PRESENT: Lemons, C.J., Mims, Powell, Kelsey, and McCullough, JJ., and Lacy and Millette, 

S.JJ. 

VIRGINIA ELECTRIC AND POWER COMPANY,

D/B/A DOMINION VIRGINIA POWER

 OPINION BY

v. Record No. 150877 JUSTICE CLEO E. POWELL

 June 16, 2016 

WALTER E. HYLTON

FROM THE CIRCUIT COURT OF WISE COUNTY

John C. Kilgore, Judge 

Virginia Electric and Power Company, d/b/a Dominion Virginia Power (“Dominion”) 

appeals the decision of the trial court dismissing its petition for condemnation. Additionally, 

Dominion appeals the trial court’s decision to award attorneys’ fees to the respondent, Walter E. 

Hylton (“Hylton”). Dominion further takes issue with the trial court’s denial of its motions in 

limine regarding evidence related to the separate value of coal reserves on the property, the value 

of a non-existent surface mine on the property and the devaluation of the surrounding property. 

I. BACKGROUND

 On December 3, 2007, Dominion applied for certificates of public convenience and 

necessity from the State Corporation Commission (“SCC”). Dominion’s application related to a 

proposed 138 KV double circuit transmission line that would connect Dominion’s recently 

approved power plant in Wise County with an existing substation in Russell County. On July 11, 

2008, the SCC issued a final order granting Dominion the necessary certificates.

 On November 6, 2008, Dominion’s agent delivered to Hylton a written offer to purchase 

a 7.88 acre easement on his property for $19,100, to construct the transmission line. At the time, 

Hylton owned approximately 354 acres across 20 contiguous tracts and 2 non-contiguous tracts. 

He owned the surface and mineral rights of some tracts and only the mineral rights of others. 
2

 As part of its offer, Dominion included a copy of its appraisal of the property subject to 

the easement and the damage to the residue. The appraisal had been prepared by Michael Elwell 

(“Elwell”), a certified general appraiser. Elwell based his appraisal on his inspection of the 

property, information from Hylton, public records, and a survey from Dominion. Elwell 

certified that the appraisal conformed to the Uniform Standards of Professional Appraisal 

Practice and was based on his personal, unbiased professional analyses and opinions, not “a 

predetermined value or direction in value that favors the . . . client.” 

The appraisal stated the easement crossed three tax parcels that represented only 65 of 

Hylton’s approximately 354 acres. Elwell noted that the property subject to the easement was 

zoned for Agricultural-Rural Residential uses and contained no improvements. Elwell noted the 

area’s “primary land uses” were residential and agricultural and determined that the property’s 

highest and best use was “rural residential and agricultural use.” Elwell’s appraisal 

acknowledged that, according to Hylton, two major coal seams run through or near the property 

subject to the easement and that Hylton’s ability to sell or lease the associated mineral rights 

might be damaged if a power line is erected on the seams. However, Elwell instructed Hylton to 

discuss the issue of subsurface minerals with Dominion as they involve “engineering and 

operations issues.” As such, Elwell did not consider the mineral rights in determining the fair 

market value of the property.

 On February 19, 2009 (the date of the “take”) the parties signed an agreement granting 

Dominion the right to enter Hylton’s property and construct the transmission line. On March 4, 

2010, Dominion filed its petition for condemnation of the 7.88 acre easement on Hylton’s land. 

In Paragraph 10 of the petition, Dominion alleged that it “has complied with all of its statutory 

obligations associated with the exercise of eminent domain as to the Easement.” Further, 
3

Paragraph 11 of the petition alleged that “Dominion had complied with Code § 25.1-204 by 

making a bona fide offer to purchase the Easement . . . , but Dominion and Hylton have been 

unable to agree on price.” The petition was limited to the surface use of Hylton’s property; it did 

not seek to condemn any mineral rights.

 On June 17, 2010, Hylton filed his Answer and Grounds of Defense. Hylton expressly 

admitted the allegations contained in Paragraph 10 of Dominion’s petition. However, Hylton 

went on to admit that Dominion “may feel that a bona fide offer of purchase has been made, 

however, [Hylton] denies the sufficiency of the offer, so, accordingly, the allegations of 

Paragraph 11 are DENIED.” Hylton expressly elected to proceed with the empanelment of a 

jury for the determination of just compensation. 

