CHAPTER 581

AN ACT to amend the Code of Virginia by adding sections numbered
838-70.1 through 88-70.11, thereto providing for the taking of pos-
session and title to certain property by the State Highway Commis-
stoner before and during condemnation; and to repeal §§ 33-70 and
83-74 of the Code, relative to the same subject matter. 3 200
[

Approved March 29, 1958

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia be amended by adding thereto sections
numbered 33-70.1 through 38-70.11 as follows:

§ 33-70.1. In addition to the exercise of the power of eminent domain
prior to the entry upon land being condemned, as provided hereinabove,
the Commissioner is authorized to acquire title and to enter upon and take
possession of such property and rights of way, for the purposes set out
in § 33-57, as the Commissioner may deem necessary, and proceed with
the construction of such highway, such taking to be made pursuant to
the following sections.

It is the intention of these sections to provide that such property and
rights of way may, in the discretion of the Commissioner, be condemned
during or 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 con-
demnation proceedings shall be paid, and to provide that in all other
respects the provisions of this article shall apply, whether the property
and rights of way are condemned before, during or after the construction
of the highway. But the authorities constructing such highway under the
authority of these sections, shall use diligence to protect growing crops
and 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
condemnation is resorted to.

§ 33-70.2. The Commissioner shall pay into court, or to the clerk
thereof, such sum as he shall estimate to be the fair value of the land
taken, or interest therein sought, and damage done, before entering upon
such land pursuant to the foregoing section.

§ 38-70.8. A certificate issued by the State Highway Commissioner
and countersigned by the State Treasurer, stating that any sum or sums
of money designated therein will be paid pursuant to the order of court,
when filed with the court wherein condemnation proceedings are pending,
or are to be instituted, shall be deemed and held for the purpose of this
article to be payment into the custody of such court. Payment against
any such certificate so issued and countersigned, when ordered by the
court named therein, shall be paid by the State 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 Com-
missioner and a copy thereof shall be filed with the State Treasurer.

The Commissioner shall give notice to the owner or tenant of the free-
hold by registered mail, if known, that such certificate will be filed.

§ 33-70.4. The certificate of the Commissioner shall be recorded in
the clerk’s office of the court where deeds are recorded. Upon such recorda-
tion, the interest or estate of the owner of such property shall terminate
and the title to such property or interest or estate of the owner shall be
vested in the Commonwealth and such owner shall have such interest or
estate in the funds held on deposit by virtue of the certificate as he had
in the property taken or damaged, and all liens by deed of trust, judgment
or otherwise upon such property or estate or interest shall be transferred
to such funds. The title in the Commonwealth shall be defeasible until
the reaching of an agreement between the Commissioner and such owner,
as provided in § 33-70.11, or the compensation determined by condemna-
tion proceedings as hereinafter provided.

If the land affected by the certificate aforesaid is situate in two or
more counties or cities, the clerk of the court wherein the certificate is:
recorded, shall certify a copy of such certificate to the clerk of the court
of the counties or cities in which any portion of the land lies, who shall
record the same in his deed book and index it in the name of the person
who had the land before and also in the name of the Commonwealth.

§ 33-70.5. The certificate shall set forth the description of the land
or interest therein being taken or damaged, and the owner or owners,
if known.

§ 33-70.6. Any person or persons entitled thereto may, upon petition
to the court, be paid his or their pro rata share of the amount deposited
with the court pursuant to § 33-70.2. Proceedings for the distribution of
the fund so deposited shall be conducted mutatis mutandis as provided for
the distribution of an award paid into court in a condemnation proceed-
ings as now provided by law. Provided, however, that the acceptance of
such payment shall not limit the amount to be allowed by a commission
in a condemnation proceeding, nor limit the rights of any party or parties
to the proceeding to appeal from any decision therein. ,

Neither party to a condemnation proceeding shall be entitled to intro-
duce evidence of any amount deposited with the court by virtue of a
certificate of deposit, nor of any amount which has been accepted by any
party entitled thereto pursuant to this section.

The State Highway Commissioner shall be made a party to any pro-
ceeding instituted pursuant to this section.

