CHAPTER 115

An Act to amend and reenact § 64-108 of the Code of Virginia, relating
to distribution of an estate and requiring a refunding bond.

[H 396]
Approved February 23, 1962

Be it enacted by the General Assembly of Virginia:

1. That § 64-108 of the Code of Virginia be amended and reenacted
as follows:

§ 64-108. Before any distribution of the proceeds of the estate of such
supposed decedent shall be made and before sale of any real or personal
property passing in kind by persons claiming the same as heirs at law or
devisees, the persons entitled to receive such proceeds or such property
in kind shall give a refunding bond with surety to be approved by the
court or judge, in such form as the court or judge shall direct, and with
condition that if the supposed decedent shall in fact be alive at that time,
they will respectively refund the amounts received by each on demand,
with interest thereon; but if the persons entitled to receive the same are
unable to give the security aforesaid, then the money shall be invested
under an order of the court or Judge in such manner as the court or judge
may approve, which investment may be changed from time to time as the
court or judge may deem proper. The interest arising from such invest-
ment shall be paid annually to the persons appearing to be entitled thereto
and such investment shall continue until security is given, as aforesaid,
or the court or judge, on application, shall order it to be paid to the
persons appearing to be entitled to it. But if the evidence shows the
length of absence of the supposed decedent to be more than * fifteen years,
the court or judge shall not require surety on such refunding bond.
An Act to amend Chapter 309 of the Acts of Assembly of 1920, approver
March 19, 1920, which provided a charter for the city of Bristol, b2
adding a section numbered 4-b, relating to the acquisition of properti

for public purposes.
[H 54

Approved February 23, 1962

Be it enacted by the General Assembly of Virginia:

1. That Chapter 309 of the Acts of Assembly of 1920, approved March
19, 1920, be amended by adding a section numbered 4-b, as follows:

§ 4-b. (a). Eminent Domain.—tThe city is hereby authorized tc
acquire by condemnation proceedings lands, buildings, structures and per-
sonal property or any interest, right, easement or estate ther ein, 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, however,
that the provisions of § 25-233 of the Code of Virginia 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 pro-
visions of this act, and whenever the city cannot agree on terms of pur-
chase 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 Corporation Court of the
City of Bristol, 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
condemned 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 where the purpose for which the right is
exercised is for use as a street, highway, bridge, tunnel, or other public
way, or for the installation, maintenance, repair or replacement of a
sewer, water or electric power line, the city may elect to proceed as here-
inafter provided. In the latter event, the resolution or ordinance directing
acquisition 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 prop-
erty 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 peti-
tion a notice directed to the owners and tenants of the freehold of the
property, if known, copies of which shall be served on such owners and
tenants, if known. If the owner or tenant of the freehold be unknown or
a nonresident of the State or cannot with reasonable diligence 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 provided
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 title to
such property or the interest or estate to be taken in such property 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 dam-
aged and all liens by deed of trust, judgment or otherwise upon said prop-
erty or estate shall be transferred to such funds and the city shall have
the right to enter upon and take possession of such property 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 prescribed 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, con-
tingent 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 commis-
sioner.

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 §§ 25-12 through
25-38 or Article 5 of Chapter 1 of Title 33 of the Code of Virginia 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 com-
pensate such owners for property taken or damaged. The commissioners
so appointed shall not consider improvements placed upon the property by
the city subsequent to its taking nor the value thereof nor the enhance-
ment | of the value of said property by said improvements in making their
award.

(c). Enhancement in Value When Considered.—In all cases under
the provisions of subsections (a) and (b), the enhancement, if any, in
value of the remaining property of the owner by reason of the construc-
tion or improvement contemplated or made by the city, shall be offset
against the damage, if any, resulting to such remaining property of such
owner 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 owner for
such excess.

(d). 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 pro-
ceeding 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 proceed-
ing. If no person shall appear and show title in himself the court shall
order the money, after deducting therefrom the costs of such publication
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 and 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 deduct-
ing 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, however, 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 person, claim to such money
may be asserted within five years after the removal of such disability.

An emergency exists and this act is in force from the date of its
passage.