CHAPTER 491

An Act to amend the Code of Virginia by adding thereto §8§ 33-57.2
88-59.1, 83-60.1, 83-60.2, 38-60.8, 88-62.1, 83-63.1, 33-65.1, 33-67.1,
and $3-67.2; to amend and reenact §§ 38-58, 38-59, 33-64 as amended,
33-65 and 838-67, relating to the exercise of the power of eminent
domain by the State Highway Commissioner; to repeal §§ 33-60,
38-62, and 83-63, relating to the same subject; and to provide that
certain municipal corporations may exercise the power of condemna-
tion in accordance with the procedure herein provided. rH 824]

Approved March 31, 1960

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia be amended by adding thereto §§ 33-57.2,
33-59.1, 33-60.1, 33-60.2, 33-60.3, 33-62.1, 33-63.1, 33-65.1, 33-67.1 and
33-67.2, and that §§ 33-58, 33-59, 33-64 as amended, 33-65 and 33-67 be
amended and reenacted, as follows:

§ 88-57.2. The State Highway Commissioner, through his duly
authorized officers, agents, or servants, may enter upon any land in the
Commonwealth for the purposes of making examination and survey
thereof, with a view to ascertainment of its suitability for highway pur-
poses, or for any other purpose incidental thereto. Such officers, agents,
or servants shall exercise care to protect any improvements, growing
crops, or timber in making such examination or survey.

In the event that the Commissioner and any landowner affected can-
not agree as to the amount of damage, if any, sustained by reason of the
entry upon land for the purposes herein stated, the Commissioner shall
institute condemnation proceedings, as hereinafter provided in this chap-
ter, for the purpose of determining the amount of such damage, if any.

§ 33-58. Whenever any public utility company owns any land or
any easement, right of way or other interest in land which the Commis-
sioner deems necessary and intends to acquire for any highway project
and such land, easement, right of way or other interest in land owned by
the public utility company is devoted to a public use, the Commissioner
may acquire by gift, purchase or by the exercise of the power of eminent
domain additional land or * easement, right of way or interest in land
adjacent to or approximately adjacent to such land needed and proposed
to be acquired for such highway project and may then convey the same
to the public utility company for use by it in lieu of the land, easement,
right of way or other interest in land theretofore owned by it but needed
by the Commissioner for such highway project. The condemnation of such
land, easement, rights of way or other interest in land to be conveyed to
any public utility company shall be governed by the procedure prescribed
by this article and may be carried out at the same time if against the
same property owner and if against the same landowner or in the same
proceedings in which land is condemned for highway purposes. The Com-
missioner may, under the same procedure and conditions prescribed by
this article, with respect to property needed for highway purposes,
enter upon and take possession of such property to be conveyed to any
public utility company * in the manner provided in §§ 33-70.1 through
88-70.11 of the Code, and proceed with the relocation of the installations
of the public utility company in order that the construction of the high-
way project may be carried out without delay.

After the acquisition of the land, easement, right of way, or other
interest in land of public utility companies, and the acquisition of the addi-
tional land, easement, right of way or other interest in land for such utility
companies as hereinabove provided for, in the event the poles, lines or
other facilities are not removed by such utility companies within sixty
days from the date of the taking by the Commissioner, the Commissioner
ts hereby vested with the power to remove and relocate such facilities at
his own cost.

_ __§ 33-59. Proceedings for condemnation under this article shall be
instituted and conducted in the name of the State Highway Commissioner
me rhe procedure shall * be in accordance with the provisions of this
article.

§ $3-59.1. No proceedings shall be taken to condemn land or other
property, nor any interest therein, until a bona fide but ineffectual effort
has been made to acquire the same from the owner or owners thereof by
purchase, except where consent cannot be obtained because of the inca-
pacity of one or more owners, or one or more of them will not or cannot
convey legal title or because such owner, or owners, be unknown or cannot
with reasonable diligence be found within this State.

§ 88-60.1. The proceedings for such condemnation shall be by pe-
tition for the appointment of commissioners to the circuit court of the
county, or the court of any city which is vested with jurisdiction of emt-
nent domain proceedings, in which the land, property and rights, or the
major portion thereof sought to be acquired is located, or to the judge of
such court in vacation. The petition shall set forth with reasonable par-
ticularity a description and designation of the interests, rights and prop-
erty intended to be taken, the name or names of the owners 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.

