Commonwealth Transportation Comm'r v. Glass

PRESENT: All the Justices
COMMONWEALTH TRANSPORTATION
COMMISSIONER OF VIRGINIA OPINION BY
JUSTICE G. STEVEN AGEE
v. Record No. 042192 June 9, 2005
R.S. GLASS, a/k/a ROBERT S.
GLASS and R. STUART GLASS
FROM THE CIRCUIT COURT OF LOUISA COUNTY
Timothy K. Sanner, Judge
This case arises from condemnation proceedings involving
parcels of land located at the Zion Crossroads highway
intersection in Louisa and Fluvanna Counties. The Commonwealth
Transportation Commissioner of Virginia (“the Commonwealth”)
appeals from a judgment of the Louisa County Circuit Court which
confirmed a report of commissioners pursuant to Code § 25.1-233,
awarding compensation to the landowner, R. Stuart Glass. For
the reasons set forth below, we will affirm the trial court's
judgment in part, and reverse it in part.
I. FACTS AND PROCEEDINGS BELOW
The Commonwealth filed a certificate of take and a petition
for condemnation in the Clerk's Office of the Fluvanna County
Circuit Court on 20 separate tax map parcels of land owned by
Glass in all four quadrants at the intersection of Routes 15 and
250 (“Zion Crossroads”). The boundary between Fluvanna and
Louisa counties extends through the southeast, southwest and
northwest quadrants of the Zion Crossroads intersection. On
1
Glass' motion, the condemnation proceeding was transferred to
the Circuit Court of Louisa County, where the issue of just
compensation was submitted to a commission pursuant to Code
§ 25.1-220, et seq.
Given the number of parcels involved, the trial judge
severed the proceedings into three separate cases. The case at
bar concerns only the judgment in Case 4367-III, pertaining to
the certificate of take for Parcels 003, 03A and 005 which are
all located in the northwest quadrant of the Zion Crossroads
intersection and are predominately in Louisa County.
Parcel 003 ("the motel parcel") is a 3.368 acre tract with
a motel and a restaurant. This parcel is at the Zion Crossroads
intersection with 220 feet of frontage along Route 15 and 450
feet along Route 250. The motel parcel was zoned commercial and
solely located in Louisa County.
Parcel 03A ("the 25 acre parcel") contains 25.24 acres and
is contiguous to the motel parcel on the north and west and
contained parking for both the motel and restaurant. Located
predominately in Louisa County, that portion is zoned general
commercial, while the smaller Fluvanna County portion is zoned
agricultural. The 25 acre parcel has approximately 409 feet of
frontage along Route 250 and 751 feet along the north side of
Route 615. Most of the 25 acre parcel is wooded and unimproved.
2
Parcel 005 ("the 615 parcel") is a 5.32 acre parcel on the
south side of Route 615 and directly across that road from the
25 acre parcel. The 615 parcel was unimproved and zoned
agricultural at the time of the take, with 862 feet of frontage
along Route 250 and 751 feet along the south side of Route 615.
This parcel is predominately located in Fluvanna County.
As a result of the condemnation, the Commonwealth acquired
the following portions of the three parcels in fee simple: 9,311
square feet from the motel parcel, 4,521 square feet from the 25
acre parcel, and 14,440 square feet from the 615 parcel. In
addition, the Commonwealth acquired easements on the residue of
these parcels as follows: 7100 square feet on the motel parcel
for an MCI cable, 538 square feet on the 25 acre parcel for a
permanent drainage easement, and a 5,436 square feet temporary
construction easement on the motel parcel.
In April 2003, Glass filed a motion to add eight tax map
parcels to the condemnation proceeding which were not part of
the three actual take parcels.1 Glass argued that the commission
should consider damage to these parcels because they are
"contiguous [to the actual take parcels], have the same
1
The motel, 25 acre and 615 parcels were the subject of the
certificate of take and were the only parcels from which the
Commonwealth actually took land or obtained easements and are
therefore collectively referred to as the actual take parcels.
The separate parcels added to the condemnation proceeding at
Glass' request are collectively referred to as the "additional
parcels" or "non-take" parcels.
