An Analysis of Virginia Senate Joint Resolution 3

Eminent Domain in Virginia

An Analysis of Virginia Senate Joint Resolution 3

Joseph J. Viviano

I.  Introduction

Eminent domain constitutional reform has been underway in Virginia for the last two years. The proposed constitutional amendment, Virginia Senate Joint Resolution 3, will greatly expand constitutional protections for Virginian landowners. Many of these protections already exist in the Virginia Code. However, property owners will receive two additional protections when their property is taken or damaged by the government: the right to lost profits and the right to compensation caused by a loss of access. This Paper proceeds by first explaining the development of constitutional eminent domain law in Virginia to provide context for examining Senate Joint Resolution 3. Next, the effect the proposed constitutional will have on current law in Virginia is analyzed. Finally, this Paper concludes by rebutting arguments opposing Senate Joint Resolution 3.

II.  A Brief History of Eminent Domain in Virginia and Constitutional Reform

Absent a constitutional provision to the contrary, the State's power to take or control the use of private property for the public's benefit is absolute. This is inherent in the meaning of “eminent domain,” which the Virginia Supreme Court has defined as:

the right on the part of the state to take or control the use of private property for the public benefit when public necessity demands it, is inherent in every sovereignty, and is inseparable from sovereignty, unless denied to it by its fundamental law.[1]

In Virginia, as in other states, the “Constitution is the fundamental law. It is the charter by which our people have consented to be governed; it sets forth the basic rights and principles sought to be maintained and preserved in a free society.”[2] Accordingly, a constitutional restriction is the only way Virginia residents can absolutely restrain the State’s power of eminent domain.

Given the nearly unlimited scope of the State’s power to take property for the “public benefit,” it is somewhat surprising that Virginia’s first Constitution, which was ratified in 1776,[3] did not contain any provisions to restrain this power. The Virginia Constitution has been completely revised a total of five times.[4] These revisions occurred in the years of 1830, 1851, 1870, 1902, and in 1971.[5] However, a constitutional provision restricting the State’s power of eminent domain was not made until 1830 – fifty-six years after the Virginia’s first Constitution was ratified. This restriction was revised later in the Virginia Constitution of 1902. Both of these amendments were ratified in response to governmental abuses that were occurring in the context of eminent domain.

a.  The Virginia Constitution of 1776

Although identified by the Virginia Legislature as the state’s first constitution, the Virginia Constitution of 1776 (hereinafter “Constitution of 1776”) is actually titled as a “Bill of Rights.” This peculiarity arose from arguments advanced by Thomas Jefferson, who stated that the delegates to the Convention of 1776 were without authority to adopt a constitution.[6] Despite Thomas Jefferson’s arguments, the Virginia Supreme Court later held that this Bill of Right was the equivalent to a constitution.[7]

Property was typically condemned during the 18th Century and early 19th Century to further private economic development through the construction of dams. Dams were built to power watermills that could be used to ground grain into flour. After a dam was constructed, the water level would rise and flood the land of nearby private owners, destroying the value of their land in the process.[8] Anyone who wanted to build a dam was required to apply to the county court[9] for a writ of ad quod damnum (Latin for “to what damage”).[10] An affected landowner was required to receive at least 10 days notice prior to the execution of a writ of ad quod damnum. Upon execution of a writ of ad quod damnum, the county sheriff was ordered to impanel a group of five landowners to serve as a jury.[11] The jury was taken to view and appraise the land.[12] The juror’s valuation was then delivered county clerk, and upon delivery title was divested from the private landowner. The person constructing the dam was then required to pay the damaged landowner the amount of damages assessed by the jury.[13]

While the law required compensation to be paid to the landowner when the taking benefited another private party, there was no requirement that a landowner be compensated when the taking was for the public benefit. Although Section 6 of the Constitution of 1776 provided that “all men, hav[ing] the right of suffrage . . . cannot be taxed or deprived of their property for public uses, without their own consent, or that of their representatives,”[14] this provision merely limited the government’s power to collect and levy taxes,[15] and did not prohibit or restrain the government from taking private property. And absent any check on public takings, the government was free to condemn land without paying the owner any compensation.[16]

b.  The Virginia Constitution of 1830, 1851, and 1870

In the context of eminent domain law in Virginia, the Virginia Constitution of 1830 is significant because it was the first Virginia Constitution that provided any protection for private owners against the State's power of eminent domain. Section 11 of the 1830 Constitution (“Section 11”) substantially mirrored the language of the Fifth Amendment of the United States Constitution,[17] and provided that “[t]he Legislature shall not pass any . . . law, whereby private property shall be taken for public uses, without just compensation.”[18] Section 11 was adopted without debate.

Throughout the entire 919 page record of the proceedings and debates from the Virginia Constitutional Convention of 1829, it was only Chief Justice John Marshall who even bothered to reference Section 11. As a resident of Richmond, Virginia, Chief Justice of the United States Supreme Court John Marshall was selected as a delegate to the Convention.[19] While defending his opinion that Virginia judges should continue to hold office during good behavior, he remarked:

Do you believe, that the Legislature will put forth their grasp upon private property, without compensation? Certainly I do not. There is as little reason to believe they will do such an act as this, as there is to believe, that a Legislature will offend against a Judge who has given a decision against some favourite opinion and favourite measure of theirs, or against a popular individual who has almost led the Legislature by his talents and influence.[20]

