CHAPTER 426
sAn Act to repeal Chapter 1 of Title 25 of the Code of Virginia, contain-
ing §§ 25-1 through 25-46, relating to condemnation generally and
procedure in condemnation cases, and to amend the Code of Virginia
by adding in Title 25 a chapter numbered 1.1, containing sections
numbered 25-46.1 through 25-46.84, relating to the same matters.

{fH 194]
Approved March 31, 1962

Be it enacted by the General Assembly of Virginia
1. That the Code of Virginia be amended by aides ie in Title 25 a chapter
aaa 1.1 containing sections numbered 25-46.1 through 25-46.34, as
ollows:

CHAPTER 1.1
Condemnation Generally

§ 25-46.1. The short title of this chapter shall be the “Virginia Gen-
eral Condemnation Act”.

§ 25-46.2. Unless otherwise specifically provided by law, all proceed-
ings for the condemnation of property under the power of eminent domain
shall be brought and conducted according to the provisions of this chapter.

§ 25-46.3. As used in this chapter, unless otherwise clearly indicated
herein or required by the context, the term:

(a) “Court” means the court having jurisdiction and the judge or
judges thereof in vacation.

(b) “Date of valuation” means the time of the lawful taking by the
petitioner, or the date of the filing of the petition, whichever occurs first.

(c) “Land” means land, lands and real estate and all rights and ap-
purtenances thereto, together with the buildings and other improvements
thereon, and any right, title, interest, estate or claim in or to land, lands or
real estate.

) “Law” means any statute, general, special, private or local, of
this tate, including, but not limited to, the Code of Virginia or any section
ereof.

(e) “Person” may extend and be applied to bodies politic and cor-
porate as well as individuals.

(f) “Petitioner” means any person or public or private entity possess-
ing the power to exercise the right of eminent domain seeking to exercise
such power under this chapter.

(zg) “Property” means real and personal property, and land, and any
right, title, interest, estate or claim in or to such property.

(h) “State” or “Commonwealth’ means the Commonwealth of
Virginia.

§ 25-46.4. Jurisdiction of proceedings to condemn property under this
chapter shall be in the circuit court of the county or in the circuit or cor-
poration court of the city or any other city court of record having juris-
diction of condemnation proceedings wherein such property, or the greater
portion thereof proposed to be condemned is situated.

§ 25-46.5. No proceedings shall be taken to condemn property until
a bona fide but ineffectual effort has been made to acquire from the owner
by purchase the property sought to be condemned, except where such con-
sent cannot be obtained because of the incapacity of one or more of the
owners or because one or more of such owners is unable to convey legal
title to such property or is unknown or cannot with reasonable diligence
be found within this State.
§ 25-46.6. (a) Nothing in this chapter shall be so construed as to
authorize the condemnation or acquisition, except by the consent of the
General Assembly, of any lands belonging to, attached to the site, or used
for the purposes of any university, college, or other seminary of learning
owned and controlled by the Commonwealth, or any lands belonging to,
attached to the site, or used for the purposes of any State hospital, or the
institutions for the deaf and blind, or to authorize the condemnation of any
cemetery or burial ground, or any part thereof, established prior to the
date of the charter of the petitioner proposing to condemn. ;

(b) The lands of any university, incorporated college, or other sem1-
nary of learning, not owned and controlled by the Commonwealth,
be subject to condemnation for the purposes of public highways, except
that no part of such lands shall be condemned which are within five
hundred feet of any building erected and used for school purposes at the
time proceedings are instituted, nor through the land which surrounds the
school buildings and is used at such time as a campus, park, or athletic
ground or field in connection therewith.

§ 25-46.7. The petition for condemnation shall contain: __

(a) A caption wherein the person or entity vested by law with power
to exercise the right of eminent domain shall be the petitioner, and the
named defendants shall be at least one of the owners of some part of or
an interest in the property to be taken or damaged, and the property to
be taken designated generally by kind, quantity and location.

(b) Short and plain statements of the following: _.