3
ownership, and the same highest and best use, and all of them
will be affected by this condemnation." Glass identified the
parcels in the northwest quadrant of Zion Crossroads that he
wished to add as: Parcels 002, 034, 030, 029, 016, 001, 01A, and
01B. Parcel 002 ("the Texaco parcel"), a 1.548 acre tract, was
improved with a Texaco gas station located on Route 15 north of
the motel parcel and east of the 25 acre parcel. A cellular
telephone tower leased to AT&T was on Parcel 029, but the
remaining parcels were primarily unimproved woodland. All the
additional parcels were zoned agricultural or residential except
for the Texaco parcel which was zoned commercial. The
additional parcels lay to the north and west of the actual take
parcels and were generally bordered on the north by Interstate
64 and on the east by Route 15. The additional parcels
constituted a total of 91.422 acres.
On July 23, 2003, the Commonwealth filed a motion in limine
requesting that the trial court exclude all evidence relating to
the value of or damage to the additional parcels. The
Commonwealth alleged "[t]hat for separate parcels to be
considered as residue property for the awarding of damages,
there must be unity of use, physical unity, and unity of
ownership," thus advancing what is commonly termed the unity of
lands doctrine.
4
At an ore tenus hearing on November 24, 2003, the
Commonwealth argued that Glass should not be able to present
evidence as to the additional parcels because those parcels
could not be considered under the unity of lands doctrine,
particularly as to the element of unity of use. The
Commonwealth contended Glass had not shown unity of use "because
there [were] no related actual uses as of the date of take
between the taken land and the land sought to be added." Glass
presented evidence that he considered all the additional parcels
to be commercial property and that he had purchased the parcels
at different times for future commercial use. He had hired a
surveyor to survey the site in order to prepare a site
development plan, but stopped work on the survey when the
Commonwealth initiated the condemnation proceeding.
The trial court denied the Commonwealth's motion in limine
and ruled that the commission could "consider damages to the
added parcels." The Commonwealth noted its exception.
At trial, the Commonwealth's witnesses testified as to the
value of the actual take parcels and improvements but not as to
the value of the additional parcels. Glass' witnesses testified
as to the value of the improvements on the actual take parcels,
but not as to the value of the actual take parcels separately.
Instead, they testified to the value of those parcels and the
additional parcels as a combined tract of 125.35 acres. The
5
Commonwealth objected to Glass’s expert witnesses presenting all
of Glass’s property as one parcel without any consolidated plat
approved by the County. The trial court overruled the motion,
ruling that
both counsel will be free to refer to the property
consistent with their view of the evidence and [the
commissioners will determine] whether this land should
be viewed as one or . . . multiple parcels.
The Commonwealth's expert witnesses, Patricia O. Filer and
James R. Johnston, appraised the actual take parcels and
estimated the value of the fee take and the easements. The
Commonwealth's appraisers agreed that the highest and best use
of the property was commercial and both used a sales comparison
method to determine valuation. Filer valued the motel parcel at
$200,376 per acre or $4.61 per square foot. Johnston estimated
the value of the motel parcel's land at $239,580 per acre or
$5.50 per square foot.
With regard to the improvements, Filer established their
depreciated cost and valued the motel and the restaurant on
their short-term contributory worth to the land, assuming that
they would continue in use for three years before being
demolished. Johnston used a sales comparison approach to value
the restaurant and an income approach to estimate the motel's
value.
6
Based on their acreage values, Filer set the value of the
fee take from the motel parcel at $42,831 while Johnston valued
the loss at $51,211. Johnston set the damages for the MCI
easement area at $7,810, while Filer determined that easement to
have a value of $9,798. Filer and Johnston set damages for the
temporary construction easement at $5,100.12 and $2,990,
respectively. Overall, Filer and Johnston determined that the
total take in fee and easements damaged the motel parcel by
$57,630 and $62,511, respectively. These appraisers determined
that there was no additional damage to the residue of the motel
parcel.
Filer set the value of the 25 acre parcel at $37,026 per
acre or $.85 per square foot. Johnston determined the value of
the 25 acre parcel to be $29,000 per acre. Accordingly, the
Commonwealth's appraisers valued the fee take from this parcel
at $3,843 and $3,016, respectively.