Save perhaps Justice Marshall, the delegates to the 1829 Constitutional Convention apparently believed that protection against the state’s inherent power of eminent domain was so fundamental as to render debate gratuitous. Commenting on the addition of Section 11 during the Virginia Constitutional Convention of 1902, Delegate Westcost stated:

The power of eminent domain, which is an inherent attribute of sovereignty, is the right on the part of the State to take all the wealth of all the individuals of the State whensoever and to whatsoever extent public necessity may dictate the propriety of doing so. . . . [I]t is not to be wondered at that, with respect to this sovereign power, vested in the General Assembly of the State of Virginia, absolutely without limitation or restraint, except that of public necessity, of which it is its own judge, a power so extensive, so far-reaching, so potential in its capacity to affect the rights of the private citiezn, [sic] it should have been found necessary to limit it by a constitutional provision, as was done in 1829.[21]

Following the adoption of the Constitution of 1830, Virginia adopted a new Constitution in 1851 and again 1870. While these Constitutions were significant for a variety of reasons, including continuing to restrict suffrage only to landowners,[22] the “just compensation” clause of Section 11 of the Constitution of 1830 remained unchanged. Constitutional reforms regarding eminent domain were not made again until the 1902, when Virginia held its second constitutional convention. The Supreme Court of Virginia had numerous opportunities to interpret the just compensation clause contained in Section 11 of the Virginia Constitution of 1830 in the years between 1830 and 1902.

One of the first cases to apply Section 11 was Commonwealth v. Beeson (1830).[23] In Beeson, a river had risen to wash away a public road.[24] The State then sought to reconstruct the road further inland on privately owned land without following condemnation procedures or paying “just compensation.”[25] The Supreme Court of Virginia held that the state was required to formally condemn any additional land necessary to construct a new road, and that the property owner was entitled to just compensation. The case is significant because the Court stated that private property could not only be taken for “public uses,” as required under the Constitution, but for “public purposes.” [26] Given that the case involved the construction of a public road, it is doubtful that the Court intended to create a distinction between “public uses” and “public purposes.” Nevertheless, the critical distinction between “public use” and “public purpose” was created which survives today.

In the infamous decision of Kehrer v. City of Richmond, the Virginia Supreme Court held that a property owner was not entitled to compensation for “consequential damages” if the owner’s “lands are not actually taken” by a condemnation authority.[27] In Kehrer, the plaintiff owned a business that fronted a city street.[28] In the process of grading the road, the City of Richmond had placed the dirt on the plaintiff’s property.[29] Apparently, the amount of dirt removed was so large that the plaintiff was required “to erect a barrier,” four feet high, “along the whole front of his lot, to prevent the earth from falling upon and covering up his premises.”[30] The plaintiff was then forced, at his own expense, to remove the dirt that was placed on his property and to construct a stairway “to have ingress and egress to and from his premises.”[31] The plaintiff alleged that as a result of the grading, “ingress and egress to and from . . . his store [was] rendered inconvenient and unsafe, the value of his [property was] greatly diminished, his business serious impaired, [and] rainwater finds easy access into his . . . store causing great damage.”[32]

The Virginia Supreme Court held that “the plaintiff’s loss was consequential, and, therefore damnum absque injuria[33] (Latin for “damage without wrongful act”)[34] because the plaintiff’s property had not been taken.

Theresult is, that the declaration before us is fatally defective. The property of the plaintiff has not been taken, nor have his rights been unlawfully invaded. And if, in consequence of the acts complained of, he has been obliged, as he avers, to erect a barrier for the protection of his property, or steps, in order to have ingress and egress to and from his premises, or if his business has been injuriously affected, and the value of his property diminished, it is a mere incidental injury, caused by the prosecution in a lawful manner, of a public improvement, for which there is no redress.[35]

Less than a decade later in Home Bldg. & Conveyance Co. v. City of Roanoke, it was admitted that the property owner had sustained over $100,000[36] in damages, but since the condemnation authority did not actually “take” the lands, the property owner was without remedy.[37] The Virginia Supreme Court recognized the harshness of this rule, but nevertheless continued to follow it:

The opinion of the court . . . in Kehrer v. City of Richmond, [is] a doctrine that, we admit, appears harsh, and may be really so, when applied to some cases; but it should be remembered that it is not the province of this court to make the law, but rather to enforce it.[38]

c.  The Virginia Constitution of 1902

The stage was set at the Constitutional Convention of 1902 for constitutional amendment to provide landowners relief from the holdings in Kehrer and Home Bldg. & Conveyance Co. In support of the Amendment of 1902, Delegate Westcott described a situation very similar to that in Kehrer, where a city had lowered the grade of a road and thereby destroyed the value of a home adjacent to the road.[39] Under then-existing law, the landowner “ha[d] no remedy on earth, . . . except . . . to pull down his house and then grade his lot down to the proposed change of grade of the new street.” Section 58 of the Virginia Constitution of 1902 was amended to state that “the General Assembly shall not enact any law . . . whereby private property shall be taken or damaged for public uses, without just compensation” (“Amendment of 1902”).

It was the design of th[is] amendment to our Constitution under consideration to remove an existing mischief, viz., the damaging of private property for public use without just compensation.[40]

Under the Amendment of 1902, if the government took or damaged land for public uses, the landowner was required to receive just compensation. This provision was later amended in 1928 to allow the General Assembly to defined “public uses,” and has remained unchanged since.

A cursory reading of the debates and proceedings form the Virginia Constitutional Convention of 1902 suggests that that the drafters of the Amendment of 1902 intended for landowners to be compensated for all damages that resulted from a condemnation authority’s actions.