State Highway & Transportation Commissioner v. Dennison

343 S.E.2d 324, 231 Va. 239, 1986 Va. LEXIS 185
CourtSupreme Court of Virginia
DecidedApril 25, 1986
DocketRecord No. 821916
StatusPublished
Cited by11 cases

This text of 343 S.E.2d 324 (State Highway & Transportation Commissioner v. Dennison) 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
State Highway & Transportation Commissioner v. Dennison, 343 S.E.2d 324, 231 Va. 239, 1986 Va. LEXIS 185 (Va. 1986).

Opinion

POFF, J.,

delivered the opinion of the Court.

This is an appeal from a judgment confirming an award in an eminent domain proceeding. The State Highway and Transportation Commissioner of Virginia (the Commissioner) contends that the trial court should have struck two members of the panel of commissioners for cause and assigns error to certain evidentiary rulings.

[241]*241Jack A. Dennison and Evelyn I. Dennison (the landowners) held title to two adjacent parcels of land lying between U.S. Route 23 and State Route 727 near the Tennessee border. Route 727 is a two-lane road, and Route 23 is divided by a median strip into four lanes. The highways serve north-south traffic and, at this point, they are parallel and only 60 feet apart. On November 7, 1978, the Commissioner recorded a certificate condemning a portion of the landowners’ southern parcel. The take was required in order to construct a cross road connecting the two highways.

The landowners’ southern parcel contained 0.25 acre and fronted 174 feet on Route 23 and 190 feet on Route 727. The take, which consisted of 0.08 acre in fee simple and a drainage easement over 0.01 acre, was situated at the southern end of the southern parcel at a point formerly used as an entrance to that parcel from Route 23. The entrance was opposite an opening in the median strip. The take reduced the landowners’ frontage on Route 23 by 62 feet. The take and a six-inch curb erected along its borders eliminated use of the former entrance.

The Commissioner filed a petition in the court below on July 10, 1979, and trial was conducted on March 31, 1982. The Commissioner’s expert witness fixed the value of the take at $6,675.00 and the damage to the residue at $6,925.00. George Howard and Jerry Deskins, two expert witnesses called by the landowners, estimated the value of the take at $34,100.00 and $39,395.66, respectively, and the damage to the residue at $22,400.00 and $39,395.66, respectively. The commissioners viewed the property and returned an award of $35,000.00 for the take and $37,000.00 for the damage to the residue. The trial court overruled the Commissioner’s exceptions and entered judgment confirming the award.

Over the Commissioner’s challenges for cause, the trial court selected two prospective commissioners as members of the panel of nine, and the Commissioner assigns error to the rulings. Jerry McMurray identified himself as an insurance agent and acknowledged that he was Mr. Dennison’s personal friend. He stated that he had sold certain personal insurance policies to Mr. Dennison but carried no business insurance on his property. Burl Jennings testified that Mr. Dennison was a personal friend and that he had built three additions to the tobacco warehouse located on the northern parcel adjacent to the parcel subject to the take. He had not had any business relations with the landowners for more than [242]*242three years. Responding to questions on voir dire, McMurray and Jennings stated that they had no interest, direct or indirect, in the outcome of the case, had not formed any opinion on the issues, and were not sensible of any bias or prejudice which would prevent them from making a fair and impartial award of compensation and damages according to the law and evidence. The trial court denied the Commissioner’s challenges, and the Commissioner removed them by peremptory strikes.

Noting that both were Mr. Dennison’s friends, the Commissioner suggests on brief that “[i]t is only reasonable to wonder whether future maintenance of [McMurray’s] insurance contracts could indeed be related to a favorable award in the instant case . . . [and] whether an unfavorable award in the instant case would affect [Jennings’] opportunity to secure a subsequent construction contract with the landowners.”

The power to condemn private property for public use, an incident of sovereignty, implicates the rights and obligations of the individual citizen and those of the body politic as well. “Black acre” is hallowed ground, but the owner’s rights must sometimes yield to the public need. The constitution strikes an equitable balance. “[T]he General Assembly shall not pass any law . . . whereby private property shall be taken or damaged for public uses, without just compensation . . . .” Va. Const, art. 1, § 11. The eminent domain statutes are designed to implement the constitutional mandate, and they must be administered in a manner which promotes confidence in the integrity of the process. Compensation must be just to the condemnor and condemnee alike. The condemnee must be fairly compensated for what is taken, and the condemnor must never be penalized because it has a “deep pocket”.

In Virginia, commissioners determine what compensation is just unless otherwise provided by the statute granting the power of eminent domain. Code § 25-46.19. The procedure for calling and seating a commission is prescribed in Code § 25-46.20. If the parties are unable to agree on a panel of five or nine disinterested free holders, each party is allowed to submit a list of at least six prospective commissioners. After ruling on challenges for cause, the court summons nine persons to serve on the panel. Thereafter, each party is entitled to two peremptory strikes. Inasmuch as a party to a condemnation proceeding is unlikely to select an enemy as a prospective commissioner, it is clear that the General Assem[243]*243bly concluded that friendship, standing alone, is not sufficient grounds for disqualification.

The Commissioner’s principal concern was not the personal relationships but the business relationships the landowners had with McMurray and Jennings. We agree that a person’s financial interest may be so intimately related to an issue at trial that he cannot sit indifferent in the cause. For example, in May v. Crockett, 202 Va. 438, 117 S.E.2d 648 (1961), we decided that the trial court should have excluded one of the commissioners because he owned property adjoining the property to be condemned and held an equitable interest in other property in the same project on which condemnation proceedings were pending. See also Salina v. Commonwealth, 217 Va. 92, 225 S.E.2d 199 (1976) (bank stockholder not qualified as juror to try charge of larceny from bank). On the other hand, we have approved the seating of a juror who was the plaintiffs friend and family physician. Chesapeake & O. R. Co. v. Smith, 103 Va. 326, 49 S.E. 487 (1905). And, in Deal v. Nix & Son, Inc., 206 Va. 57, 63-64, 141 S.E.2d 683, 688 (1965), we upheld a trial court’s ruling that a prospective juror who “was ‘dealing with’ the plaintiff at the time of trial” was qualified to serve.

McMurray had sold Mr. Dennison some personal insurance policies some time before the take, and Jennings had done some construction work for him three years before the take. Neither had any financial interest related to the issue they were called upon to decide. Each testified that he could serve impartially. Following a comprehensive voir dire, the trial court concluded that both were qualified. Exclusion for cause is “a matter within the sound discretion of the trial court”, Waye v. Commonwealth, 219 Va. 683, 690, 251 S.E.2d 202, 206, cert. denied, 442 U.S.

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STATE HIGHWAY AND TRANSP. COM'R v. Dennison
343 S.E.2d 324 (Supreme Court of Virginia, 1986)

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Bluebook (online)
343 S.E.2d 324, 231 Va. 239, 1986 Va. LEXIS 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-highway-transportation-commissioner-v-dennison-va-1986.