Applying their appraised acreage values for the land, Filer
and Johnston valued the drainage easement on the 25 acre parcel
at $137 and $331, respectively. The Commonwealth's appraisers
both determined that there were no damages to the residue of the
25 acre parcel.
Filer valued the 615 parcel at $130,680 per acre and the
take at $43,320. Johnston set this parcel's price at $50,094
per acre and the value of the fee take at $7,990. The
7
Commonwealth's appraisers both agreed that there were no damages
to the residue of the 615 parcel. Filer's total damages for the
actual take and easements was $111,229.12, while Johnston opined
that value to be $73,848.
Glass called three expert witnesses: Ivo H. Romenesko, R.
W. Tolleson, and Albert G. Sambo Johnson. Romenesko and Johnson
did not value the property by parcels, but appraised the entire
125 acre tract as a whole. Tolleson divided the tract into a
frontage section, consisting of the outside 250 feet, totaling
16.19 acres, and the remaining 108.81 acres of rear property,
and valued the two areas separately.
Tolleson determined that the frontage was worth $267,000
per acre and the rear property was valued at $64,000 per acre.
Romenesko and Johnson valued the entire 125 acre tract at
$110,000 per acre and $112,500 per acre, respectively.
All three of Glass' experts used the same methodology to
determine the total compensation due Glass as a result of the
take. Each valued the entire 125 acre tract on a per acre
value, and added his estimated values for the depreciated
improvements, including the motel, restaurant, Texaco station,
signage and parking, to determine the value of the entire tract
prior to the take. Each appraiser then determined the value of
the actual take and the easements based on the appraised price
per acre. The appraisers valued the 124.35 acre residue of the
8
entire tract on their per acre values and then subtracted the
values of the applicable easements to determine the pre-take
value of the residue. Glass' appraisers determined that the
condemnation damaged the residue of the entire tract by 10-15%,
the restaurant by 50%, the motel by 20-100%, and the Texaco
parcel by 0-15%. Finally, they added the value of the actual
take to the damages to the residue and improvements to determine
the total compensation owed to Glass.
Romenesko estimated Glass' total damages at $1,461,697. He
attributed $84,282 to the actual fee take and the easements,
$1,370,411 to damages to the residue and $91,286 to damages to
the improvements. Tolleson estimated Glass' total condemnation
compensation at $1,454,733, including $230,485 for the actual
fee take and easements and $1,224,248 in damages to the residue
and improvements. Johnson calculated Glass' total loss as a
result of the condemnation to be $2,043,356, which included
$96,302 for the actual fee take and easements and $1,947,054 for
damages to the residue and improvements.
When questioned as to the unity of use between the actual
take parcels and the additional parcels, Tolleson testified
there was "continuity of use" because of common ownership
. . . . boundaries . . . and the key thing is that the county's
land use plan is indicating that this property all be utilized
for one type of common use." However, when questioned as to the
9
actual joint use of the individual additional parcels with the
actual take parcels, Tolleson could identify none except "the
same ownership."
Romenesko identified the joint use of the actual take and
additional parcels as "to plan this as a mixed use development,
develop it for that purpose." Romenesko could not identify any
development plan.
The trial court, without objection, instructed the
commissioners that they were to make three determinations: (1)
the fair market value of the property actually taken; (2) the
damage, if any, to the residue of the actual take parcels; and
(3) the damages to the additional parcels if "there is such a
connection or . . . actual and permanent use as to make the
enjoyment of the parcels taken reasonably and substantially
necessary to the enjoyment of the additional parcels left." The
third determination was embodied in Jury Instruction 18, which
instructed the commissioners that in order to award "damages to
[the] adjoining land" they "must find [unity of use] by a
preponderance of the evidence."
On April 29, 2004, the commission issued its report
awarding Glass $105,616 for the actual fee take and easements,
$475,020 for damages to the residue of the actual take parcels,
and $1,279,880 in damages to the additional parcels, to all of
which the Commonwealth filed its exceptions. On June 30, 2004,
10
the trial court entered an Order confirming the commissioners'
report to which the Commonwealth objected. We awarded the
Commonwealth this appeal.