On February 2, 2011 and February 8, 2011, Hylton filed praecipes certifying that the case 

was mature for trial on the merits and requesting the trial be set. On July 18, 2011, Hylton 

petitioned the trial court pursuant to Code §§ 25.1-224 and -243, to compel Dominion to pay him 

the $19,100 Dominion had offered. Dominion did not object and the court ordered Dominion to 

pay that sum to Hylton. 

 Discovery revealed that, after the take, Hylton hired Phillip Lucas (“Lucas”), a mining 

engineer, to investigate coal on Hylton’s property. Lucas was expected to testify as an expert at 

trial. Lucas was expected to testify that the development of coal deposits on Hylton’s property, 

including those deposits under the property at issue, “was consistent with one of the highest and 

best uses of the property on the date of valuation.” Lucas was further expected to testify about 

analysis of several coal seams on the property as well as surface mine plans he developed. It was 

admitted, however, that, at the time of the take, there were no surface mining permits on 
4

Hylton’s property. Lucas further opined that all coal reserves under the take area were lost and 

unrecoverable as a result of the take.

 Additionally, it was revealed that, for many years prior to the take, Rapoca Energy 

Company (“Rapoca”) had leased an underground deep mine on Hylton’s property. The mine 

partially extended under the property at issue. However, Rapoca had ceased mining operations 

prior to August 1, 2008, the mining permit was in “temporary cessation,” the mine was now 

flooded and Rapoca had no plans to reopen the mine. However, Hylton claimed that Rapoca 

continued to pay Hylton the minimum royalties required under the lease.

 On September 27, 2011, Dominion filed a motion in limine seeking (in relevant part) to 

prohibit Hylton from presenting evidence at trial of “the separate value of coal” on the property, 

“damage of any kind to any tracts not taken in these proceedings,” and “damages for duplicative 

or inconsistent claims.” After briefing and argument, the trial court ruled: 

The motion is denied insofar as it seeks to exclude from the trial 

the evidence of the separate value of coal, damage of any kind to 

tracts no part of which have been taken in these proceedings, the 

value of a potential surface coal mine, royalty income, the value of 

royalty income of a surface mine, and royalty income and the value 

of royalty income of an underground mine. 

 On April 18, 2012, Hylton requested the trial court set the case for trial to determine the 

just compensation issue. The trial court set the trial for November 26, 2012. 

 On October 9, 2012, Hylton deposed Elwell. Elwell testified that he had been licensed in 

Virginia for about nine months when he conducted the appraisal, that he had never appraised 

coal reserves, and that he was unfamiliar with and not qualified or trained in mineral evaluation. 

Elwell admitted that, although Hylton told him the property was leased for “mineral extraction” 

and he was concerned about damage to his coal, Elwell did not get a copy of the mining lease 

and did not ask whether the property was producing income. Elwell explained that his appraisal 
5

focused solely on surface rights and, therefore, he did not look at the plans for the towers or 

consider their impact on the value of the property.

 On October 23, 2012, Hylton filed a motion to dismiss the petition. Hylton argued that 

Dominion’s pre-petition offer to purchase the condemned property was not a bona fide offer, as 

required by Code § 25.1-204. Therefore, according to Hylton, Dominion had failed to meet the 

jurisdictional requirements necessary to institute the present case. Hylton claimed that 

Dominion’s offer was not bona fide because Elwell’s appraisal 1) only considered 65 acres out 

of Hylton’s approximately 354 acres, 2) did not consider the existing deep mine lease, 3) did not 

use the proper valuation technique, 4) misidentified the highest and best use of the property, 5) 

failed to consider the loss of coal under the towers that Dominion’s mining expert conceded 

would have a value of $84,258, 6) failed to consider a newer survey in favor of tax records, 7) 

failed to include the mineral rights, and 8) only represented approximately 22.9% of the actual 

value of the property according to Dominion’s mining expert. In response, Dominion argued 

that Hylton had waived the issue as to whether the offer was a bona fide offer to purchase 

because Hylton had not objected to the issue in his answer and grounds for defense. Dominion 

further argued that its offer was made in good faith and, therefore, was a bona fide offer to 

purchase. After considering the parties’ arguments on the matter, the trial court indicated that it 

would grant the motion to dismiss.

