSEMBLY [va., 1956

title to such property or the interest or estate to be taken in such prop-
erty shall be vested absolutely in the city and such owner shall have such
interest or estate in the funds so deposited as he had in the property
taken or damaged and all liens by deed of trust, judgment or otherwise
upon said property or estate shall be transferred to such funds and the
city shall have the right to enter upon and take possession of such prop-
erty for its uses and purposes and to construct its works or improvements.
The clerk of the court in which such proceeding is instituted shall make
and certify a copy of the petition, exhibits filed therewith, and orders, and
deliver or transmit the same to the clerk of the court in which deeds are
admitted to record, who shall record the same in his deed book and index
them in the name of the person or persons who had the property before
and in the name of the city, for which he shall receive the same fees pre-
scribed for recording a deed, which shall be paid by the city.

If the city and the owner of property so taken or damaged agree
upon compensation therefor, upon filing such agreement in writing in
the clerk’s office of such court the court or judge thereof in vacation shall
make such distribution of such funds as to it may seem right, having due
regard to the interest of all persons therein whether such interest be
vested, contingent or otherwise, and to enable the court or judge to make
a proper distribution of such money it may in its discretion direct
inquiries to be taken by a special commissioner in order to ascertain what
persons are entitled to such funds and in what proportions and may direct
what notice shall be given to the making of such inquiries by such special
commissioner.

If the city and the owner cannot agree upon the compensation for
the property taken or damaged, if any, upon the filing of a memorandum
in the clerk’s office of said court to that effect, signed by either the city
or the owner, the court shall appoint commissioners provided for in
§ 25-12 of the Code of Virginia or as provided for in subsection (a)
hereof, and all proceedings thereafter shall be had as provided in
8§ 25-12 through 25-38 or §§ 33-59 through 33-67 of the Code of Vir-
ginia insofar as they are then applicable and are not inconsistent with
the provisions of this and the preceding section, and the court shall order
the deposit in bank to the credit of the court of such additional funds as
appear to be necessary to cover the award of the commissioners or shall
order the return to the city of such funds deposited that are not necessary
to compensate such owners for property taken or damaged. The commis-
sioners so appointed shall not consider improvements placed upon the
property by the city subsequent to its taking nor the value thereof nor
the enhancement of the value of said property by said improvements in
making their award.

(c).. Unclaimed Funds in Condemnation Cases.—Whenever any money
shall have remained for five years in the custody or under the control
of any of the courts enumerated in subsection (a), in any condemnation
proceeding instituted therein by the city, without any claim having been
asserted thereto such court shall, where the amount is one hundred dollars
or more, cause a publication to be made once a week for two successive
weeks in a newspaper of general circulation published in the city, setting
forth the amount of such money, the source from which it was derived
and the proceeding in which it is held, and requiring all persons having
any claim to said money to appear before said court within such time
after the completion of the publication as the court may prescribe, and
establish their claim. If the sum be less than one hundred dollars, the
court shall direct the same to be paid into the treasury of the city, and a
proper receipt for the payment taken and filed among the records of the
proceeding. If no person shall appear and show title in himself the court
shall order the money, after deducting therefrom the costs of such pub-
CHS. 251, 252] ACTS OF ASSEMBLY 271

lication if such publication is made, and any other proper charges, to be
paid into the treasury of the city and a proper receipt for the payment
to be taken and filed among the records of the proceeding. The City
Auditor shall, in a book provided for the purpose, keep an account of all
money thus paid into the city treasury, showing the amount thereof,
when, by whom, and under what order it was paid, and the name of the
court and, as far as practicable, a description of the suit or proceeding
in which the order was made and,.as far as known, the names of the
parties entitled to said funds. Money thus paid into the treasury of the
city shall be paid out on the order of the court having jurisdiction of the
proceeding, to any person entitled thereto who had not asserted a claim
therefor in the proceeding in which it was held, upon satisfactory proof
that he is entitled to such money. If such claim be established the net
amount thereof, after deducting costs and other proper charges, shall be
paid to the claimant out of the treasury of the city on the warrant of the
City Auditor. No claim to such money shall be asserted after ten years
from the time when such court obtained control thereof, provided, how-
ever, if the person having such claim was an infant, insane, or imprisoned
at the time the claim might have been presented or asserted by such per-
son, claim to such money may be asserted within five years after the
removal of such disability.