On appeal, the Commonwealth assigns error to the trial
court's orders which (1) allowed Glass to present evidence of
damages to the additional parcels owned by him when there was no
present unity of use between the parcels; and (2) confirmed the
report of the commissioners when the award was unsupported by
the evidence.
II. ANALYSIS
This case presents two distinct sufficiency of the evidence
issues. The Commonwealth challenges the sufficiency of the
evidence to prove the quantum of damages awarded Glass for the
actual taking of his land and the injury to the residue of the
actual take parcels. Further, the Commonwealth challenges the
sufficiency of the evidence to prove unity of use under the
unity of lands doctrine for the award of damages for the
additional parcels. This later issue presents a case of first
impression in the Commonwealth, and we shall examine it first.
A. Unity of Lands Doctrine
When a portion of a tract of land is taken by eminent
domain, the owner is entitled to recover for the damage to the
remainder of the parcel taken, but not for damage to separate
independent tracts. Bogese, Inc., v. State Highway Comm’r, 250
11
Va. 226, 228-29, 462 S.E.2d 345, 346-47 (1995). An exception to
that general rule, the unity of lands doctrine, allows an owner
to recover for damage to other tracts of land which are not part
of the actual taking when three factors are present: unity of
use, physical unity, and unity of ownership. Id. (citation
omitted). This Court has found that of the three unities, unity
of use is the most significant. See Virginia Electric and Power
Co. v. Webb, 196 Va. 555, 566, 84 S.E.2d 735, 741 (1954).
We have addressed the unity of lands doctrine on only three
prior occasions, but have not specifically addressed the unity
of use factor. In the initial case, Webb, we acknowledged the
general scope of proof necessary to show unity of use:
To constitute a unity of property within the rule,
there must be such a connection or relation of
adaptation, convenience, and actual and permanent use
as to make the enjoyment of the parcel taken
reasonably and substantially necessary to the
enjoyment of the parcels left, in the most
advantageous and profitable manner in the business for
which they are used. If the separate tracts of which
a part of one is taken are not put to a joint use,
they cannot be considered as one parcel in assessing
damages to the land not taken.
Id. (emphasis added).
While we recognized the existence of the unity of lands
doctrine in Webb, it did not apply in that case because the
record contained no evidence that the non-take parcel was
"likely to be damaged" because of the condemnation of the actual
take parcel. Id. at 567, 84 S.E.2d at 742.
12
In Town of Rocky Mount v. Hudson, 244 Va. 271, 274, 421
S.E.2d 407, 409 (1992), we held the unity of lands doctrine
could not apply because the landowner failed to prove the amount
of any alleged damages. We then addressed the unity of
ownership element of the unity of lands doctrine in Bogese, 250
Va. at 229, 462 S.E.2d at 347, and we held the landowner could
not claim damages to parcels adjoining those in the certificate
of the take because there was no common ownership between the
actual take and non-take parcels. Id. at 231, 462 S.E.2d at
348.
The case at bar squarely presents the application of the
unity of use element of the unity of lands doctrine. The
Commonwealth does not contest that the additional parcels in
this case are under the same ownership and have physical unity
with the actual take parcels. Therefore, the issue before the
commission, the trial court, and on appeal is whether the unity
of use element of the unity of lands doctrine was proved.
As noted in a leading treatise on the subject, "[i]t is for
the jury to determine the ultimate question of unity, or its
absence, and to determine whether that unity, and its loss by
reason of the taking, ultimately affects the value of the
remainder." 4A Julius L. Sackman, et al., Nichols on Eminent
Domain § 14B.04[1], at 14B-29 (rev. 3d ed. 2004). In deciding
whether the evidence is sufficient to prove the unity of lands
13
doctrine, we review the facts in the light most favorable to
Glass, the prevailing party below. Caplan v. Bogard, 264 Va.
219, 225, 563 S.E.2d 719, 722 (2002). In a condemnation
proceeding, the burden of proof rests upon a landowner to prove
the value of the land taken and the resulting damages. West v.