§ 33-60.2. There shall be filed with such petition a plat of the project
plan, with a profile showing the cuts and fills, together with the grade of
the proposed highway.

§ 33-60.8. Upon or after the filing of the petition as provided for
hereinabove, the Commissioner shall give twenty-one days notice to the
owner or owners or the tenant or tenants of his intention to apply to the
court for the appointment of commissioners to ascertain what will be a
just compensation for the land or for the interest or estate therein, pro-
posed to be condemned and to award damages, if any, resulting to the
adjacent or remaining property of the owner by reason of the taking. The
Commissioner may, in his notice provided for herein, also give notice that
grounds of defense shall be filed, if the Commissioner be of the opinion
that grounds of defense are necessary or desirable.

Such notice shall be served on the owner or owners or the tenant or
tenants of the freehold.

§ 83-62.1. Within twenty-one days from the service of the notice
provided for in § 88-60.3 the owner or owners may file, or if notified so to
do by the Commissioner as hereinabove provided, shall file, in writing,
grounds of defense, such grounds of defense to include valuations of the
land and interest to be taken and appraisal of any damages which may
result to the residue by reason of the taking.

Should the owner fail to file such grounds of defense as hereinabove
provided, such failure shall not preclude the owner from appearing on the
date set for the appointment of commissioners nor from presenting evi-
dence as to valuation and damage and to otherwise protect his rights,
but such failure shall preclude such owner from any other defense by way
of pleas in bar, abatement, or otherwise. Provided, however, for good.
cause shown, the time for filing such grounds of defense may be extended
by the court.

§ 38-68.1. Upon or after the expiration of twenty-one days from
the return date of the notice for appointment of commissioners as provided
for in § 88-60.8, the court or the judge thereof in vacation, shall, upon
motion of the Commissioner or the owner summon nine disinterested free-
holders, or five disinterested freeholders if the parties so agree, who shall
be residents of the county or city wherein the land or the greater portion
thereof to be condemned is situate. If nine are summoned, the Commis-
sioner and the landowner shall each have two peremptory challenges and
the remaining five, or the original five if only five are summoned, shall be
appointed, any three or more of whom may act, and shall fix the value of
the land taken and damages, if any, which may accrue to the residue,
beyond the enhancement in value, if any, to such residue, by reason of the
taking. Before executing their duties, the commissioners shall take an oath
before some officer authorized by the laws of this State to administer an
oath, that they will faithfully and impartially ascertain what will be the
value of the land taken, and the damages, tf any, which may accrue to the
residue, beyond the enhancement in value, if any, to such residue, by
reason of the taking.

§ 33-64. 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, to view the land described in the petition with the
landowner and the State Highway Commissioner, or any representative
of either party, and none other, unless otherwise directed by the court;
and, upon motion of either party, the judge shall accompany the commis-
sioners upon their view of the land. Upon 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 con-
clusion they shall make their report in writing to the court, or to the
judge thereof in vacation. The report may be confirmed or set aside forth-
with by the court, or the judge, as the case may be, provided that when the
report is so filed and before the court or judge passes thereon, either party
shall have the right * to file written exceptions to the report, which shall
be filed not later than ten days after the rendering of the report by the
commissioners. The court or the judge, as the case may be, shall have the
same power over the commissioners’ reports as it now has over verdicts
of juries in civil actions.

Upon hearing of exceptions to the commissioners’ report the court,
or the judge in vacation, shall not recall and question the commissioners
as to the manner in which their report was determined unless there be
an allegation in such written exceptions that fraud, collusion, corruption
or wmproper conduct entered into the report. If such allegation is made
the judge shall summon the commissioners to appear and he alone shall
question them concerning their actions. If the court be satisfied that fraud,
collusion, corruption or improper conduct entered into the report of the
commissioners, the report shall be set aside and new commissioners
appointed to rehear the case.

If the court be satisfied that no such fraud, collusion, corruption or
improper conduct entered into the report of commissioners, or no other
cause exists which would justify setting aside or modifying a jury verdict
in civil actions, the report shall be confirmed.

