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 

counterclaim.1

 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 

or right of eminent domain.2

 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 

affirmed.3

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.