Anderson, 186 Va. 554, 564, 42 S.E.2d 876, 880 (1947).
When damages to additional parcels, which are not part of
the actual take parcels are concerned, the burden also resides
with the landowner to prove the elements of the unity of lands
doctrine. 4A Sackman, supra § 14B-03[1], at 14B-13 ("[T]he
condemnee must establish the unity of [the additional] parcel
with the parcel taken . . . so that a 'unity' is created and the
two become, in the eyes of the law, one.") In this case, Glass
failed to sustain his burden of proof as to the element of unity
of use.
Regardless of contiguity and unity of ownership,
ordinarily lands will not be considered a single tract
unless there is unity of use. There must be such a
connection or relation of adaptation, convenience, and
actual and permanent use, as to make the enjoyment of
the parcel taken reasonably and substantially
necessary to the enjoyment of the parcel left, in the
most advantageous and profitable manner in the
business for which it is used.
Id. at 14B-14 (emphasis added).
The Commonwealth argues that it is a necessary condition
precedent to consideration of the unity of use between the
actual take parcels and any additional parcels that there be an
14
actual, permanent and present joint use of all the parcels as of
the date of take. This argument matches the pertinent language
from Jury Instruction 18 which directed there must be a finding
of "actual and permanent use" and that the separate tracts are
being "put to a joint use," on the date of the take. It is
apparent from the language in Webb, and in the Nichols treatise,
that the actual joint use must be a present use at the date of
take, not a use that might occur at some future date. Glass
responds there was such an actual, permanent and present joint
use of the actual take and additional parcels (the entire 125
acre tract) as a commercial property for future development
pursuant to his "business plan."
The evidence was consistent that at the date of take,
December 6, 2001, the motel parcel was used to conduct Glass’
motel and restaurant business, that the 25-acre parcel was
substantially unimproved but contained some parking for the
motel and restaurant business and that the 615 parcel was
totally unimproved. The record is devoid of any evidence of an
actual joint use Glass was making of any of the additional
parcels in conjunction with the motel and restaurant business,
the only uses of the actual take parcels on December 6, 2001.
The evidence was uncontested that of the additional parcels,
only the Texaco parcel and the cell tower parcel had any actual
15
use at the date of take, and those uses were related in no way
to the motel and restaurant use of the actual take parcels.
Glass contends, however, that the actual joint use of the
actual take and additional parcels is not limited to the motel
and restaurant use, but that there was another present joint use
in existence on the date of the take. Glass posits there was an
actual common use of the entire 125 acre tract under his
“business plan” at the date of take. The trial court had
characterized this "business plan" as “to use all of the
property in a fashion to maximize his investment, which was
contemplated as commercial use, consistent with the County of
Louisa’s comprehensive plan . . . ”
Glass contends the business plan for the 125 acre tract was
“commercial development” and that was the actual joint use of
the entire 125 acre tract on December 6, 2001, thus constituting
unity of use. In support of that construct, Glass testified
that he retained a surveyor prior to the date of the take to
conduct a survey of the entire tract which would have combined
the actual take parcels with the additional parcels. However,
the survey was never completed. Glass also introduced evidence
from a member of the Louisa County Board of Supervisors that the
County would, at an unknown future date, rezone the entire tract
to a uniform commercial zoning. However, the evidence was
uncontested that at the date of the take, the actual take
16
parcels were partly zoned commercial and agricultural while the
additional parcels were primarily zoned agricultural and
residential. No evidence was introduced as to any prospective
change in the zoning for the Fluvanna County portion of any of
the affected parcels.
Glass also contended that there was a “business plan” for
“commercial development” because the County of Louisa had
adopted a plan to extend sewer and water service to Glass’s
property at an unknown future date. Even without the public
sewer and water, Glass testified that his private sewer system
currently served the property and had excess capacity to support
other commercial development. Glass also offered into evidence
the fact that the Louisa County comprehensive plan designated
his property for commercial development. Taken as a whole,
Glass argued his evidence showed a unity of use between the
actual take and additional parcels for "commercial development"
under his "business plan."