 On December 13, 2012, Hylton filed a motion for costs, expenses, and attorney’s fees 

pursuant to Code § 25.1-419. In an April 22, 2013 letter opinion, the trial court informed the 

parties that, because it had determined that Dominion could not acquire the property by 

condemnation, Hylton’s motion for costs, expenses, and attorney’s fees pursuant to Code § 25.1-

419 was “well taken.” 
6

 On August 1, 2013, the trial court entered an order granting Hylton’s motion to dismiss. 

In its order, the trial court determined that Hylton had not waived the issue of jurisdiction 

because, in his answer and grounds for defense, Hylton sufficiently denied that Dominion had 

complied with Code § 25.1-204. The trial court further found that Dominion’s offer was 

“deficient” because

(1) [the] appraiser made no comparative judgment as to what is the 

highest and best use of the property; (2) the appraiser did not 

consider coal or mineral estate of the property, but appraised only 

the surface when the landowner owned surface and mineral rights; 

(3) the appraiser did not consider that the property was income 

producing from an existing permitted deep mine lease; (4) the 

appraiser did not examine the plans or consider damage to the 

landowner’s remaining residue property from the concrete and 

steel towers placed on the property and resulting effect on future 

surface and subsurface usage; (5) the appraiser did not appraise all 

of the landowner’s tracts of land but only 65 acres of the total 350 

acres, which were only four of the landowner’s twenty contiguous 

tracts.

According to the trial court, an appraisal with such deficiencies could not be considered a 

bona fide offer. It further found that Dominion “either failed to review its appraisal or approved 

the appraisal with its many facial deficiencies. Either of which would preclude any argument 

that [Dominion’s] offer to Hylton was made in good faith.” 

 Although the trial court granted the motion to dismiss, it refused to enter a final order 

“until such time as the [trial court] takes evidence and decides by final written order the 

remaining issues in the competing motions for reimbursement filed by the parties.” The trial 

court went on to explain that, because Dominion cannot acquire Hylton’s property by 

condemnation, Code § 25.1-419 applies. It granted Hylton’s motion for costs and fees and 

ordered an evidentiary hearing to determine the amount. 

Prior to the evidentiary hearing, the parties stipulated that the fee agreement that Hylton 

entered into with his attorneys only obligated Hylton to pay necessary expenses, a “contingent 
7

fee of 33 1/3 % of all sums recovered over the [$19,100] offer,” and an hourly fee of $100 per 

hour for appeal work. Paragraph 9 of the fee agreement also provided that “if representation is 

terminated prior to the conclusion of the case, the attorneys shall be entitled to receive from the 

proceeds of any recovery a reasonable fee for the work the attorneys have performed and the 

costs incurred.” 

 The parties further stipulated that neither of Hylton’s attorneys prepared an invoice for 

their services until after the trial court announced it was granting the motion to dismiss. One of 

Hylton’s attorneys admitted that he failed to keep any records of his time and his invoice was 

“based upon an estimate that he worked 50% of the time” that the other attorney worked on the 

case. The parties also agreed that Hylton had never been billed for any of the attorneys’ fees 

claimed, nor had either attorney ever requested payment. 

After considering the matter, the trial court issued a letter opinion finding that Hylton’s 

attorneys’ fees accrued and were incurred when their services were rendered. The trial court 

further found that this case presented a “rare set of facts in which a state actor is unable to 

exercise its power of eminent domain due to its own bad faith.” As a result, Hylton had “been 

forced by state action” to incur significant costs and expenses, his counsel had expended 

significant time and effort, and failure to compensate him and his counsel for reasonable costs, 

expenses, and fees “would be not only unreasonable, but unconscionable.” Furthermore, the trial 

court determined that it would be unreasonable “to expect Mr. Hylton or his counsel to anticipate 

or plan for such an outcome when drafting and executing their fee agreement.” Therefore, the 

trial court determined that, under Code § 25.1-419, Hylton was entitled to $312,575.10 in 

attorneys’ fees and $141,866.07 for costs and expenses. After crediting Dominion $39,198.95 
8

for fees it had already paid, the trial court awarded Hylton $415,242.22. 

 Dominion appeals. 