1. The authority for the taking; provided, however, no public utility
shall be required to obtain, as a prerequisite to its filing of its petition
for the condemnation of property necessary for ordinary extensions or
improvements of its facilities within the territory in which it is lawfully
authorized to operate, for use in public utility service, a certificate from
the State Corporation Commission under the Utility Facilities Act, Chapter
10.1 of Title 56;

2. The necessity for the work or improvements to be made;

3. The public uses for which the property is to be taken;

4. A description of the work or improvements to be made; and where
only a portion of the property is to be taken or where any other property
will or is likely to be damaged as the result of the taking, a plat, drawing
or plan, in sufficient detail to disclose fairly the nature of such work or
improvements, including specifications, elevations and grade changes, if
any, so as to enable the owner of such property to be reasonably informed
of the nature, extent and effect of such taking and the construction and
operation of such works and improvements, shall be attached as an exhibit
to the petition;

5. The estate, interest or rights to be taken in the property;

6. A description of the property to be taken sufficient for its identi-
fication and a plan or plat of the land to be taken shall be attached as an
exhibit to the petition;

7. As to each separate piece of property to be taken or damaged, the
names and residences, so far as known by petitioner, of the defendants
who are joined as owners thereof, or of some interest therein, whose names
can be ascertained by a reasonably diligent search of the records, con-
sidering the character and value of the property involved and the interests
to be acquired, and also those whose names have otherwise been learned;
other persons or classes of persons, where the names are unknown, may
be made defendants under the designation of “Unknown Owners”;

8. Compliance with the provisions of § 25-46.5 and the manner of
such compliance; and

9. Where applicable, compliance with the provisions of § 25-233 and
the manner of such compliance.
(c) A prayer asking for judgment that the property or the estate,
interest or rights therein be condemned and the title thereto vested in the
petitioner, and that just compensation for the property to be taken and
the damages, if any, as a result of the taking and use by the petitioner,
beyond the peculiar benefits, if any, by reason of such taking and use by
the petitioner, be ascertained and awarded, and for such other relief as
may be lawful and proper. .

(d) Where applicable, there may be included in the petition facts and
circumstances on the basis of which the petitioner desires to obtain the
right of entry as provided in § 25-46.8 or as provided in any charter and a
prayer asking for such right of entry.

(e) The petition shall be verified by affidavit of a duly authorized
officer, agent or attorney for the petitioner.

f) There may be joined in the same petition one or more separate
pieces, tracts, parcels or lots of land, whether in the same or different
ownership and whether or not sought for the same use, provided, how-
ever, the court, on its own motion or on motion of any party in further-
ance of convenience or to avoid prejudice, may order a severance and
separate trial of any claim or claims or of any issue or issues.

(x) The petitioner shall furnish the clerk one copy of the petition
and all exhibits thereto and such additional copies of the petition as may
reasonably be needed by the clerk or any defendant.

§ 25-46.8. Unless otherwise provided by law, any petitioner may
enter upon the property to be condemned at any time after the filing of its
petition for condemnation and prior to the determination and deposit of
the award of just compensation in the manner provided in this chapter,
for the purpose of constructing its works or improvements thereon in the
manner proposed by the petitioner if, upon the petitioner’s application to
do so, the court, after twenty-one days notice thereof has been served on
the owners mutatis mutandis in the same manner as is provided in §§ 25-
46.9, 25-46.10, 25-46.11 and 25-46.12, and after a hearing thereon finds (1)
that a public necessity or an essential public convenience requires such
entry for such purposes, and that an emergency exists justifying such
entry, before the time when just compensation can be determined and the
amount so determined paid into court, and (2) that the interests of the
owners of such property will be adequately protected by the payment into
court for the benefit of the owners of the amount of the offer made in
accordance with § 25-46.5 and, in the discretion of the court, the giving of
a surety bond in an amount and with such surety as the court may deter-
mine. Upon such payment and the giving of such bond, if any is required,
with surety in the office of the clerk or with the court, conditioned as re-
quired by law and to the effect that the petitioner and its surety or sureties
are bound to the owners of the property to be taken or damaged to secure
to each of them payment of just compensation therefor as finally deter-
mined in the condemnation proceedings, the petitioner shall have the right
to enter and construct its works or improvements upon or through the
property as described in its petition. At any time after such payment into
court, a party whose property or interest therein is to be taken or damaged
may apply to the court for the withdrawal of his share thereof in the
manner provided in § 25-46.30.

At any time during the condemnation proceedings, if it appears neces-
sary so to do in order to protect the owners of the property or estate or
interest therein to be condemned and assure unto them the payment of
just compensation to which they are entitled, the court may require the
petitioner to give a new and additional bond in an amount and with sureties
satisfactory to the court.