The record affirmatively demonstrates, however, that Glass'
"business plan" was an illusion. Glass had no site plan or plat
of the 125 acre tract as of the date of take. Glass had
expended nothing for any development expense regarding
engineering, site development, financing or anything else that
is reflected in the record. There was no evidence Glass had any
firm offers, much less a contract, lease, or other binding
17
document from any entity to purchase or develop any part of the
125 acre tract. There was no evidence Glass, personally, had
any plans to develop any part of the 125 acre tract for any
specifically identifiable purpose.
Glass testified, “I didn’t know where to put something on
the property. I was afraid if I put something here, something
would come along later and mess that up. So I hadn’t done a
thing so far on it.” Glass similarly testified that he had no
master plan to develop the property because “when you start out
with a big tract of land, and you don’t have a master plan of
it, you’re going to mess up and maybe put something in the wrong
spot for something later.”
Glass' experts were no more specific. Tolleson identified
common boundaries and common ownership, two elements of the
unity of lands doctrine not at issue, but could only offer the
county's land use plan as evidence of an actual, present and
joint use. Romenesko was similarly vague in identifying a
future "mixed use development" as a joint use. None of Glass'
experts identified any specific use to which the property was to
be put at the time of the take or in the future.
In City of Virginia Beach v. Oakes, 263 Va. 510, 515, 561
S.E.2d 726, 728 (2002), a landowner in an eminent domain
proceeding attempted to prove damages for the value of his
property based on an office building he envisioned might be
18
built upon the property. The landowner had no site plan,
building permit, architectural drawings, contract to sell or
lease, or any other evidence of the office building other than
his conjecture. See id. at 517, 561 S.E.2d at 729. We held
that the evidence of damages in that case was “speculative and
remote” and could not be the basis for a recovery for the
landowner. Id.
Similarly in this case, the evidence of Glass' "business
plan" for "commercial development" is too remote and speculative
to establish any unity of use between the actual take parcels
and the additional parcels at the date of the take. Taking all
the evidence in the light most favorable to Glass, there is a
showing of no more than a vague hope that his combined property
would be valuable for an unknown future commercial development
purpose.
In City of San Diego v. Neumann, 863 P.2d 725, 730 (Cal.
1993), the Supreme Court of California addressed a unity of use
issue similar to the case at bar. Justice Mosk, in a cogent
dissent delineating the concept of unity of use, described the
landowner's claim in that case in terms aptly analogous to
Glass’ claim for the additional parcels.
Defendants do not claim any present damage to the
remainder in this case. They can use their remaining
land precisely as they have always done. Instead,
they want the government, with its deep pocket, to be
the guarantor that they will realize the opportunity,
19
but face none of the risk of the market. They want
the government to pay them for what the market for
developed property would pay for land they still own,
even though they have taken no risk in seeking to
develop their land and have no firm plans to do so.
The balance of interests required by the law of
eminent domain, to say nothing of the real estate
market, is disturbed when we require compensation for
such a speculative claim from the government–read:
taxpayers.
Id. at 738 (Mosk, J., dissenting).
The evidence in this record shows there was no actual and
present joint use between the additional parcels and the only
proven use of the actual take parcels as a motel and restaurant.
Further, the evidence of the parcels as an actual joint and
present use as a commercial development was too remote and
speculative to be credible. Mere possibility or conjecture that
there may be a prospective joinder of the additional parcels in
a unified but unknown development with the actual take parcels
does not suffice to constitute unity of use in a condemnation
proceeding.
If the trial court's judgment as to the additional parcels
were affirmed, it would transform
severance damages into a cash cow for landowners who
happen to have a portion of their land taken by
eminent domain. Not only are landowners to be
compensated for the highest and best use of the land
taken, but as to the remainder, landowners may make a
claim for severance damages on the basis of nothing
more than the dream of a business plan, regardless of
the use to which the land itself has been put or any
actual damage to the owner’s use and enjoyment of the
20
land. . . . In short, the taxpayers [cannot be]
ordered to pay for a dream.”
Id. at 743-45. Because the evidence was insufficient to
prove unity of use, the trial court erred in confirming the
commissioners' report insofar as it awarded any damages to
Glass for the additional parcels.