II. ANALYSIS

 In its appeal, Dominion raises five assignments of error. Its first assignment of error 

contends that the trial court erred by finding that its offer was not a bona fide offer. The second 

assignment asserts that Hylton was procedurally barred from raising an objection related to the 

bona fides of Dominion’s offer. Dominion’s third and fourth assignments of error relate to the 

trial court’s subsequent decision to award attorneys’ fees as a result of the trial court’s decision 

to grant Hylton’s motion to dismiss. Finally, in its fifth assignment of error, Dominion takes 

issue with the trial court’s decision to deny its motion in limine.

A. Hylton’s Motion to Dismiss

 We begin by noting that Dominion’s first four assignments of error all relate to Hylton’s

motion to dismiss. Of those assignments of error, the second presents a procedural question and 

a reversal on this matter will render the remaining assignments of error related to the motion to 

dismiss moot. Accordingly, we will address Dominion’s second assignment of error first.

 In its second assignment of error, Dominion argues that Hylton waived his objection to 

the trial court’s jurisdiction over the condemnation proceeding because he failed to raise his 

objection in a timely manner. Dominion contends that Hylton was required to raise any 

objection to jurisdiction in his answer and grounds of defense. According to Dominion, Hylton 

failed to do so and, therefore, has waived any objection to jurisdiction. Dominion further asserts 

that Hylton expressly waived his objection to the trial court’s jurisdiction by conceding that 

Dominion had met all the statutory prerequisites for bringing the condemnation action. 

Dominion also relies on the fact that Hylton took a number of steps that indicated that he agreed 
9

that the jurisdictional prerequisites had been met, such as granting Dominion right of entry and 

possession of the property as well as seeking and receiving compensation for certain litigation 

costs.

 In response, Hylton argues that he timely raised his objection to the trial court’s 

jurisdiction because “[n]o statute required Hylton to challenge Dominion’s offer in his answer.” 

Therefore, according to Hylton, he could file his motion to dismiss at any point during the 

litigation once he had an adequate basis for doing so. He further contends that his denial of the 

allegations in Paragraph 11 of the petition for condemnation indicated that he was not waiving a 

challenge to the bona fides of Dominion’s offer. 

In deciding this issue, we must again revisit the meaning of the term “jurisdiction.”

The term jurisdiction embraces several concepts including subject 

matter jurisdiction, which is the authority granted through 

constitution or statute to adjudicate a class of cases or 

controversies; territorial jurisdiction, that is, authority over 

persons, things, or occurrences located in a defined geographic 

area; notice jurisdiction, or effective notice to a party or if the 

proceeding is in rem seizure of a res; and “the other conditions of 

fact [that] must exist which are demanded by the unwritten or 

statute law as the prerequisites of the authority of the court to 

proceed to judgment or decree.” 

Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990) (quoting Farant Inv. Corp. v. 

Francis, 138 Va. 417, 427-28, 122 S.E. 141, 144 (1924)). 

 Subject matter jurisdiction is clearly not implicated in the present case. The bona fide 

effort requirement of Code § 25.1-204 does not “define the class of cases . . . over which the 

circuit court has authority to adjudicate.” Board of Supervisors v. Board of Zoning Appeals, 271 

Va. 336, 344, 626 S.E.2d 374, 379 (2006). Rather, it is clear that subject matter jurisdiction to 

hear condemnation cases is conferred upon the circuit courts by Code § 25.1-201. Therefore, the 

bona fide effort requirement of Code § 25.1-204 falls into the category of “other jurisdictional 
10

elements” which “generally will be considered waived unless raised in the pleadings filed with 

the trial court.” Morrison, 239 Va. at 170, 387 S.E.2d at 756. In other words, the existence of a 

bona fide offer “is a procedural requirement which is deemed waived if an objection is not timely 

raised.” Hewitt v. Virginia Health Servs. Corp., 239 Va. 643, 645, 391 S.E.2d 59, 60 (1990). 

 Although the procedural framework of condemnation proceedings contains many 

statutes, only Code § 25.1-2131 addresses when and how a landowner must raise an objection to 

the trial court’s jurisdiction. Code § 25.1-213 states, 

 1 Hylton notes that, in its argument to the trial court on this issue, Dominion did not rely 

upon or even mention Code § 25.1-213; instead, Dominion relied on Code § 25.1-219. Although 

he never expressly argues this point, it is clear that Hylton is implicitly arguing that Dominion 

has failed to preserve any argument related to Code § 25.1-213. See Rule 5:25. We disagree. 