If the petitioner enters upon the property under this section and
does any work thereon, or causes any injury or damage to such property,
it shall not thereafter be entitled, without the consent of the owner, to
abandon the proceedings for the condemnation thereof, but shall conduct
such proceedings with reasonable dispatch to final judgment and the peti-
tioner shall pay to the owner of the property or into court the amount
of just compensation as determined in the condemnation proceedings.

§ 25-46.9. Proceedings for condemnation shall be initiated by filing
the petition referred to in § 25-46.7 in the court, or in the clerk’s office
thereof, having jurisdiction under § 25-46.4. Upon the filing of such peti-
tion, the petitioner shall give the owners twenty-one days’ notice of the
filing of such petition and of its intention to apply to the court for the
appointment of commissioners to ascertain just compensation for the
property to be taken or affected as a result of the taking and use by the
petitioner of the estate, interest or rights to be so acquired. In such notice,
the petitioner may also give notice that an answer and grounds of defense
shall be filed setting forth any objection or defense to the taking or dam-
aging of his property or to the jurisdiction of the court to hear the case
and to proceed with the appointment of commissioners for the determina-
tion of such just compensation.

Such notice may also include notice of the petitioner’s application for
the right of entry as provided in § 25-46.8, whenever such application is
included in the petition.

Such notice shall be served on the owners, and within twenty-one
days of the service thereof any such owner who desires to assert any
objection or defense to the taking or damaging of his property or to the
jurisdiction of the court to hear the case and to proceed with the appoint-
ment of commissioners shall file his answer and grounds of defense de-
signating the property in which he claims to be interested, the grounds of
any objection or defense to the taking or damaging of his property or to
the jurisdiction of the court to hear the case and to proceed with the ap-
pointment of commissioners for the determination of just compensation.

Should any such owner fail to file an answer and 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 evidence as to valuation and damage nor from sharing in the
award of just compensation according to his interest therein or otherwise
protecting 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 answer and grounds
of defense may be extended by the court.

§ 25-46.10. Upon the filing of an affidavit by a duly authorized offi-
cer, agent or attorney for the petitioner stating that he believes any owner
cannot be personally served because after diligent inquiry within the
State such owner’s place of residence cannot be ascertained or, if ascer-
tained, that it is not within this State, service of the notice may be made
on such owner by an order of publication; such order shall be published in
a newspaper published in the county or city where the property or major
portion thereof is located, or if there is no such newspaper then in a news-
paper having a general circulation in such city or county, once a week for
not less than two successive calendar weeks and shall be posted on the
front door of the courthouse within ten days after the entry of the order
of publication. Unknown owners who may have an interest in the property
may be served by order of publication in like manner addressed to
“Unknown Owners”. The clerk shall mail a copy of the notice by publica-
tion to any owner who cannot be personally served but whose place of
residence is then known.

Except as otherwise provided in this chapter the publication shall in
all respects conform to §§ 8-71, 8-72 and 8-76 and the Rules of Court appli-
cable to orders of publication in equity proceedings.
§ 25-46.11. The form of the notice by publication, to which shall
be attached the signature of the clerk, or the deputy clerk for and on be-
half of the clerk, shall be substantially as follows:

Virginia: In the (here insert the name of the court)
Name of petitioner
In Chancery ..........-...---------

Vv.
Name of one or more defendants, et al.,
and (........... ..) acres, more or less, of land in
(city or county) Virginia.

To Whom It May Concern:

Pursuant to an order entered on the GQ y Of cee esseee cess cseseetteeeenee ,
19 ............., this notice is hereby given: ;

In this proceeding the petitioner seeks to acquire by condemnation
uu. (here state the estate, interest, or right to be acquired) to certain
pieces or parcels of land situated in... (county or city),
Virginia, for the uses and purposes of the petitioner 0a
(here state briefly the uses and purposes and nature of the works and im-
provements to be made), all of which are described more particularly in
the petition and exhibits attached thereto on file in the office of the clerk
of this court, to which reference is hereby made for a full and accurate
description thereof; and for the appointment of commissioners to ascer-
tain just compensation to the owners of any estate or interest in the
property to be taken or affected as a result of the taking and use thereof
by the petitioner.

