State Highway & Transportation Commissioner v. Linsly

290 S.E.2d 834, 223 Va. 437, 1982 Va. LEXIS 222
CourtSupreme Court of Virginia
DecidedApril 30, 1982
DocketRecord No. 800774
StatusPublished
Cited by17 cases

This text of 290 S.E.2d 834 (State Highway & Transportation Commissioner v. Linsly) 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. Linsly, 290 S.E.2d 834, 223 Va. 437, 1982 Va. LEXIS 222 (Va. 1982).

Opinion

COCHRAN, J.,

delivered the opinion of the Court.

The State Highway and Transportation Commissioner, in the exercise of the right of eminent domain, acquired from John H. Linsly and Jean B. Linsly title to certain land and easements required to convert part of an existing highway into a limited access highway.1 Under Code § 33.1-59, when the State Highway Commission designates any part of an existing highway as a limited access highway the Commission is required, where necessary, to “extinguish all existing easements of access, light or air.”

In his condemnation petition filed in the trial court, the Commissioner asked for the appointment of commissioners to determine the value of the land and easements taken, and the damage, if any, to the residue, over any enhancement in value.2 The petition described by metes and bounds and by attached plat a parcel of 0.48 acre, more or less, and easements of access, light or air of the same parcel as incident to the lands of the landowners abutting upon the proposed limited access highway. The parcel of 0.48 acre, containing commercial buildings, was part of the landowners’ tract of 2.247 acres fronting on the existing highway, Route 17, a distance of 189 feet. Acquisition by the Commissioner of the land and easements resulted in elimination of the landowners’ direct access to Route 17, including the blocking of an appurtenant easement of right-of-way twenty feet in width extending along the north side of the parcel to Route 17. The Commissioner planned to substitute, in lieu of direct access, indirect access to the remaining 1.767 acres by means of a service road to be constructed by [440]*440the Commissioner.3 On appeal, the dispositive question is whether the trial court erred in permitting the condemnation commissioners to consider this change of access in determining their award of just compensation.

After viewing the property, the condemnation commissioners appointed by the trial court heard the testimony of witnesses. One expert, Thomas H. Morrison, testified for the Commissioner, and two, Claude J. Wilson and James W. Smith, testified for the landowners. All three agreed that the highest and best use of the land prior to the taking was commercial.

Morrison testified that the value of the land taken was $56,551, and damage to the residue was $9,362. In computing the damage he considered loss of parking space, and damage to waterlines and drainfields. He was of opinion that after the acquisition, the residue was not as desirable as before and, though “it could still be utilized in some commercial fashion,” the use could not be “as intense.” He conceded that he considered the property’s desirability after its means of access was taken.

Wilson valued the land taken at $88,400 and damage to the residue at $20,160. Over objection, he was permitted to testify that in his opinion, the loss of direct access to Route 17 reduced the highest and best use of the residue from commercial to “woodland.” The trial court ruled that the evidence was admissible and that it would be for the commissioners to decide the extent, if any, to which the value of the residue was reduced by the substitution of a service road for direct access.

Smith testified that the value of the property taken was $92,930 and damage to the residue was $46,020. He had ascertained that the soil in the residue was not suitable for a septic tank or drainfield, thereby making the land “almost completely useless.” He considered the loss of direct access to Route 17 significant.

John Linsly, one of the landowners, testified that he estimated that the value of what was taken and damage to the residue was $130,000. He made no attempt to differentiate between the value of the take and damage to the residue.

The Commissioner proffered an instruction, refused by the trial court, that the landowners are only entitled to reasonable access [441]*441and if reasonable access exists no damages can result from a change in access. The trial court, over the Commissioner’s objection, gave an instruction that the commissioners in determining the value of the take and the damage to the residue should consider the elimination of the easement of ingress and egress and allow compensation for extinguishment of the easement and damages, if any, to the residue resulting therefrom. The commissioners awarded $90,000 for the take and $35,000 for damages to the residue. The trial court overruled the Commissioner’s exceptions and confirmed the award by order entered February 28, 1980.

On appeal, the Commissioner contends that the dispositive question is whether a reasonable reduction or limitation of access to a landowner’s property resulting from construction of a limited access highway is compensable in condemnation proceedings. He says that we have established the controlling principle that such reduction or limitation of access is a valid exercise of police power and is not compensable. The landowners argue, however, that in the present case there is more than a limitation of access, there is a taking of land and easements of access, for which they are entitled to compensation. Moreover, they say that the taking has caused them to suffer compensable damage to the residue by reducing the highest and best use of the land.

In Wood v. Richmond, 148 Va. 400, 138 S.E. 560 (1927), upon which the Commissioner relies, the owner of a service station located at a corner of 34th and Leigh Streets sought to enjoin the City of Richmond from eliminating his driveway on 34th Street. We acknowledged that an abutter’s easement of access to a public street is a property right, but we held that exercise of this right is subject to the right of the municipality to control the streets to promote the public safety and welfare. We reaffirmed the principle approved in Bowman v. Va. State Entomologist, 128 Va. 351, 362, 105 S.E. 141, 145 (1920), that a restraint upon the use of property to promote the public welfare is a regulation, not a taking, an exercise of police power rather than of eminent domain. See 2A Nichols on Eminent Domain (Rev. 3d ed. 1981) § 6.4443(4). The driveway had been constructed pursuant to a City permit which could be revoked at any time. We held that the City could require the removal of the driveway, although to do so apparently would deprive the owner of direct vehicular access to 34th Street.

[442]*442The Commissioner also cites City of Lynchburg v. Peters, 156 Va. 40, 46, 157 S.E. 769, 771 (1931), for the principle, therein stated, but unnecessary to the decision, that discontinuance or partial obstruction of a street may be authorized provided abutting landowners have other access to their properties. In that case, a non-abutting landowner was denied damages for the closing of nearby streets in the construction of a public park.

In Davis v. Marr, 200 Va. 479, 106 S.E.2d 722 (1959), a landowner sought to enjoin the Commissioner from maintaining a “No Left Turn” sign at a crossover in the median strip of a limited access highway. The crossover was in front of a restaurant operated by the landowner’s lessees and allegedly made worthless by the traffic sign, and the landowner asked for damages as well as injunctive relief.

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STATE HIGHWAY AND TRANSP. COM'R v. Linsly
290 S.E.2d 834 (Supreme Court of Virginia, 1982)

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Bluebook (online)
290 S.E.2d 834, 223 Va. 437, 1982 Va. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-highway-transportation-commissioner-v-linsly-va-1982.