Preservation under Rule 5:25 does not require a party to precisely reference the exact 

statute or rule upon which they rely in making an argument. Rather, a party need only give the 

trial court “sufficient ‘notice of the substance of the objection.’” Landrum v. Chippenham & 

Johnston-Willis Hosps., Inc., 282 Va. 346, 353 n.7, 717 S.E.2d 134, 137 n.7 (2011) (quoting 

Overton v. Slaughter, 190 Va. 172, 179, 56 S.E.2d 358, 361 (1949)). Here, Dominion argued 

that Code § 25.1-219 prohibits the trial court from considering the jurisdictional issues because 

Hylton failed to raise a timely objection to the trial court’s jurisdiction. In its sur-reply to 

Hylton’s motion to dismiss, Dominion pointed out that “[t]he time and manner of raising and 

deciding challenges to jurisdictional issues may properly be limited by statute and have been so 

limited.” (Emphasis added.) Dominion further asserted that 

a determination that a bona fide offer was made is only 

jurisdictional to the extent that there is an objection raising the 

issue. Without a proper objection to jurisdiction, no jurisdictional 

issue arose, and the court has complete jurisdiction to proceed to 

adjudicate [the] just compensation phase. 

 Additionally, we note that Dominion’s citation to Code § 25.1-219(B) would have alerted 

the trial court to the nature of Dominion’s argument. The statute states, in relevant part: 

[I]f no answer and grounds of defense has been filed objecting to 

the jurisdiction of the court to hear the case and to proceed with the 

appointment of commissioners or the empanelment of a jury, the 

court shall enter an order fixing a date for the trial of the issue of 

just compensation. 

Id. (emphasis added). 

Accordingly, we find that the trial court had sufficient notice of the substance of 

Dominion’s objection and, therefore, Rule 5:25 does not bar our consideration of Dominion’s 

argument related to Code § 25.1-213. 
11

Within 21 days of the service [of the petition for condemnation] 

any such owner who desires to assert any objection or defense to 

the taking or damaging of his property or to the jurisdiction of the 

court to hear the case, and to make his election to proceed with 

either the appointment of commissioners or the empanelment of a 

jury, shall file (i) his answer and grounds of defense designating 

the property in which he claims to be interested, (ii) the grounds of 

any objection or defense to the taking or damaging of his property 

or to the jurisdiction of the court to hear the case, and (iii) his 

election to proceed with either the appointment of commissioners 

or the empanelment of a jury for the determination of just 

compensation. 

(Emphases added.) 

 Thus, Code § 25.1-213(ii) makes it clear that a landowner objecting to a trial court’s 

jurisdiction over a condemnation proceeding must raise the issue within 21 days of being served 

with the petition for condemnation as part of the answer and grounds of defense. We note that 

no objection was raised to the fact that Hylton did not file his answer and grounds of defense 

within the required 21 days2

, therefore, the question before this Court is limited to whether 

Hylton sufficiently asserted his objection to the trial court’s jurisdiction to hear the case and the 

grounds therefore in his answer and grounds of defense. As “we are in an equal position with the 

court below to judge the sufficiency of the pleadings,” our review of whether Hylton sufficiently 

raised an objection in his pleadings is conducted de novo. Byler v. Virginia Elec. & Power Co., 

284 Va. 501, 507, 731 S.E.2d 916, 920 (2012). 

 As an initial matter, Hylton’s answer and grounds of defense does not contain any 

mention of the terms “object,” “objection,” or “jurisdiction.” Although his answer and grounds 

of defense contains a general denial to the allegations in Paragraph 11 of the petition for 

condemnation, the context of this denial indicates that it is based on the sufficiency of 

 2

 The record demonstrates that Hylton did not file his answer and grounds of defense 

until 104 days after being served with the petition for condemnation. 
12

Dominion’s offer. Notably, in the next paragraph of his answer and grounds of defense, Hylton 

elected to proceed with the empanelment of a jury for the determination of just compensation. 

Thus, Hylton’s denial of the sufficiency of the offer, when read in conjunction with the 

subsequent request for a determination of just compensation, indicates that Hylton only took 

issue with the amount of Dominion’s offer. 