For such purposes, the petitioner will apply to the court, sitting

| ae -» Virginia, On the nn, DRY OL one eaeeeeseeeeeee eee ;
19.0.0, at —........... o'clock ....m., or as soon thereafter as petitioner may
be heard, for the appointment of commissioners to ascertain just com-
pensation as aforesaid.
And it appearing by affidavit filed according to law that the follow-
ing owners are not residents of the State of Virginia, or their names and
addresses are not known and that diligence has been used by and on
behalf of the petitioner to ascertain such names and addresses without
effect: (here set out the names of such owners or classes of owners and
addresses where known), it is ORDERED that the aforesaid owners do
appear within ten (10) days after due publication of this order in the
clerk’s office of the (here insert the name of the court) and do what is
necessary to protect their interests; and it is further ORDERED that if any
of the above named owners desires to assert any objection or defense
to the taking or damaging of his property or to the jurisdiction of the
court to hear the case and to proceed with the appointment of commis-
sioners he shall file his answer and grounds of defense designating the
property in which he claims to be interested, the grounds of any objection
or defense to the taking or damaging of his property or to the jurisdiction
of the court to hear the case and to proceed with the appointment of com-
missioners for the determination of just compensation.

Should any such owner fail to file his answer and 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 evidence as to valuation and damage nor from sharing in the
award of just compensation according to his interest therein or otherwise
protecting his rights, but such failure shall preclude such owner from any
other defense by way of pleas in bar, abatement or otherwise.

An extract, Teste:

bere cbbseceuRe Oo

OD © MPS Ge ©

~ Clerk
(Here state name and address of counsel for petitioner)
Such notice by publication may also include notice of the petitioner’s
application for the right of entry as provided in § 25-46.8, whenever such
application is included in the petition.

§ 25-46.12. Personal service of the notice may be made by any person,
not a party to or otherwise interested in the subject matter in controversy,
on a nonresident owner out of this State and such service shall have the
same effect, and no other, as an order of publication duly executed, or the
publication of notice under this chapter, as the case may be. In such case
the return shall be made under oath, and shall show the time and place of
such service, that the party serving the same is not a party to or otherwise
interested in the subject matter in controversy, and that the person so
served is a nonresident of this State.

§ 25-46.13. If any owner is an infant or insane, incompetent, or a
convict and has no guardian or committee in this State, no notice need be
issued for or served upon him and a guardian ad litem for such owner
shall be appointed in the manner prescribed in § 8-88.

§ 25-46.14. No amendments shall be made to the petition or other
pleading after it is filed save by leave of court. Leave to amend for the
addition of new parties and for other purposes shall be liberally granted
in furtherance of the ends of justice. In granting leave to amend, the court
may make such provision for notice and opportunity to make response as
the court deems reasonable and proper.

§ 25-46.15. If an owner becomes incapable of defending because of
death, insanity, conviction of felony, removal from office, or other cause,
his successor in interest may be substituted as a party in his place. Substi-
tution shall be made on motion of the successor or of any party to the
proceedings. If the successor does not make or consent to the motion, the
party making the motion shall file it in the clerk’s office and the procedure
thereon and the service of notice of such motion, if any, shall be in what-
ever manner the court may require as reasonable and proper in the cir-
cumstances involved but in no event shall the period of time required for
any notice be greater than that which is prescribed for the notice in
§§ 25-46.9 or 25-46.10.

§ 25-46.16. Any person not already a party to the proceedings whose
property, or any interest or estate therein, is to be taken or damaged, or
who claims that his other property, or any interest therein will be damaged
as a result of the taking and use by the petitioner, may, upon his petition
for intervention filed by leave of court at any time prior to the beginning
of the trial of the issue of just compensation, or, in the discretion of the
court, at such other times during the pendency of the proceeding upon
such terms and conditions as the court deems proper, considering all the
circumstances at that time, be made a party to the proceeding and be per-
mitted to assert any claim or defense then germane to the proceeding in
accordance with the other provisions of this chapter upon such terms and
conditions as the court deems reasonable and proper.

§ 25-46.17. At the hearing upon the petition and application for the
appointment of commissioners made in accordance with § 25-46.9 if no
answer and grounds of defense has been filed objecting to the jurisdiction
of the court to hear the case and to proceed with the appointment of com-
missioners, the court shall enter an order fixing a date for the trial of the
issue of Just compensation and stating that such issue shall be determined
by a commission or by the court, as provided in § 25-46.19. If any answer
and grounds of defense has been filed objecting to the jurisdiction of the
court, the court shall determine such issues or other matters in controversy,
excepting the issue of just compensation or matters relating to the owner-
ship of any land or other property or the interests of any party in such
land or other property, and if the court determines all such issues or other
matters involving the jurisdiction of the court in favor of the petitioner,
the court shall enter an order fixing a date for the trial of the issue of just
compensation and stating that such issue shall be determined by a commis-
sion or by the court, as provided in § 25-46.19.

