The times. [volume] (Richmond, Va.) 1890-1903, 1900-02-09
TIE .AlLID|l.i'li.l
ERlIAlIll !. X H S,
CITY Has No Right to Levy Brokers'
SUPREME COURT 0.P In IONS.
Damages Allowed in the appeal Case
ofstle Traction Company Against
Murphy-Judgmcn, Affirmed i'll
the Case OF Jennings.

Constitut:onality of Pulaski county road
law Opinion by Judge James Keith,
president.
In the case OF Painter ct ais. VS.. st.
Clair .et ais, which. was appealed from
the Circuit Court of Pulaski county,
the appellees claiming to exercise au-
thority as road commissioners under a
statute to be found in Acts Of Assembly
1928, p. 81, entered on the lands Of
appellants, located on 4 road, assessed
damages and made their report to the
County Court OF Pulaski, which was
ordered to be recorded, and notice was
directed by said court TO be served by
the Sheriff upon the land owners, which
was done The appellants asked for an
injunction, which was awarded, restrain
ing the read commissioners from any
further action in regard to their prop
erty, but upon final hearing the bill for
Injunction was. dismissed; whereupon ap-4
peal was had to this court.
Appellants insist THAT the special road
law of Pulaski county is unconstitu-
tlonal in at least two particulars: lst.
that it provides for appeal to this court
in condemnation proceeding only on ques-
tions of law, whereas the constitution
clothes this court with appellate jursdic-
'llol upon ali questions concerning, q
| MILL roadway, ferry 'or landing ID.
That it takes the property of the citizen
without due process of law
AS to the first contention the court
held that it was sufficient answer to say
that it cannot arise upon this record
The appellants are not prosecuting, or at
tempting to prosecute, an appeal from
the judgment of the court in the condem-
nation proceedings. and 1t will be time
enough to consider whether the right
to such appeal exists when such
case is properly before the court.
AS to the second point 1t was held that
the only limitation upon the power of
the State in the exercise of the right
Of eminent domain being that just COM
pensation must be made, and as the act
in question does provide an adequate
mode by which compensation to the citi-
zans for the property taken is to be as
oertaned. it is, therefore, not repugnant
to the Institution.
The decree of lower court reversed and
case remanded.
LYNCHBURG DAMAGE. CASE.
Suit tor damages against the city of
Lynchburg. Opinion by Judge John A.
buchanan.
This was action the case in fact.
brought by Duncan against the corpora
ton of -Lynchburg for certain alleged
damages resulting to his property and
health, growing out of a nuisance, which
he claimed was maintained by the agents
of the city while operating a rock quarry
near his home outside the limits of the
city.
The defendant municipality demUrred
| to the declaration on the ground chat the
injury complained of was not done sS:tkin
the scope of the power and authority of
! the city, but was ultra wires, for which
! the city was not liable.
The trial court sustained the demurrer
and gave judgment for the defendant A
writ Of error was awarded tc this court,
| which held that the provisions Of the
charter of the city Of Lynchburg, con-
feTlng special enumerated powers. would
seem to exclude the idea that it was the
intention of the Legislature in granting
| the charter to confer any other extra
territorial powers upon the city, and
| as the nuisance complained of was In
connection with the operation by the city
OF a rock quarry, which was not one Of
| or incident to the enumerated powers con-
| ferred by the charter, the act was ultra
| wires, and the complainant could not re-
I cover damages therefor. AS to the con-
| tentlon Of the plaintiff in error that the
| question Of whether or not the work in
| which the city officials Were engaged when
| the nuisance complained of was created
! was within it's powers, could not be
1 i'A.'Su ny ueHiuiieF, sDuL only ,Dy 4 plea,
| the court held that the courts take iu-
| dicial notice of the charters of munici-
| pal corporations, and if the cause of ac-
| ton stated in the declaration is one for
winch the corporation is not liable, a de-
murrer is the proper and usual way to
| raise the question
/ The judgment of the lower court was
| affirmed
ASSESSMENT OF DAMAGES BY COM.
N1IssIONERs.
| Richmond Traction Company KS. Murnfy
l Opinion by Judge George N. Harrison
] This was a proceeding instituted in the
4 Hastings Court of the city Of Richmond
! 10 ascertain the damages sustained by
the defendant in error, in consequence
OF a change of the location of the tracks
! of the Richmond Fredericksburg and Po-
| tcmac railroad, whereby they were
| brought nearer to his lot situated on
Broad street, in. this city. This change
was made by authority of the City Coun-
! Gil In order that the Richmond Traction
! Company might locate its tracks on
| Broad street.
While putting the tracks Of the Rich
| mond. Fredericksburg and Potomac rail-
road nearer to the lot in question, the
change involved the removal of the
| tracks of the Richmond Railway, end
| Electric Company further from said lot
than they had heretofore been.
The report of the first commission APP
| pointed to assess the damages was ex-
| cepted to by defendant in error for these
reasons: First, that the sum awarded
was inadequate; second, that the res,or:
was based on Incorrect principles. Held
that these. exceptions were we'll taken.
The report of the second commission
was excepted to by the plaintiff in error
for the following reasons: First, because
I TIE appointment of the commissioners
| was Illegal; second, because the com
missioners failed to offset the damage
ascertained. with the benefit resulting
| from removing the street car tracks;
! third because the commissioners includ-
| ed in their estimate $1,000 as damages
| sustained by reason of the chance in
! the location Of the railroad tracks for
two squares east of the lot in question,
| and fourth, that the amount allowed was
in any aspect Of the case excessive. It
| was held that the first exception was
without merit, but sustained the second.
third and. fourth exceptions. and directed
an order to be entered amending the judg-
| n.ent of the Hastings Court 50 as to re-
.ject the allowance of s1,GoO covering the
alleged injury by reason of change OF
two, It'd ant