 We note, however, that an offer deemed insufficient by a landowner will almost always 

involve a figure not likely to be accepted. As we have expressly recognized that a bona fide 

offer “need not be the figure likely to be accepted,” Norfolk Redev’t & Hous. Auth. v. Baylor, 

214 Va. 1, 3, 197 S.E.2d 335, 337 (1973), it is clear that an insufficient offer, without more, is 

not a valid basis for finding that an offer was not a bona fide offer. Therefore, Hylton’s general 

denial of Paragraph 11 of the petition for condemnation based on his disagreement with the 

sufficiency of Dominion’s offer cannot be considered an objection to the bona fides of the offer. 

 Thus, we can find nothing in Hylton’s answer and grounds of defense that gives either the 

trial court or Dominion any indication that he was objecting to the trial court’s jurisdiction based 

on Dominion’s alleged failure to make a bona fide offer. Therefore, we find that Hylton waived 

his objection to the trial court’s jurisdiction over this matter by failing to timely raise an 

objection as required by Code § 25.1-213(ii). Accordingly, we will reverse the decision of the 

trial court to grant the motion to dismiss and remand the matter for further proceedings.3

B. Dominion’s Motion in Limine 

 In its remaining assignment of error, Dominion argues that the trial court erred in denying 

its motion in limine. Specifically, Dominion takes issue with the trial court’s decision to allow 

 3

 Our determination that Hylton was procedurally barred from raising his objection to the 

trial court’s jurisdiction renders the remaining assignments of error related to the Hylton’s 

motion to dismiss moot.
13

Hylton to present evidence related to 1) the separate value of the coal reserves on the property; 2) 

the value of a possible surface mine on the property; and 3) the devaluation of the neighboring 

tracts not subject to the take. 

1. Separate Value of the Coal Reserves

 Dominion contends that the trial court erred in denying its motion in limine with regard 

to the separate value of the coal reserves on the property to be condemned because such evidence 

is inadmissible. Dominion acknowledges that Hylton could offer evidence of the existence of 

coal on the property to establish the fair market value of the property, but it asserts that the value 

of the property is to be determined as a whole, not by adding together the separate value of 

individual components. We agree.

Where mineral deposits exist in condemned property, the measure 

of compensation is, as in other eminent domain cases, the fair 

market value of the property, and the presence of mineral deposits 

is an element of value to be considered. Henrico County v. 

Wilkerson, 226 Va. 84, 88, 307 S.E.2d 450, 452 (1983). 

Nevertheless, the separate value of the mineral deposits 

themselves, and the future rents and royalties that would be 

received for them when and if they are removed from the land, are 

inadmissible for proving either the value of the property taken or 

damage to the residue. Id. at 89, 307 S.E.2d at 452. The reason 

for that rule is that such evidence invites speculation and 

conjecture, because it relates to “conditions which did not, in fact, 

exist on the condemned land and . . . future circumstances that may 

or may not occur.” Id.

East Tennessee Natural Gas Co. v. Riner, 239 Va. 94, 97-98, 387 S.E.2d 476, 478 (1990). 

 In seeking to rebut our previous holdings on this issue, Hylton argues that modern 

techniques allow for more accurate calculations related to the coal reserves. Even assuming that 

this were true, it does not change the fact such valuations invite speculation and conjecture 

because they are based on “conditions which did not, in fact, exist on the condemned land” at the 

time of the take and “future circumstances that may or may not occur.” Wilkerson, 226 Va. at
14

89, 307 S.E.2d at 452. Notably, there is no evidence indicating when and if the coal will actually 

be mined and, if it is, what the price of coal will be at that time. Accordingly, we find the trial 

court erred in denying Dominion’s motion in limine on this point. 

2. Surface Mine

 Dominion next argues that the trial court erred in denying its motion in limine with 

regard to evidence related to a potential surface mine on the property. Dominion notes that at the 

time of the take, there were no permits allowing surface mining on Hylton’s property, nor were 

any pending. Dominion further points out that the plans related to the surface mine were 

developed as part of the present litigation. Therefore, Dominion asserts that such evidence is 

inadmissible, as it will necessarily lead to improper speculation. We agree. 