_ An order of the court in favor of the petitioner on any of the fore-
going preliminary issues or matters shall not be a final order for pur-
poses of appeal but an order against the petitioner on such issues or
matters shall be a final order for purposes of appeal, if the petitioner so
elects. If the order against the petitioner does not dismiss the petition, the
petitioner may elect to proceed with the case without waiving any of its
objections and exceptions to the rulings of the court.

At such hearing the court may also determine whether the petitioner
shall have the right of entry as provided in § 25-46.8.

§ 25-46.18. No delay in the proceeding for the determination of just
compensation shall be occasioned by the claims of the parties with respect
to the ownership of any land or other property or to the interests therein
of the respective parties, but in such cases the court shall require the
retention of the deposit of the award for the whole property, or the part
in dispute, until the rights of the respective parties have been determined
in the manner hereinafter provided in § 25-46.28; provided, however, the
court shall permit any such claimants to intervene as parties to the pro-
ceedings as provided in § 25-46.16.

§ 25-46.19. If the statute granting the power of eminent domain does
not specifically provide that a specially constituted tribunal shall determine
the issue of just compensation, such issue shall be determined by a com-
mission selected in the manner hereinafter provided in § 25-46.20. By
agreement of the petitioner and all the parties who are sui juris that have
appeared or answered, the issue of just compensation may be determined
by the court.

§ 25-46.20. If the issue of just compensation is to be determined by
a commission, the court shall summon nine disinterested freeholders, or
five disinterested freeholders if the parties so agree, who shall be residents
of the county or city wherein the property or the greater portion of the
property to be condemned is situated. If nine are summoned, the peti-
tioner and the owners 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 property to be taken and the damages, if any, to any other property
beyond the peculiar benefits, if any, to such other property by reason of
the taking and use thereof by the petitioner. 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 im-
partially ascertain what will be the value of the property to be taken and
the damages, if any, to any other property beyond the peculiar benefits, if
any, to such other property, by reason of such taking and use by the
petitioner.

§ 25-46.21. Upon the selection of the commissioners, the court shall
direct them, in the custody of the sheriff or sergeant or one of his deputies,
to view the property described in the petition with the owner and the
petitioner, 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 commissioners upon such view. Such view shall not be
considered by the commission or the court as the sole evidence in the case.
Upon completion of the view, the court shall hear the testimony in open
court on the issues joined. When the commissioners shall have arrived at
their conclusion 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
forthwith 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
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 improper 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 im-
proper conduct entered into the report of the commissioners, or no other
cause exists which would justify setting aside or modifying a jury verdict
in civil actions, the report shall be confirmed.

_ § 25-46.22. The commissioners appointed shall, for every day or por-
tion thereof they may be employed in the performance of their duties,
recelve 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 petitioner. The persons summoned
who appear, but are not appointed to serve as commissioners, shall be paid
an amount to be fixed by the court not to exceed five dollars for each day
they are summoned to appear.

§ 25-46.23. If the petitioner and the person whose property is being
condemned under the provisions of this chapter shall, before the report of
just compensation is made, enter into any contract in relation to building,
operating, or maintaining the proposed work, or in relation to fencing,
culverts, depots, stations, crossings, sidings, cattle-guards, damage from
fire, injury to or destruction of property, real or personal, or like matters,
and introduce such contract at the trial of the issue of just compensation,
such contract shall be accepted and made a part of the report of the award
of just compensation, and upon confirmation of such report shall there-
after run as a covenant with the land or with the interest or estate therein

en.

§ 25-46.24. Upon the return of the report of the commissioners or the
court, as the case may be, and the confirmation, alteration or modification
thereof in the manner provided in this chapter, the sum so ascertained by
the court as compensation and damages, if any, to the property owners
may be paid into court, upon which title to the property and rights con-
demned shall vest in the petitioner to the extent prayed for in the petition,
unless such title shall have already vested in the petitioner in a manner
otherwise provided by law, and the petitioner or its agents shall have the
right to enter and construct its works or improvements upon or through
the property described in its petition.

