The General Assembly at its 1970 Regular Session adopted Senate Joint Resolution No. 55, directing the Virginia Advisory Legislative Council to make a study and report on the Eminent Domain Laws of the State. The text of this Resolution follows:

"Directing the Virginia Advisory Legislative Council to make a study and report on the eminent domain laws of the Commonwealth.

"Whereas, with the expansion of the State road system, and the growth of other State corporations, institutions, and authorities, the number of eminent domain cases is ever increasing; and

"Whereas, the procedures respecting pretrial negotiations and the trial of such cases should be thoroughly studied, in order that the rights of all parties to such cases should be further safeguarded; now, therefore, be it

"Resolved by the Senate of Virginia, the House of Delegates concurring, That the Virginia Advisory Legislative Council is directed to make a study and report on the eminent domain laws of the Commonwealth. The Council shall study all aspects of the problem, including, but not limited to, the methods of procedure, both in the pretrial and trial stages of such cases; how and what evidence may be presented; whether discovery procedures should be utilized in such cases; whether or not attorney's fees should be assessed against either party to such cases when the award is disproportionate to the amounts offered in settlement; and any other matters the Council may deem relevant. All agencies of the State shall assist the Council in its study upon request. The Council shall complete its study and report to the Governor and the General Assembly no later than November one, nineteen hundred seventy-one."

Willard J. Moody, of Portsmouth, a member of the Senate of Virginia, and a member of the Council and an Attorney at Law, was selected as Chairman of the Committee to make the preliminary study and report to the Council. The following persons, all attorneys at law, were chosen to serve as members of the Committee with Senator Moody: Adelard L. Brault, Fairfax, Edward T. Caton, III, Virginia Beach, J. Harry Michael, Jr., Charlottesville, and James C. Turk, Radford, all members of the Senate of Virginia; Edgar Bacon, Jonesville, Russell M. Carneal, Williamsburg, Edward E. Lane, Richmond, and Lester E. Schlitz, Portsmouth, all members of the House of Delegates; and Louis B. Fine, Norfolk, Francis C. Lee, Richmond, William A. Perkins, Jr., Charlottesville, F. Bert Pulley, Courtland, Beverly H. Randolph, Jr., a former member of the House of Delegates, Richmond, William Rosenberger" Jr., Lynchburg, and Hugh A. West, Suffolk.

The Committee met and organized, and elected Senator Michael Vice-Chairman. The Division of Statutory Research and Drafting served as Secretariat for the Committee.

The Committee held two public hearings in the State Capitol Building. Many suggestions for changes in the Eminent Domain Laws were advanced by the speakers at these hearings, and the Committee also received suggestions in writing from persons who did not attend either hearing.

After considering the suggestions which had been made to the Committee, Subcommittees were appointed. The reports of the Subcommittees were thoroughly considered by the Committee.

After completing its deliberations, conducted during the course of six meetings, the Committee made its Report to the Council. This Report has been considered by the Council, which now makes its Report.

Before setting forth our recommendations, we mention several matters which were discussed but on which no recommendations are being made, as follows:

(1) Whether there should be special commissioners to sit for the trial judge in condemnation cases;

(2) Governmental immunity for peripheral damages; and

(3) Whether attorneys' fees should be included as part of the closing costs to be awarded in condemnation cases.

We make the following recommendations:

RECOMMENDATIONS

(All section, article and chapter references are to the Code of Virginia.)

1. That eminent domain cases be tried, in accordance with procedure relating to such cases, by a jury selected in the same manner as in civil cases, instead of by commissioners appointed in accordance with presently prescribed procedure. We further recommend that such jurors shall be freeholders, and that no one be permitted to serve as a juror in condemnation cases oftener than during one term of court in anyone calendar year.

Such jury is to be drawn from the regular venire, thus making it unnecessary for the clerk of court to keep a separate list of freeholders for juries in condemnation cases. The number of jurors will be the same as used in civil cases. Also, such jurors will receive the same pay and allowances as jurors in civil cases, rather than the compensation presently paid to commissioners.

