Evans v. Smyth-Wythe Airport Commission

Present: All the Justices

EDWARD H. EVANS, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 970016 January 9, 1998

SMYTH-WYTHE AIRPORT COMMISSION

FROM THE CIRCUIT COURT OF SMYTH COUNTY
Charles H. Smith, Jr., Judge

The narrow issue that we decide in this appeal is whether a

judgment, which restricts an airport commission's power of

eminent domain, is void.
Pursuant to Code §§ 5.1-31, et seq., the Counties of Smyth

and Wythe and the Towns of Marion, Rural Retreat, and Wytheville

created the Smyth-Wythe Airport Commission, which operates the

Mountain Empire Airport in Smyth County.

In 1981, the Commission initiated condemnation proceedings

in the court below against a parcel of property owned by Edward

H. and Elizabeth B. Evans. The property is located adjacent to

the airport. The Evanses had also filed an action against the

Airport Commission which was consolidated by order with the

condemnation proceeding. The record in this case does not reveal

the nature of the claims that the Evanses asserted in that

proceeding.

Subsequently, the Commission and the Evanses reached a

settlement, and the court entered a judgment in 1984, which

stated in part:
"1. The Smythe Wythe [sic] Joint Airport
Commission has agreed, . . . that no clear zone
easement will be required over the property of Edward
H. Evans and Elizabeth B. Evans, so long as it is owned
by them . . . . In this regard the eastern end of said
runway will not be moved or extended in an easterly
direction from its present eastern terminus so long as
 the Evanses or their children own the property.

. . .

7. That both parties shall jointly move the Court
to dismiss the pending actions herein, including the
action of Edward H. Evans and Elizabeth B. Evans, his
wife, against the Smyth Wythe Joint Airport Commission
and the action of the Smyth Wythe Joint Airport
Commission against Edward H. Evans and Elizabeth B.
Evans, his wife, with prejudice to all claims and
rights that they may have as outlined therein.
8. That the entry of this Order shall be res
judicata, as provided by law, as to any further right
of the Smyth Wythe Joint Airport Commission to condemn
any portion of the Edward H. or Elizabeth B. Evans
property located to the east of State Route 681, and to
the south of Interstate Highway 81, so long as the same
is owned by the Evanses or their children."

In 1996, the Airport Commission instituted this proceeding

by filing a motion for declaratory judgment seeking a declaration

that the 1984 judgment "which purports to limit the Commission's

future right to initiate condemnation proceedings against the

[Evanses'] Property is null and void ab initio because the

Commission had no authority to voluntarily surrender or

relinquish the power of eminent domain granted to it by the

General Assembly." The Evanses filed a grounds of defense and a
1
counterclaim.
After consideration of memoranda submitted by counsel, the

1984 judgment, and oral argument, the trial court entered a

declaration that the 1984 judgment "is null and void ab initio to

the extent it purports to limit the [Airport Commission's] right

to initiate condemnation proceedings or exercise the power of

eminent domain over property owned by the [Evanses]." The

1
The Evanses subsequently nonsuited their counterclaim.
Evanses appeal.

The Evanses contend that the trial court had inherent power

to enter the 1984 judgment which prohibits the Airport Commission

from exercising the power of condemnation with regard to their

property. We disagree.

Code §§ 5.1-35 and -36 authorize cities, counties and towns

to create commissions to operate airports. The General Assembly,

in Code § 5.1-34, has delegated to a city, town, or county the

"full power to exercise the right of eminent domain in the

acquisition of any lands, easements and privileges which are

necessary for airport and landing field purposes." Code § 5.1-36

enables a city, town, or county to enter into an agreement

creating an airport commission which may exercise the power of

eminent domain on behalf of the city, town, or county.
We have consistently held that the "power of eminent domain

is an essential attribute of sovereignty which, in our system,

inheres in the General Assembly." Hamer v. School Bd. of the
City of Chesapeake, 240 Va. 66, 70, 393 S.E.2d 623, 626 (1990);

accord Talbot v. Mass. Life Ins. Co., 177 Va. 443, 448-49, 14

S.E.2d 335, 336 (1941); Commonwealth v. Newport News, 158 Va.