§ 25-46.25. Upon the return of the report of the Commissioners or the
court, as the case may be, and upon payment into court of the sum ascer-
tained therein, the petitioner or its agents may enter and construct its
works or improvements upon or through the property as described in its
petition, notwithstanding the pendency of proceedings on any objections
to such report in the trial court, or upon an appeal of the case, or the
ordering of a new trial of the issue of just compensation or otherwise. And
no order shall be made nor any injunction awarded by any court or judge
to stay the petitioner in the prosecution of its work unless it is manifest
that the petitioner or its agents are transcending their authority and that
the interposition of the court is necessary to prevent injury that cannot be
adequately compensated in damages.
_§ 25-46.26. The order confirming, altering or modifying the report
of just compensation shall be final. Any party aggrieved thereby may
apply for an appeal to the Supreme Court of Appeals and a supersedeas
may be granted in the same manner as is now provided by law and the
Rules of Court applicable to civil cases. An order setting aside the report
and awarding a new trial of the issue of just compensation shall not be a
final order for the purposes of appeal.

§ 25-46.27. The clerk of the court shall make and certify a copy of
so much of the orders, judgments and proceedings in the case as shall
show such condemnation, including a plat and description of the land or
other property, or the estate or interest in the land condemned, and any
such contract, if any there be, as is mentioned in § 25-46.23, and shall
have the same recorded in the deed book in the office of the clerk of the
court wherein deeds are recorded in such county or city, and indexed in
the names of the parties. If any portion of the land lies in two or more
counties or cities, or county and city, the clerk shall certify a copy of the
proceedings above mentioned to the clerk of the court of each such 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 petitioner.

§ 25-46.28. Upon the award being paid into court and the confirma-
tion of the report in the manner provided in § 25-46.24, the interest or
estate of the owner or owners in the property taken or damaged shall ter-
minate and they shall have such interest or estate in the fund so paid into
court as they had in the property so taken or damaged, and all liens by a
deed of trust, judgment or otherwise upon such property or any interest
therein shall be transferred to the fund so paid into court. If the court is
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 it appears from the record in the proceedings or otherwise that
the person or persons or classes of persons in the proceedings are vested
with the superior right or claim of title in the land or estate or interest
therein condemned, or in the proceeds of the award of just compensation,
and that the record does not disclose any denial or dispute thereof, by any
person or party in interest, the court may direct that the fund, after the
payment therefrom of any taxes, be disbursed and distributed accordingly
among the persons entitled thereto or to whomsoever they may by writing
direct; except that with respect to any persons appearing to be infants,
incompetent or under any other legal disability, the court may inquire into
their rights or claims, independent of any statement in the record, and
any order for distribution shall conserve and protect the rights 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
proceedings, to be paid by the petitioner.

f it appears to the court that there exists a controversy among
claimants to the fund, or to the ownership of the property subject to the
condemnation, 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
to determine the proper disposition of the fund, the court may appoint a
commissioner in chancery to take evidence upon 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 dis-
tribution thereof shall be taxed against the petitioner.

Upon a determination by the court of the rights and claims of the
persons entitled to the fund, an order shall be entered directing the dis-
bursement among the persons entitled thereto or to whomsoever they may
by writing direct. Any party aggrieved thereby may apply for an appeal
as provided in § 25-46.26.

§ 25-46.29. If the commission fails to report its award of Just com-
pensation within a reasonable time after the issue of just compensation 1s
submitted to it, or the commission reports that it is unable to make such
award, or the commissioners’ report is set aside, or a final order upon its
report has been set aside upon appeal and a new trial ordered, the court
shall, without further notice, as often as seems to it proper, appoint other
commissioners, and the matter may be proceeded in as hereinbefore pre-
scribed in this chapter.

If a new trial of the issue of just compensation is ordered, either in
the trial court or upon appeal, upon an exception by an owner with respect
to the insufficiency of the award of just compensation, and the subsequent
report of the award of just compensation, which is confirmed, is for the
same or a lesser total amount, the court shall tax all the costs of the new
trial against the owner making such exception and shall order repayment
to the petitioner of any sum paid to such owner out of the fund paid into
court by the petitioner in excess of the total sum ascertained by the second
report with interest thereon at the rate of five per centum per annum from
the date the original payment was made to such owner until the date such
excess is repaid to the petitioner; and if such owner fails to make such
repayment within thirty days from the date of the entry of such order, the
court shall enter judgment therefor against such owner.

