Smith v. Board of Supervisors

109 S.E.2d 501, 201 Va. 87, 1959 Va. LEXIS 197
CourtSupreme Court of Virginia
DecidedJune 22, 1959
DocketRecord No. 4945
StatusPublished
Cited by14 cases

This text of 109 S.E.2d 501 (Smith v. Board of Supervisors) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Board of Supervisors, 109 S.E.2d 501, 201 Va. 87, 1959 Va. LEXIS 197 (Va. 1959).

Opinion

Whittle, J.,

delivered the opinion of the court.

This case involves an appeal from an order of the Circuit Court of Franklin County which determined, pursuant to § 33-76.9, Code of Virginia, 1950, as amended, that public necessity did not exist for continuance, and the welfare of the public would be served best by the abandonment, of three sections of secondary roads and bridges in Franklin County. These roads and bridges had been previously ordered abandoned by the Board of Supervisors of the county pursuant to § 33-76.8, Code of 1950 as amended.

The parties to this appeal are appellants, Gladys Smith and twelve other citizens of Franklin County who are allegedly affected by the abandonment of the roads and bridges, and appellees, the Board of Supervisors of Franklin County and the Appalachian Power Company.

The record discloses that the background of the litigation results from the fact that the Appalachian Power Company, hereinafter called Appalachian, was granted a license on June 5, 1958, by the State Corporation Commission of Virginia to construct a $42,000,000 hydro-electric project on Roanoke River in the counties of Bedford, Pittsylvania, Campbell, Franklin and Roanoke. A preliminary permit had previously been obtained from the Federal Power Commission to make all necessary investigations and studies preparatory to filing an application for a license under the Federal Power Act. The proceeding to obtain the Federal license is now pending before the Federal Power Commission.

The project will eventually include two separate dams on Roanoke River; however, only the dam at Smith Mountain in Bedford [89]*89and Pittsylvania counties and the reservoir necessary thereto are material to this case. The proposed dam will be about 600 feet in length; the height up to the spillway will be 200 feet; the elevation of the spillway will be 795 feet above mean sea level, and water will flow over at that elevation. The dam will flood approximately 20,000 acres of land in the three counties of Bedford, Pittsylvania and Franklin.

The record, maps and other exhibits filed in the case disclose that the impounded waters from the dam will flood forty-two sections of the State secondary system of highways as follows: twelve sections in Bedford county; two sections in Pittsylvania County; and twenty-eight sections in Franklin County. The sections of road in Bedford and Pittsylvania counties have been ordered abandoned by their respective Boards, which orders are now final.

The Franklin County Board duly ordered the abandonment of the twenty-eight sections of road in that county.- There was no appeal with respect to twenty-five of the sections. Appellants appealed to the Circuit Court (Code, § 33-76.9) with respect to three of the twenty-eight sections which include and have been designated as Kemp’s Ford Bridge, Dudley’s Ford Bridge, and Craft’s Ford Bridge, these being the three sections of road involved on this appeal.

The Franklin County Board issued an order abandoning the three sections involved, in compliance with Code, § 33-76.8', which gives the Board authority to abandon a secondary road if it is “# # * satisfied that no public necessity exists for the continuance of the section” or * * that the welfare of the public would be served best by abandoning the section of road.” It will be noted that the statute is in the disjunctive, and the road may be abandoned if either requirement is met.

Before acting in the matter, the Board of Supervisors secured the advice of representatives of the State Highway Department and held numerous hearings, including the statutory public hearing (Code, § 33-76.8), and thereafter, on October 21, 1957, entered its order abandoning the three roads. The Board was satisfied as to both requirements, i.e., (1) that no public necessity existed for continuing the three sections of road, and (2) that the welfare of the public would be served best by their abandonment.

On appeal from this order, as provided by Code, § 33-76.9, the case was tried de novo by the judge of the Circuit Court. The evidence was fully developed by numerous witnesses and many ex[90]*90hibits which pictured the entire situation. On February 28, 1958, the judge delivered his decision to the effect that two of the sections of road involved, Kemp’s Ford Bridge and Dudley’s Ford Bridge, should be abandoned, reserving his decision as to the third section involving Craft’s Ford Bridge in order that he might be given an opportunity to further investigate this element of the case. On March 11, 1958, the court decided that the Craft’s Ford Bridge section should also be abandoned and ordered the abandonment of the three sections upon the condition that certain other roads be constructed and improved in order that appellants and the public generally be protected.

The significant issues in the case are the statutory requirements as to “whether public necessity exists for the continuance of” the sections of road, or “whether the welfare of the public will be served best by abandoning” them. The significant issues and the collateral issues raised by appellants will be treated in the order presented.

As to the public necessity for continuing the roads here in question, looking at the project in its entirety as presented by the maps, plans and the evidence, there can be no question that when the court’s order is carried out and other roads and bridges are constructed to supplant the ones abandoned, no public necessity will exist for their continuance. The record discloses that the new roads will cost the Appalachian approximately $1,000,000, and they will amply serve the rural mail routes, the school busses, the appellants, and the public in general.

As aforesaid, in addition to finding that “no public necessity will exist for the continuance of said sections of road”, the court also found “the welfare of the public will be served best by # * # the abandonment of these sections of road.” As stated, the statutory provisions are in the disjunctive, and the building of the dam and the road abandonments are necessarily connected enterprises.

It is not challenged that the construction of this great hydro-electric plant will inure to the benefit of the citizens of Franklin County and to the public generally.

We are urged by appellants not to adopt the Federal concept of the term “public welfare.” This we are not doing. We adopt our own concept of the phrase. Strictly speaking, the phrase “public welfare” is difficult of definition. It is broader than “necessity”, and in this instance serves only as an additional ground for the court’s abandonment of the roads. The whole scheme of things, gleaned from the record and the exhibits, shows that the abandonment of the roads [91]*91will inure to the prosperity, well-being, and convenience of the public at large, as distinguished from the advantage of individuals or a limited class, and there was ample evidence from which the court could so find.

We have repeatedly held that the judgment of the trial court on questions of fact is entitled to great weight and will not be disturbed unless it is plainly wrong or without evidence to support it. § 8-491, Code of Virginia, 1950. Where the conclusion depends upon the weight to be given credible evidence, the decree or order based thereon has the same effect as the verdict of a jury and will be affirmed although there may be conflicts in the evidence. Worrie v. Boze, 191 Va. 916, 923, 62 S. E. 2d 876, 879; Van Winckel

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Smith v. BOARD OF SUPERVISORS OF FRANKLIN COUNTY
109 S.E.2d 501 (Supreme Court of Virginia, 1959)

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Bluebook (online)
109 S.E.2d 501, 201 Va. 87, 1959 Va. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-board-of-supervisors-va-1959.