§ 83-70.7. Upon the recordation of such certificate, no reformation,
alteration, or revision shall be made for any purpose without the prior
consent of the court wherein such certificate is recorded. At any time
before disbursement of all or any portion of the fund deposited by virtue
of such certificate, the court, or judge in vacation, shall have jurisdiction
to reform, alter, or amend any certificate to correct mistakes in such
certificate. In the event the description of the property affected by such
certificate is erroneous, or the name or names of the owner or owners
therein are found to be erroneous, or any other error exists with respect
to such certificate, the court may invalidate such certificate and direct
that an amended certificate be filed in lieu thereof. A petition filed by the
Commissioner with the court setting forth any error made in such cer-
tificate or the necessity of any change therein, shall be deemed sufficient
basis for the invalidation of such certificate. The order of the court
invalidating such certificate, together with a revised certificate which
may be necessary to correctly describe the property necessary for purposes
set out in § 33-57, the proper ownership thereof, or correct any other
error, shall be spread in the current deed book, and reference made showing
the book and page number of the order on the margin of the page wherein
the original certificate was spread. Nothing herein contained shall be
construed to prohibit or preclude any person damaged thereby, from
showing in the proper proceeding the damage suffered by reason of such
mistake or the invalidation of a certificate of deposit as herein provided..

§ 33-70.8. Notwithstanding any other law to the contrary, the clerk
of the court wherein any such certificate is filed shall receive the following
fees, and no other:

(1) For the filing of any petition as provided in §§ 33-70.6, 33-70.7
and 33-70.11, the clerk shall be entitled to a fee of fifty cents to be paid:
by the petitioner.

(2) For the recordation of such certificate or copy thereof, as well
as for any order of the court as herein provided, the clerk shall be entitled:
to a fee of two dollars and fifty cents, to be paid by the party upon whose
request such certificate is recorded or order is entered.

_ § 383-70.9. At any time after the recordation of such certificate, but
within sixty days after the completion of the construction of such highway,
if the Commissioner and the owner or owners of such lands or interest
therein taken or damaged by the Commissioner are unable to agree as to
the compensation or damages, if any, caused thereby, or such consent
cannot be obtained due to the incapacity of the owners or one or more of
them, or because such owner, or owners, be unknown or cannot with
reasonable diligence be found within this State, the Commissioner shall
institute condemnation proceedings, as provided in this article, unless
said proceedings shall have been instituted prior to the recordation of such
certificate. The amount of such compensation and damages, if any,
awarded to the owner or owners in such proceedings shall be paid out
of the appropriations to the Virginia Department of Highways. The
final order confirming the commissioners’ award shall confirm absolute
and indefeasible title to the land, or interest therein sought, in the Com-
monwealth and shall be spread in the current deed book and reference be
made showing the book and page number recordation on the margin of
the page where the certificate was spread.

§ 33-70.10. In the event of an award in a condemnation proceedings
being of a greater amount than that deposited by virtue of a certificate,
the excess amount, together with interest accrued on such excess amount
at the rate of five per centum per annum from the date of such deposit
to the date of payment into court, shall be paid into court for the person
or persons entitled thereto. In no other instance shall interest be allowed
on any award. In the event of an award in a condemnation proceeding
being of a lesser amount than that deposited with the court, the Commis-
sioner shall recover the amount of such excess and, if any person has been
paid a greater sum than that to which he is entitled as determined by the
award, judgment shall be entered for the Commissioner against such
person for the amount of such excess.

§ 33-70.11. At any time after the recordation of such certificate,
but prior to the institution of condemnation proceedings, if the Commis-
sioner and the owner, or owners of the land or interest therein taken or
damaged are able to agree as to compensation for the land taken and
damages, if any, caused by such taking, the Commissioner shall file with the
court a petition so stating, with a copy of the agreement attached. If
condemnation proceedings are already pending at the time of reaching
such agreement, no such petition shall be required, but the motion for dis-
missal of such proceedings shall contain an averment that such agreement
has been reached. Upon the filing of such a petition, or a motion to
dismiss, as herein provided, the court shall thereupon enter an order
confirming absolute and indefeasible title to the land or interest therein in
the Commonwealth. Such order shall be spread in the current deed book,
and reference be made showing the book and page number recordation on
the margin of the page where the certificate was spread. Upon entry of
such order, the Commissioner and State Treasurer shall be relieved of
further obligation by virtue of having filed such certificate of deposit
with the court.

If it shall appear from such petition and agreement, or motion to
dismiss a pending suit, that no person or persons other than those execut-
ing such agreement are entitled to the fund on deposit, the court shall
direct that such fund, after payment therefrom of any taxes which may
be charged against such land taken, be disbursed and distributed in accord-
ance with the statement or charge in the petition, or motion, among the
parties or persons entitled thereto. If it shall appear that a controversy