B. Value of the actual take and residue
The commission is entitled to consider the view of the
property and the "testimony in open court on the issues joined,"
Code § 25.1-232, but they may not award compensation based on
the view alone. Highway Comm'r v. Foster, 216 Va. 745, 747-48,
222 S.E.2d 780, 782 (1976).
The commission is not bound by the "range of values given
in evidence." Id. at 747, 222 S.E.2d at 781. However, "they
may not take arbitrary or capricious action and return awards
not related to the value of the property." VEPCO v. Patterson,
204 Va. 574, 578, 132 S.E.2d 436, 439 (1963). Whether the award
in a particular case bears a reasonable relationship to the
testimonial evidence depends upon the facts and circumstances
disclosed by that evidence. Foster, 216 Va. at 748, 222 S.E.2d
at 782.
1. Actual fee take and easements
The commission's award of $105,616 for the property taken
in fee from the actual take parcels falls within the range of
21
the estimated value to which Glass' experts testified. Johnson
valued the fee take, easements and loss of signage at $96,302.
Tolleson valued the same items at $230,485, while Romenesko set
the damages at $84,282.
We have noted that the commission is not bound by the
particular values given in evidence. See, e.g. Foster, 216 Va.
at 747, 222 S.E.2d at 781. In fact, we have approved awards
that exceed the values to which the appraisers testified if the
awards are supported by the evidence. See id. at 746-49, 22
S.E.2d at 781-83. In this case, because the "award was within
the range of value shown by the evidence," we find that there is
sufficient evidence to support it. State Highway Comm'r v.
Frazier, 214 Va. 556, 558, 203 S.E.2d 350, 352 (1974).
2. Damages to the residue of the actual take parcels
In every eminent domain case involving a partial
taking, the measure of damages to the residue of the
property not taken is the difference in the fair
market value of the residue immediately before and
immediately after the taking.
Oakes, 263 Va. at 516, 561 S.E.2d at 728-29 (citations
omitted). The burden is upon the owner of the property
condemned to prove by a preponderance of the evidence that
there has been damage to the residue. Hudson, 244 Va. at
273, 421 S.E.2d at 408. Where the evidence is conflicting,
the commissioners' report will not be disturbed except upon
22
clear proof that it is based on erroneous principles.
VEPCO, 204 Va. at 577-78, 132 S.E.2d at 439.2
Glass' appraisers testified that the fee take and easements
damaged the residue of the actual take parcels and their
improvements by an average total of $797,178.67. Though the
Commonwealth presented conflicting evidence on each of these
points, the commission was entitled to weigh the testimony of
the parties' experts and find for Glass. "With respect to
damages to the residue, the commissioners were not bound to
accept the value opinions of the experts if they determined that
they were not fairly supported by facts and circumstances."
Foster, 216 Va. 745, 748-49, 222 S.E.2d at 782. Thus, the
commission's award of $475,020 for damages to the residue of the
actual take parcels is supported by the testimony of Glass'
experts.3
2
The Commonwealth contends that because Glass' experts
"appraised all of Glass' land as one 125 acre parcel, the trial
commissioners had no evidentiary basis to award damages to [the
residue of] the affected parcels because the expert's opinion of
damages could not be broken down between the affected parcels
and the additional parcels." The per acre values for the entire
property provided by Glass' experts did include the actual take
parcels so the commissioners could extrapolate the value of each
separate parcel.
3
The Commonwealth also contends that in calculating damages
to the residue, Glass "double dip[ped]" by "first valuing his
property on its highest and best use as future commercial
development" and then claiming "damages to his current
improvements which were at the end of their economic life and
. . . incompatible with any future development." The
Commonwealth made no objection to the admission of this evidence
23
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the trial court confirming the award of damages for the value of
the property actually taken and for the damages to the residue
of the actual take parcels. We will reverse the judgment of the
trial court confirming the award of damages for the additional
parcels because the evidence failed to prove unity of use for
application of the unity of lands doctrine.
Affirmed in part,
reversed in part,
and final judgment.
of damages for incompatible uses, nor did it take exception to
the commissioners' report for that reason. Thus, the
Commonwealth's argument is barred by Rule 5:25.
24