Chap. 472.—An ACT to amend and re-enact section 10 of the act creating the
State highway commission approved March 6, 1906, as the same was amenced
by act approved March 21, 1924. [H B 400]

Approved March 26, 1928

1. Be it enacted by the general assembly of Virginia, That section
ten of the act creating the State highway commission, approved March
sixth, nineteen hundred and six, as the same was amended by act ap-
proved March twenty-first, nineteen hundred and twenty-four, be
amended and re-enacted so as to read as follows:

Section 10. Eminent domain. The State highway commissioner 1s
hereby vested with the power of eminent domain insofar as may be
necessary for the construction, reconstruction, alteration, maintenance
and repair of the roads embraced in the State highway system, and
for these purposes and all 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 commissioner may be
deemed requisite and suitable; 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.

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 by mutatis mutandis
the same as is prescribed by law for railroad corporations, 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 cir-
cuit 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,
right 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 the return of the report of the commissioners or viewers ap-
pointed in such proceedings the sum ascertained thereby as compensa-
tion 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 petition, and the commissioner shall
have the right to enter upon such construction upon or use of the
property and rights condemned as may be authorized by said report,
provided the right of appeal from or review of said report on excep-
tion thereto is hereby given to the property owner, or to the commis-
sioner, to the circuit court, on the question only of damages or com-
pensation.

The commissioner, however, without the institution of condemna-
tion 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 construction, reconstruction and maintenance of any of
the roads and bridges embraced in the State highway system. If the
owner or tenant of any such Jand 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 a justice of peace in 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 mate-
rials 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 commissioner 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.

In addition to the exercise of the power of eminent domain, as
provided by the preceding part of section ten of this act, the commis-
sioner is hereby authorized to enter upon and take possession of such
property and rights of way for the purposes set out in section ten of
this act, as the commissioner may deem necessary, and proceed with
the construction of such highway. Within sixty days after the com-
pletion of the construction of such highway, if the commissioner and
the owner or owners, of such lands are unable to agree as to com-
pensation 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 high-
way 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 condemna-
tion proceedings shall be paid, and to provide that in all other respects
the provisions of this section of this act shall apply, whether the prop-
erty 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 paragraph, 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 tor,
before any route is definitely located.

In all cases under the provisions of this section, 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
commissioner, shall be offset against the damage, if any, resulting to
such remaining property of such landowner by reason of such con-
struction 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.