2.3 LIMITS ON POWER OF EMINENT DOMAIN
2.301 Just Compensation. Property may not be taken or damaged for public use without just compensation. 38 Just compensation is defined for proceedings brought by the Commissioner as the value of the property to be taken and the damages, if any, which may accrue beyond the enhancement in value, if any, to such residue by reason of such taking and use by the Commissioner. 39 Compensation shall be no less than the value of the property taken, lost profits, lost access, and damages to the residue caused by the taking. 40 The terms "lost profits" and "lost access" have been defined by the General Assembly pursuant to the Virginia Constitution. 41 Enhancement in value is not offset against the value of the property taken, and if the enhancement in value exceeds the damage, there is no recovery against the landowner for the excess. 42
The owner of property is entitled to "just compensation." He or she is not entitled to receive a bonus beyond such compensation. 43 Furthermore, just compensation is not required in every case of financial loss but is limited to losses from identifiable property rights. 44 Just compensation may include
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compensation for the cost of relocating personal property, if required. 45 For eminent domain purposes, property includes personal property taken or damaged for a public use. 46
2.302 Taking or Damaging for Public Use.
A. Public Use Defined. The taking must be for public and not private use. 47 The term "public use," from the standpoint of eminent domain, is defined by section 1-219.1 of the Virginia Code. The portion of the definition relevant to the Commissioner is the acquisition of property where:
(i) the property is taken for the possession, ownership, occupation and enjoyment of property by the public or a public corporation; (ii) the property is taken for construction, maintenance or operation of public facilities by public corporations or by private entities provided that there is a written agreement with a public corporation providing for use of the facility by the public; or (iii) the property is taken for the functioning of any public service corporation [or] public service company. 48
As defined in the statute, public corporations include the Commonwealth of Virginia and its political subdivisions, incorporated municipalities, and public agencies. 49 Case law provides that (i) the public use must be fixed and definite, (ii) the use must be substantially beneficial to the public, and (iii) the necessity of condemnation must be obvious. 50 In Stewart v. Fugate, 51 the court found that "[w]hether a taking for a road is for a public purpose is a
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judicial question reviewable by the courts." 52 The property owner may challenge whether the taking or damaging is for a public use during the condemnation proceedings, 53 but the property owner is not entitled to a jury trial on the issue of public use. 54 However, Section 11 of Article I of the Virginia Constitution places the burden of proof of public use on the condemnor and removes any presumption regarding it. 55 During condemnation proceedings, the property owner may also challenge whether the stated public use is a pretext for an unauthorized use or whether the taking or damaging of property is a violation of section 1-219.1(D). 56
Once the public purpose has been established, the necessity for a road and its location are legislative powers that have been delegated to the Commissioner of Highways. The discretion of the Commissioner is reviewable by the court only if it is shown to have been "arbitrarily and capriciously exercised or where there is manifest fraud." 57
B. Taking Defined. 58 Not every diminution of property value constitutes a taking. In Commonwealth ex rel. State Water Control Board v. County Utilities Corp., 59 for example, the court held:
All citizens hold property subject to the proper exercise of the police power for the common good. Weber City Sanitation Commission v. Craft, 196 Va. 1140, 1148, 87 S.E.2d 153, 158 (1955). Even where such an exercise results in substantial diminution of property values, an owner has no
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right to compensation therefor. Miller v. Schoene, 276 U.S. 272 (1928); Hadacheck v. Sebastian, 239 U.S. 394 (1915). 60
C. Damages Defined.
1. In General. In Potomac Electric Power Co. v. Fugate, 61 the court held:
[T]he word "damaged" as used in that section means damaged in the legal sense, that is, damage resulting from a legal invasion, as opposed to a mere physical invasion, of property or property rights. The constitutional requirement of compensation does not . . . import the necessity of payment in every case where financial loss, giving the word "damage" its ordinary rather than its legal meaning, might be shown as the result of a public undertaking.
Since the adoption of section 6 of the 1902 Virginia Constitution, the citizen whose property is "damaged" by a public use is on a par with the citizen whose property is taken for public use. 62
It is not necessary that there be an actual physical invasion of the property to recover for damages. 63 The Supreme Court placed limits upon this black-letter statement in Lambert v. City of Norfolk, 64 City of Lynchburg v. Peters, 65 and subsequent cases holding that there must be a direct and special effect upon the "property itself, or some appurtenant right or easement connected therewith, or by the law annexed thereto." 66 Taking or damaging in the constitutional sense means that the governmental action adversely
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affects the landowner's ability to exercise a right connected to the property. 67 The government's constitutional obligation to pay just compensation is not limited to damages caused by its affirmative and purposeful acts; the government's failure to act when it has a duty to do so can give rise to compensable damage. 68
2. Lost Access and Lost Profits. Article I, Section 11 of the Virginia Constitution expands just compensation to include "lost...