In ascertaining damages resulting from a taking, “both present and future circumstances 

which actually affect the value of the property at the time of taking may be considered.” Riner, 

239 Va. at 100, 387 S.E.2d at 479 (emphasis added). Implicit in this statement is the notion that, 

to be considered, the circumstances that currently affect or will affect the property must be 

known at the time of the taking. See City of Virginia Beach v. Oakes, 263 Va. 510, 517, 561 

S.E.2d 726, 729 (2002). At the same time, it is improper to consider circumstances that are 

“based on future expenditures or improvements” to the property, as such circumstances involve 

too much speculation and conjecture. Appalachian Power Co. v. Anderson, 212 Va. 705, 708, 

187 S.E.2d 148, 152 (1972).

In the present case, the record unequivocally demonstrates that, at the time of the take, a 

surface mine did not exist on the property nor had one been contemplated. It was only in the 

course of discovery that the plans for a surface mine were developed. Clearly, any award of 

damages based upon consideration of the value created by a hypothetical surface mine would 
15

necessarily be speculative.

4

 As the surface mine was not contemplated at the time of the taking, 

evidence of value related to such a use is inadmissible. Accordingly, the trial court erred in 

denying Dominion’s motion in limine on this point.

3. Neighboring Tracts

 Dominion further claims that the trial court erred in denying its motion in limine with 

regard to evidence of the devaluation of the neighboring tracts owned by Hylton that were not 

part of the take. Dominion asserts the only basis upon which Hylton could be compensated for 

damages to the neighboring tracts is if the unity of lands doctrine applies. However, according to 

Dominion, because there is no evidence that the neighboring tracts share a unity of use with 

those tracts that were part of the take, the unity of lands doctrine does not apply. We disagree. 

Generally, 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 that tract, but not for damage to separate and 

independent tracts. An exception to the general rule is the socalled unity of lands doctrine. Under this doctrine, an owner may 

be compensated for damage to other tracts of land caused by a 

taking when three factors are present, viz., unity of use, physical 

unity, and unity of ownership. 

Bogese, Inc. v. State Highway & Transp. Comm’r, 250 Va. 226, 228-29, 462 S.E.2d 345, 346-47 

(1995) (citing Virginia Electric & Power Co. v. Webb, 196 Va. 555, 566, 84 S.E.2d 735, 741-42 

(1954)). 

 4

 It is worth noting that allowing such evidence would virtually guarantee that every 

condemnation would be litigated, because landowners would be able to create new “uses” for the 

property that had never been previously contemplated for the sole purpose of increasing the 

value of the property. Clearly, such an approach would undermine the purposes served by Code 

§ 25.1-204 and “the public policy of avoiding the expense and delay of condemnation litigation 

by consensual bargain and sale” that serves as the cornerstone of our condemnation statutes. 

Baylor, 214 Va. at 3, 197 S.E.2d at 337. 
16

“[O]f the three unities, unity of use is the most significant.” Commonwealth Transp. 

Comm’r v. Glass, 270 Va. 138, 148, 613 S.E.2d 411, 417 (2005). Unity of use requires the 

existence of

“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 149, 613 S.E.2d at 417 (quoting 4A Julius L. Sackman, et al., Nichols on Eminent Domain 

§ 14B.04[1], at 14B-14 (rev. 3d ed. 2004)). To demonstrate unity of use, a party must 

demonstrate “an actual, permanent and present joint use of all the parcels as of the date of take” 

and “not a use that might occur at some future date.” Id. at 149-50, 613 S.E.2d at 417-18. 

 We note, however, that “‘it 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.’” Id. at 149, 613 S.E.2d at 417 (quoting 4A Sackman, supra § 

14B.04[1], at 14B-29). In the present case, there is evidence from which a jury could find a 

unity of use, given that, on the date of the take, Hylton was receiving royalties related to an 

existing underground mine on his property which partially extended under the parcel subject to 

the take. Accordingly, the trial court did not err in denying the motion in limine with regard to 

potential evidence that showed devaluation of the neighboring tracts owned by Hylton. 

III. CONCLUSION

 For the foregoing reasons, we reverse the decision of the trial court to grant the motion to 

dismiss. Furthermore, we reverse the trial court’s decision denying Dominion’s motion in limine 

with regard to evidence related to the separate value of the coal and the potential surface mine. 

However, because the issue of whether the unity of lands doctrine applies is a question of fact to 

be decided by the jury, denying the motion in limine on this issue was appropriate. Accordingly, 
17

we affirm the decision of the trial court denying Dominion’s motion in limine with regard to 

evidence related to damage to the neighboring tracts owned by Hylton that were not part of the 

take. 

Affirmed in part, 

 reversed in part, 

 and remanded.