However, we are recommending that the jurors' award may be determined by a majority, as is presently the situation with commissioners, rather than requiring the award to be unanimous.

2. That all procedural sections in Article 7, relating to exercise of the power of eminent domain by the State Highway Commissioner, of Chapter 1 of Title 33.1 be repealed, with the exception of §§ 33.1-119 through 33.1-132, relating to that Commissioner's method of taking both possession and title, either before or during condemnation proceedings; and that otherwise the procedure in condemnation cases instituted by the Commissioner be that prescribed by Chapter 1.1, relating to condemnation generally, of Title 25.

3. That Chapter 4, known as the "Public Park Condemnation Act," of Title 25, be repealed.

4. That a study of charters, special acts, and other statutory enactments be undertaken by the Virginia Code Commission, looking toward the repeal of all enactments which are inconsistent with the procedure prescribed in Chapter 1.1 of Title 25.

5. That there be full discovery, including experts, in condemnation proceedings.

6. That condemnation proceedings be on the law side of the court.

7. That when a condemnation suit has been dismissed at the condemnor's request made before the trial on the issue of just compensation has begun, the court be permitted, in its discretion, to provide for payment by the condemnor to the landowner of compensation for reasonable expenses incurred by the landowner in preparing for such trial.

8. That when two or more parcels of land in different ownership are joined in the same petition, the clerk of court be required to index the petition in the names of the respective owner or owners of all such parcels.

9. That two or more petitions may be consolidated for trial unless any party demands a separate hearing on the issue of just compensation.

SUMMARY OF RECOMMENDATIONS

1. The present method of appointing commissioners to ascertain just compensation for the property to be taken was the subject of the most often voiced and most vigorous complaints at the public hearings. It is significant that this complaint was mutually voiced by representatives of both condemnors and landowners. Many expressed the opinion that it is well-nigh impossible to have a commission that is not weighted in favor of either the condemnor or the landowner. The best solution seems to us to be that of having the ascertainment of just compensation made by a jury selected as in civil cases. Such jurors should have some idea of and appreciation for the value of land and, therefore, should be freeholders. Our proposed amendment of § 25-46.3 adds a definition of the word "freeholder" for this purpose. Limiting the number of times any person may serve as such juror to one term of court in any calendar year would prevent the building up of a body of "condemnation case jurors."

2, 3, and 4. We strongly believe that prescribed procedure for condemnation cases should be uniform and should be found in one place only in the Code of Virginia. The only reason for which we do not recommend the repeal of §§ 33.1-119 through 33.1-132, and the incorporation of the provisions thereof into new sections in Chapter 1.1 of Title 25, is that many city and town charters, special acts, and sections throughout the Code, through incorporation by reference to such sections, confer the power of "quick" taking of possession and title exercised by the Highway Commissioner. Once all such charter provisions, special acts and Code sections have been ascertained, §§ 33.1-119 through 33.1132 can be repealed and the provisions thereof incorporated in Chapter 1.1 of Title 25 by the addition of new sections. Then such charters, special acts and Code sections can be amended so as to refer to such new Title 25 sections rather than to §§ 33.1-119 through 33.1-132. Also, any procedural provisions inconsistent with the procedure prescribed in Chapter 1.1 of Title 25 can be amended so as to require compliance with such procedure.

The Public Park Condemnation Act contains 112 sections and provides for a complicated and lengthy procedure. Although this Act has been in the Code since 1928, it has very seldom been used. There is no reason why the procedure for such condemnation should not be that prescribed in Chapter 1.1 of Title 25.

Our suggested bill for repeal of these Code sections also contains a provision that such repeal shall not be construed as prohibiting the condemnation of land for public parks whenever the power to condemn for such purpose has been, or hereafter may be, granted.

5. The major issue in eminent domain cases is determination of what amount shall be awarded a landowner for land taken and damages, if any, to his remaining property because of the take. The law requires the condemnor to make a "bona fide" offer of purchase before commencement of condemnation proceedings, and too often this is perfunctory and meaningless.