§ 25-46.30. At any time after payment into court of the sum ascer-
tained in the report of the award of just compensation, notwithstanding
the fact that another trial of the issue of just compensation has been
ordered or an appeal has been taken from a final order upon the report as
provided in § 25-46.26, a party whose property or interest therein is to
be taken or damaged may apply to the court, in the manner hereinafter
provided, for the withdrawal pendente lite of all, or any portion of his
pro rata share, of the amount deposited for his interest in the property
to be taken or damaged. If such application requests withdrawal of an
amount in excess of fifty per cent of such owner’s pro rata share of the
amount deposited as aforesaid, the court may require the applicant, before
withdrawing any of such excess, to give or file a bond in the clerk’s office
with surety approved by the court or clerk, conditioned as required by law
to the effect that they are bound to the petitioner in such amount as fixed
by the court, but not to exceed double the amount of such excess, for the
return of the amount withdrawn that exceeds the amount to which the
owner is entitled as finally determined in the condemnation proceeding,
together with interest at the rate of five per centum per annum from the
date of the withdrawal of the amount in excess of fifty per cent of such
owner’s pro rata share of such amount deposited as aforesaid. Such
application shall be verified and shall set forth the owner’s interest in
the property to be taken or damaged and request withdrawal of a stated
amount; a copy of such application for withdrawal shall be served upon
the petitioner or its counsel of record. No order permitting such with-
drawal shall be entered until at least twenty-one days after service of such
application upon the petitioner without its consent. Within such twenty-
one day period the petitioner may object to such withdrawal by filing
written objections thereto in the clerk’s office on the grounds that the
amount of, or the sureties upon the proposed bond are insufficient or that
other persons are known or believed to have interests in such property,
and a copy of any such objections shall be served upon the applicant and
such y orher persons as have appeared or answered, or their attorneys of
record.
If any person appear and object to the proposed withdrawal, or if the
petitioner so requests, the court shall determine the amount to be with-
drawn, if any, and the persons entitled thereto, whereupon no other per-
son so served shall have any claim against the petitioner to the extent of
the amount so withdrawn. The court may follow the procedure prescribed
in § 25-46.28 for the determination of any controversy among any claim-
ants to the funds or to the ownership of the property subject to the con-
demnation and tax the costs thereof as therein provided.

In the event the award which is confirmed finally is for a lesser
amount than the amount paid into court, the petitioner shall recover the
amount of such excess and, if any person has been paid a greater sum
than that to which he is entitled, judgment shall be entered for the peti-
Honer against such person for the amount of such excess and any interest
thereon.

The amount of the petitioner’s deposit under §§ 25-46.8, 25-46.24 or
25-46.25 and the amount of such deposit withdrawn by any party in
accordance with the provisions of this section may not be given in evidence
or referred to in the trial of the issue of just compensation or be considered
by the court or upon appeal in determining whether the award is inade-
quate or excessive, nor limit the rights of any party to appeal from any
decision therein.

§ 25-46.81. (a) Where the petitioner has exercised pendente lite the
right to enter into and take possession of the land or other property, in the
manner provided by this chapter, upon the payment into court of the sum
ascertained in the report of just compensation as provided in § 25-46.25,
the owner thereof shall receive interest at the rate of five per centum per
annum upon the difference between the amount of just compensation as
finally determined and awarded to such owner and the amount, if any,
which such owner received or was entitled to receive, from the fund so
paid into court from the time of such entry by the petitioner until the
time the fund paid into court on account of the final award of just com-
pensation to such owner is available for distribution. No interest shall
be payable upon any amount which was withheld from such owner on
account of questions involving his right, title, interest or estate in the land
or other property taken or damaged.

(b) If the petitioner has exercised the right pendente lite to enter
into and take possession of the land or other property to be taken or
damaged as provided in § 25-46.8, the owner thereof shall receive, in
addition to what he is entitled to receive under paragraph (a) of this
section, interest at the rate of five per centum per annum upon the differ-
ence between the amount of the award of just compensation, as finally de-
termined and the amount previously paid into court as required under
§ 25-46.8 from the time of such entry until payment into court of the sum
ascertained in the report of just compensation as provided in § 25-46.24.

(c) No interest shall be allowed during the time any distribution
of the fund paid into court was delayed in the trial court or upon appeal,
or thereafter, occasioned by any exceptions made by such owner which
are not sustained in whole or in part.