§ 33-65. All costs of the proceedings in the trial court under this
article which are fixed by statute shall be taxed as any other suit in equity
and shall be borne by the * Commissioner. The court may in its discretion
ca a cost a fee for a survey for the owner, such fee not to exceed fifty

ollars.

§ 38-65.1. The commissioners appointed shall, for every day or por-
tion thereof they may be employed in the performance of their duties,
receive compensation in an amount to be fixed by the court at not more
than twenty dollars per diem, regardless of the number of cases heard on
any particular day, to be paid by the Olale Ugnway ven
persons summoned who appear, but are not appointed to serve as com-
missioners, shall be paid an amount to be fixed by the court not to exceed
five dollars for each day they are summoned to appear. .

§ 33-67. Upon the return of the report of the commissioners ~ ap-
pointed in such proceedings and the confirmation, alteration or modification
thereof in the manner provided in this article, the sum so ascertained by
the court as compensation and damages, if any, to the property owners may
be paid * 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 the petition, unless such
title shall have vested in the Commonwealth pursuant to the provisions of
§§ °3-70.1 through $8-70.11 of the Code, and the Commissioner or his
agent shall have the right to enter upon the construction upon, or use of,
the property and rights condemned as may be authorized by the report.

§ 38-67.1. The clerk of the court wherein condemnation is had, shall
make and certify a copy of so much of the orders, judgments and proceed-
ings in the case as shall show such condemnation, including therein a plat
and description of the land, or the estate or interest in the land, condemned,
and shall record the same in his deed book; provided, that such plat may be
recorded in the State Highway Plat Book in the clerk’s office, unless such
plat be already of record; in either case the same shall be indexed tn the
names of the parties. In the event any portion of the land les in two or
more counties or cities, the clerk shall certify a copy of the proceedings
above mentioned to the clerk of the court of each county or city and such
clerks shall record and index the same as above provided. The fees of the
clerk for recording shall be the same as for recording a deed, and such fees
shall be paid by the Commissioner.

§ 88-67.2. Upon the award being paid into court or to the clerk
thereof, and the court being satisfied that the persons having an interest
therein are before the court, the court shall make such distribution of such
money as to it may seem proper, having due regard to the interest of all
persons therein, and in what proportions such money is properly payable.

_ If tt shall appear that the petition for the appointment of commis-
stoners states the person or persons or classes of persons, who, in the
opinion of the Commissioner, are vested with the superior right or claim
of title in the land or estate or interest therein condemned, or in the pro-
ceeds of the award of commissioners, and that the record does not dis-
close any denial or dispute, by any person or party in interest, of such
statement in the petition, the court may direct that the fund, after the
payment therefrom of any taxes, be disbursed and distributed in accord-
ance with the statement in the petition, among the persons entitled thereto;
except that with respect to any persons appearing to be infants, insane or
under any other legal disability, the court may inquire into their rights or
claims, independent of any statement in the petition, and any order for
distribution shall conserve and protect the right of such parties in and to
the fund. The cost of a commissioner in chancery appointed by the court
to assist in making the proper distribution in cases of legal disability as
herein set forth may be taxed as a cost of the proceeding, to be pard by
the State Highway Commissioner.

If it shall appear to the court that there exists a controversy among
claimants to the fund, or to the ownership of the land subject to the con-
demnation, the court shall enter an order setting a time for hearing the
case and determining the rights and claims of all persons entitled to the
fund or to any interest or share therein. In order to enable the court in
determining a proper disposition of the fund, the court may appoint a
commissioner in chancery to take evidence of the conflicting claims. No
costs incident to or arising out of a trial or a determination of such issues
or out of a determination of the ownership of the fund or the distribution
thereof shall be taxed against the State Highway Commissioner.

Upon a determination by the court of the rights and claims of the

persons entitled to the fund, judgment shall be entered directing the dis-
bursement among the persons entitled thereto. Any party believing him-
self aggrieved thereby may apply for writ of error as provided in § 38-66
of the Code.
2. That any municipal corporation having been granted the power to
acquire land or any interest therein by condemnation proceedings in
accordance with the procedure provided in §§ 33-59 through 33-70 of the
Code may exercise such power in accordance with the procedure set forth
hereinabove.

38. That §§ 33-60, 33-62 and 33-63 are repealed.