At trial the condemnor, through witnesses, may take the position the value of the land taken is less or more than the landowner was offered before trial and, notwithstanding prior negotiations, the condemnor may or may not deny any damage to landowner's remaining lands. Not until the trial does the landowner know the facts and reasoning upon which the condemnor's valuations or conclusions are based. Until the moment the condemnor rests his case, the landowner does not know where he stands. At this point, the landowner then has the burden of producing evidence to rebut that which he was not aware of until the time of trial. It is equally true that the condemnor does not know what evidence of the landowner it must rebut until the landowner rests his case.

The prohibition of discovery makes condemnation cases blind man's bluff. The adversaries reveal at trial only such facts and opinions obtained prior to trial as may be expedient to their respective causes and without discovery the facts and opinions withheld are forever hidden.

We believe the issue of "just compensation" may better be determined if each party had the opportunity to discover the facts and opinions of his adversary's witnesses before trial and thus be prepared to meet the issues at time of trial through presentation of properly prepared evidence rather than evidence produced on an instant mix basis.

The weight of authority in the United States indicates that discovery is not prohibited in condemnation cases; and we are advised full discovery has resulted in a higher incidence of pretrial settlements in jurisdictions where such is allowed, thereby making the requirement of a bona fide offer more than perfunctory and meaningless.

6. Since our recommendations have the effect of making condemnation proceedings so nearly similar to civil proceedings at law, we believe it should be specifically provided that condemnation proceedings shall be on the law side of the court. This provision is included in proposed new section 25-46.4:1. The proposed amendment of § 25-46.11 includes a change in conformity with this provision.

7. § 25-46.34 provides that a condemnor may dismiss a condemnation suit as a matter of right (a) if no hearing has begun in the trial of the issue of just compensation and (b) at any time after a hearing has begun but before the expiration of the appeal period after the fixing of just compensation. In the latter instance, the statute provides that the condemnor must pay the landowner certain expenses actually incurred by reason of the condemnation suit which the court determines just and reasonable. In the first instance, the statute is silent on the payment of such expenses.

There are, of course, instances where a condemnation proceeding is brought and because of bona fide reasons must be dismissed prior to trial. In some such cases, the landowner may have been put to no expense whatever; but the statute leaves the door open for the incurring of considerable noncompensable expenses by the landowner through no fault of his own.

A condemnor may, for any of a number of reasons, only a day or two before the trial is to be commenced, move that the suit be dismissed, thus leaving the landowner to pay his expenses incurred, which by that time may include the cost of expensive appraisals as well as legal fees.

Although there is case law from other states allowing compensation under similar circumstances, the law is not clear. This statute should be amended to expressly give the court discretion in allowing compensation to a landowner for expenses incurred in the preparation for trial when the condemnor voluntarily dismisses the suit prior to a hearing on just compensation.

Our proposed amendment of § 25-46.34 includes a provision to remedy this situation.

8. When separate parcels of land in different ownership are joined in the same petition, clerks of court often do not index such petition in the names of all the respective owners involved. The requirement that the petition be indexed in all such names will insure that notice of pendency of the condemnation suit is given to all prospective bona fide purchasers of such parcels. Our proposed amendment of § 25-46.7 includes a requirement for such indexing.

9. Permitting the consolidation of two or more petitions for trial will expedite the disposition of condemnation cases, but making such consolidation subject to the demand of any party for a separate hearing on the issue of just compensation will insure protection of the interests of all parties involved. This provision is embodied in our proposed new section numbered 25-46.17:1.

CONCLUSION

We express our appreciation to the members of the Committee for the time which they gave to the study of this subject and for affording the Council the benefit of their considerable experience in condemnation cases.

Included in this Report are drafts of proposed legislation for implementation of our recommendations, and we urge enactment thereof by the General Assembly at its 1972 Regular Session.

Respectfully submitted,

Robert C. Fitzgerald, Chairman
Arthur H. Richardson, Vice-Chairman
M. Caldwell Butler
Russell M. Carneal
C. W. Cleaton
Henry E. Howell, Jr.
Edward E. Lane
Lewis A. McMurran, Jr.
Willard J. Moody
Garnett S. Moore
Sam E. Pope
James M. Thomson
James C. Turk
Edward E. Willey