Present: Carrico, C.J., Compton, Stephenson, 1 Lacy, Hassell,
Keenan, and Koontz, JJ.
COMMONWEALTH TRANSPORTATION
COMMISSIONER OF VIRGINIA
v. Record No. 962266 OPINION BY JUSTICE BARBARA MILANO KEENAN
September 12, 1997
A.B. CHADWELL, ET AL.
FROM THE CIRCUIT COURT OF LEE COUNTY
William C. Fugate, Judge
In this appeal of a judgment confirming an award in an
eminent domain proceeding, the dispositive issue is whether the
trial court erred in refusing to strike for cause a prospective
commissioner based on his ownership of property directly across
the highway from the condemnees' land.
In October 1994, the Commonwealth Transportation
Commissioner (the Commonwealth) recorded a certificate condemning
0.036 acre in fee and 0.006 acre owned by A.B. and Yvonne
Chadwell for a permanent utility easement. The Commonwealth's
certificate included a deposit of $69,125, its estimated value of
the land taken, the easement, and the damage to the residue.
The condemned property was part of an 0.8 acre parcel owned
by the Chadwells near the intersection of state Routes 58 and 693
in Lee County. Two commercial structures are located on the
property, a convenience store with a gasoline pump, leased to Lee
Oil Company and subleased to Patty Fee Young, and a building
1
Justice Stephenson participated in the hearing and decision
of this case prior to the effective date of his retirement on
July 1, 1997.
leased to the Lee County Office on Youth for use as a "Teen
Center."
In December 1994, the Commonwealth filed a petition in the
trial court, requesting appointment of a commission to ascertain
the value of the land taken and any damage which may accrue to
the residue as a result of the taking. Lee Oil and Young
intervened in the action.
Nine condemnation commissioners were summoned and seated in
accordance with Code § 25-46.20. After the parties conducted
their voir dire of the prospective commissioners, the
Commonwealth moved to strike James C. Brown for cause on the
ground that he was not impartial and disinterested. Brown had
stated that he currently owned property directly across Route 58
from the Chadwells' land, and that he had settled his case with
the Commonwealth concerning property taken for the same highway
project.
The trial court denied the Commonwealth’s motion, stating
that a ruling automatically eliminating anyone who owned land on
Route 58 affected by the project would "seriously reduce the
[number of] people that might be available" to serve as
commissioners. Brown was removed from the panel by a peremptory
strike.
After the commissioners were seated, they inspected the
property and heard evidence concerning the value of the land
taken and the damage to the residue caused by the take. The
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chief issue in dispute was whether the taking, which eliminated
vehicular access to the convenience store from Route 58, deprived
the residue of its commercial value. After the taking, access to
the convenience store was limited to entry from Route 693.
The commissioners returned an award of $162,275 for the land
taken and $161,425 for the damage to the residue. The trial
court overruled the Commonwealth’s exceptions and entered
judgment confirming the award.
On appeal, the Commonwealth contends that Brown should have
been struck from the panel for cause on the ground that he owned
property directly across Route 58 from the condemned parcel. The
Commonwealth argues that its right to a panel of five
commissioners, chosen from a group of nine disinterested and
impartial freeholders, was violated because Brown had a personal
and financial interest in the outcome of this case.
In response, the Chadwells, Lee Oil, and Young
(collectively, the Chadwells) assert that the trial court
properly refused to strike Brown for cause. They contend that
Brown did not have a personal or financial interest in this
proceeding because he did not own property adjacent to the
condemned property or property that was currently the subject of
a present or anticipated condemnation proceeding. We disagree
with the Chadwells.
The issue of just compensation in an eminent domain
proceeding may be determined by a commission, which must be
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comprised of disinterested freeholders. Code § 25-46.20. When
nine commissioners are summoned, as occurred in this case, the
condemnor and the landowners are each entitled to two peremptory
strikes, after which the remaining five freeholders are appointed
to fix the value of the property to be taken and the damage, if
any, to the residue. Id.
The commissioners must be "upright and capable,...without
bias or prejudice." Chairman of the Highway Comm'n v. Fletcher,
153 Va. 43, 46-47, 149 S.E. 456, 457 (1929). The commissioners,
like a jury, hear the evidence, evaluate the credibility of
witnesses, and make factual determinations in ascertaining the
proper award due the landowner. Commonwealth Transp. Comm'r v.
Thompson, 249 Va. 292, 295, 455 S.E.2d 206, 207 (1995).
To maintain public confidence in the integrity of
condemnation proceedings, the selection of condemnation
commissioners is subject to the same rule applicable to the
selection of jurors, namely, that any person who may be
improperly influenced in the proceedings must be stricken for
cause from the panel. See May v. Crockett, 202 Va. 438, 440-41,
117 S.E.2d 648, 649-50 (1961). The trial court is given
discretionary authority to determine whether a prospective
commissioner should be stricken for this reason. State Highway
and Transp. Comm'r v. Dennison, 231 Va. 239, 243, 343 S.E.2d 324,
327 (1986). Under its discretionary authority, the trial court
must decide, among other things, whether any members of the
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venire have a financial interest so intimately related to the
issue at trial that they cannot sit indifferent in the cause.
Id.
In May, we held that the trial court should have stricken
for cause a commissioner who owned property adjoining the land to
be condemned and held an equitable interest in other property in
the same project on which condemnation proceedings were pending.
202 Va. at 441, 117 S.E.2d at 650. By comparison, in Dennison,
we upheld the trial court's refusal to strike for cause two
prospective commissioners, one who had sold the landowner some
personal insurance policies before the taking, and the other who
had done some construction work for the landowner three years
before the taking. 231 Va. at 243, 343 S.E.2d at 327. The
standard distinguishing these decisions was whether the panel
member had a present financial interest that may have affected
his ability to be disinterested in the cause.
Applying this standard to the present case, we conclude that
the trial court abused its discretion in refusing to strike Brown
for cause. Like the commissioner challenged in May, Brown was
not disinterested in the cause, because he owned property in very
close proximity to the land taken. His ownership of that
property could have affected his ability to render a
disinterested valuation of the land taken, or a disinterested
determination of the damage to the residue. 2
2
Based on our holding, we need not address the remaining
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For these reasons, we will reverse the judgment confirming
the award and remand the case for a new trial.
Reversed and remanded.
issues raised by the Commonwealth.
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