521, 545-46, 164 S.E. 689, 696 (1932); Wilburn v. Raines, 111 Va.

334, 338, 68 S.E. 993, 995 (1910); Painter v. St. Clair, 98 Va.

85, 87, 34 S.E. 989, 990 (1900). Additionally, in Commonwealth

v. Newport News, we stated the following principle which is

equally pertinent here:
"In so far as the sovereignty and governmental
powers of the State are concerned the object of the
ordination of the Constitution is to provide for the
exercise thereof and not the abdication thereof. It
 would, therefore, be a perversion of the Constitution
to construe it as authorizing or permitting the
legislature or any other governmental agency to
relinquish, alienate or destroy, or substantially
impair the sovereignty, or the sovereign rights, or
governmental powers of the State. . . . [T]he power or
right of eminent domain [is an attribute] or inherent
and inseparable [incident] of sovereignty and the power
to govern." 158 Va. at 545-46, 164 S.E. at 696.

Applying these principles, we hold that the Airport

Commission could not relinquish its power or right of eminent

domain because such power or right is an inherent and inseparable

incident of the sovereignty of this Commonwealth. And, contrary

to the assertions of the Evanses, Code § 25-46.34(e), which

authorizes a court to dismiss a condemnation proceeding, does

not, and could not, divest the Airport Commission, acting through

its delegation of power from the General Assembly, of the power
2
or right of eminent domain.
The Evanses argue that even if the Airport Commission could

not relinquish its power of eminent domain, then the "1984 Order

is at most voidable, not void ab initio, because it was not

procured by fraud and the court had jurisdiction over the subject

matter and the parties." We disagree.

A judgment is void if it has been procured by extrinsic or

collateral fraud, Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756,
758 (1987); Jones v. Willard, 224 Va. 602, 607, 299 S.E.2d 504,

508 (1983), or has been entered by a court that did not have

2
Code § 25-46.34(e) states:

"Except as otherwise provided in a stipulation
of dismissal or order of the court, any dismissal
is without prejudice."
jurisdiction over the subject matter or the parties, Va. Dept.

Corr. v. Crowley, 227 Va. 254, 260-61, 316 S.E.2d 439, 442-43

(1984); Slaughter v. Commonwealth, 222 Va. 787, 791, 284 S.E.2d

824, 826 (1981). We have held that
"it is essential to the validity of a judgment or
decree, that the court rendering it shall have
jurisdiction of both the subject matter and parties.
But this is not all, for both of these essentials may
exist and still the judgment or decree may be void,
because the character of the judgment was not such as
the court had the power to render, or because the mode
of procedure employed by the court was such as it might
not lawfully adopt." Anthony v. Kasey, 83 Va. 338,
340, 5 S.E. 176, 177 (1887).

Watkins v. Watkins, 220 Va. 1051, 1054, 265 S.E.2d 750, 752-53

(1980); Barnes v. American Fertilizer Co., 144 Va. 692, 706, 130

S.E. 902, 906 (1925).

Applying these principles, we hold that the 1984 judgment

was void ab initio because the circuit court did not have the

power to render a judgment which permitted a governmental entity

to relinquish the power or right of eminent domain. Because the

1984 judgment is void, it confers no rights or obligations upon

the Airport Commission or the Evanses.

Accordingly, the judgment of the trial court will be
3
affirmed.
Affirmed.

3
We find no merit in the Evanses' assertion that our
decisions in Parrish v. Jessee, 250 Va. 514, 464 S.E.2d 141
(1995), and Rook v. Rook, supra, support their contention
that the 1984 judgment is not void. In Parrish and Rook, we
did not discuss whether a court was empowered to enter a
judgment which divests the sovereign of its power of eminent
domain.