(d) If the petitioner fails to pay into court any sum necessary for
paying the total award which has been confirmed finally or the interest te
which the owner is entitled under this section for a period of thirty days
after the time for noting an appeal, the court shall enter judgment therefor
against the petitioner, unless the proceedings have been dismissed in ac-
cordance with the provisions of § 25-46.34.

§ 25-46.32. Except as otherwise provided in this chapter, all costs of
the proceeding in the trial court which are fixed by statute shall be taxed
against the petitioner. The court may in its discretion tax as a cost a
fee for a survey for the landowner, such fee not to exceed fifty dollars.
All costs on appeal shall be assessed and assessable in the manner pro-
vided by law and the Rules of Court as in other civil cases.

§ 25-46.38. In any case in which the petitioner may be entitled under
the laws of this State to enter upon lands or other property for purposes
of making examinations or surveys as are authorized by law or to enter
upon land or other property in accordance with the provisions of this chap-
ter or condemn any land or other property or any interest or estate therein,
the sheriff or sergeant, whenever required, shall attend and remove, if
necessary, any forcible resistance to any such entry or taking.

§ 25-46.34. (a) If no hearing has begun in the trial of the issue of
just compensation for the taking or damaging of property or property
interest and the petitioner has not already acquired the title or a lesser
interest or estate in or taken possession of such property, the petitioner
may upon motion obtain, as a matter of right, an order dismissing the
proceeding as to such property.

(b) At any time after a hearing has begun in the trial of the issue
of just compensation for the taking or damaging of any property or prop-
erty interest, the petitioner not having already acquired the title or a
lesser interest or estate in or taken possession of such property, or paid
the amount of just compensation into court, and before the time for noting
an appeal from any final order upon a report of just compensation, the
petitioner may, upon motion, obtain as a matter of right an order dismiss-
ing the proceedings as to such property, which order shall also provide
that the petitioner shall pay such owner or owners for the following
expenses which have been actually incurred by them in such amounts
as the court deems just and reasonable: attorney’s fee, witness fees in-
cluding reasonable expert witness fees, not exceeding three, and other
reasonable expenses and compensation for time spent as a result of the
condemnation proceedings. If any such expenses are not paid within
thirty days of the entry of such order, judgment therefor shall be entered
against the petitioner.

(c) In the event the petitioner fails to pay to the parties entitled
thereto, or into court, the amount of the award of just compensation
before the time for noting an appeal from any final order upon the
report of just compensation, the owner or owners of the property to be
taken or affected may, upon motion, obtain as a matter of right an order
dismissing the proceeding as to such property, which order shall also
provide that the petitioner shall pay such owner or owners for his expenses
as provided in paragraph (b) of this section. If any such expenses are not
paid within thirty days of the entry of such order, judgment therefor shall
be entered against the petitioner.

(d) Before the vesting of title, or a lesser interest or estate in any
tract or parcel of land in the manner prescribed in this chapter, the pro-
ceedings may be dismissed, in whole or in part, as to any such property
upon the filing of a stipulation of dismissal by the parties affected thereby;
and, if such parties so stipulate, the court may vacate any order that has
been entered.

(e) Except as otherwise provided in a stipulation of dismissal or
order of the court, any dismissal is without prejudice.

(f) The court may at any time drop a defendant unnecessarily or
improperly joined.

2. This Act shall not apply to any condemnation proceedings which
has been instituted prior to the effective date of this Act. Any such action
commenced under Chapter 1 of Title 25 as in force on January one, nine-
teen hundred sixty-two shall be continued thereunder and the repeal of
Chapter 1 of Title 25 by this Act is subject to this exception.

3. If a court of competent jurisdiction shall adjudge to be invalid or
unconstitutional any clause, sentence, paragraph, section or part of this
Act, or shall adjudge any provision to be inoperative in particular cir-
cumstances because of the exertion of federal power, such Judgment or
decree shall not affect, impair, invalidate or nullify the remainder of this
Act, or the operation of such provision in other circumstances, but the
effect thereof shall be confined to the clause, sentence, paragraph, section
or part of this Act so adjudged to be invalid or unconstitutional or the
particular circumstances so in issue. ;

4. That Chapter 1 of Title 25 of the Code of Virginia, containing
§§ 25-1 through 25-46, and all other acts and parts of acts in conflict with
this Act, to the extent of such conflict, are repealed; provided, however,
nothing contained in this chapter shall be construed to repeal, amend, im-
pair or affect any provision of any charter of any city or town.