Virginia & Southwestern Railway Co. v. Nickels

Buchanan, J., delivered the opinion of the court. This is a condemnation proceeding instituted under the provisions of section 1105f of Pollard’s Code. In the answer to the petition filed by the male defendant it is alleged that the railway company had- made no effort to purchase the land sought to be condemned prior to the institution of the proceeding, but had “by force” gone upon the land, and without his consent or approval taken possession of the same, and he claimed compensation for the value of the improvements placed upon the land by the railway company before it took legal steps to acquire it, in addition to compensation for the value of the land so taken and damages to the residue of his property. By the order appointing the commissioners, they were directed, in addition to ascertaining a just compensation for the land taken and damages to the residue, “to find and report the value and cost of the improvements, if any, placed upon the land sought to be taken herein, and when and by whom such improvements were placed upon said lands before this petition was filed.” The commissioners, pursuant to the direction given them, after ascertaining the value of the land taken and the damages to the residue of the tract, reported that— “Said railway company has converted the said trestle into a fill by throwing dirt and rock under the track way and the fifty foot right of way was not sufficient to [794] hold all of the dirt, the footing of the fill on the northwest side of the said track has run out and beyond the old right of way about 35 feet, and on the southeast side the footing of said fill at its deepest place has run out and beyond the right of way about 15 feet. We find that this dirt and rock was put upon the fill by the Virginia and Southwestern Railway Company through its construction department; that said work began about the first day of December, 1912, and cost about $249.40 made up as follows, iron piping $104.40; cement wall $5.00, cost of making dirt fill $140.00.” Upon the hearing of the cause the court held that the land owners were entitled to compensation for the value of the said improvements as well as the value of the land taken without the improvements and the damages to the residue, confirmed the report of the commissioners, ordered the aggregate amount found by it to be paid into court, and appointed a commissioner to ascertain the liens and what persons were entitled to the said money and in what proportions. The order states that the ease was heard upon exceptions as to the amount allowed by the commissioners as compensation for the land taken and for damages to the residue, and to the right of the land owners to compensation for the value of the improvements placed upon the land. No bill of exceptions was taken to the action of the court during the progress of the cause, and so far as the record shows prior to the entry of the order or judgment complained of, which is final as to the railway company, no exception was noted or objection made to any ruling of the court. Within thirty days after that order was entered a vacation order was entered upon the application of the railway company under the provisions of section 3456 of Pollard’s Code, suspending the execution of the order for ninety days for the purpose of enabling the railway company to apply [795] for a writ of error. In the suspending order it is stated that the railway company feels itself aggrieved by the order suspended in so far as it allows compensation for the said improvements. It is insisted by the defendants that in the absence of any bill of exceptions or of anything in the record to show that the railway company excepted to the action of the trial court in allowing compensation for the said improvements, the correctness of that action cannot be reviewed by this court. The general rule is that objections not shown to have been made in the trial court cannot be considered by this court upon a writ of error. Burks’ PL & Pr. 770, and cases cited. This rule does not seem to be controverted by the railway company, but its contention is, as we understand its petition, that the record shows that it did except to the court’s action in so far as it allowed compensation for the said improvements. In the petition for a writ of error it is said exceptions to each of the findings of the commissioners as to what the defendants were entitled to were made, “.and by an order entered September 11, 1913, each was overruled and judgment rendered against the railway company in accordance with said report.” “The $50.00 and $100.00 allowed-were later paid into court and exceptions taken only as to the ruling of the trial court in allowing a recovery for the $249.40 for improvements made as aforesaid, as shown by a suspending order entered in vacation.” The only effect of the suspending order, whatever its recitals, was to stay the execution of the final judgment. When final judgment was entered and the court adjourned for the term, it was too late for the railway company to except or object to any ruling of the court prior to that judgment. The record was then closed and noth [796] ing could be added to it except by express statutory provision. Va. Dev. Co. v. Rich Patch Co. 98 Va. 700; 37 S. E. 280; Burks’ Pl. & Pr. sec. 290. But even if it could be held in any view of tbe case tbat tbe record shows tbat tbe railway company bad excepted to tbe ruling of tbe court as to such compensation, as it is clear we think it does not, tbe evidence upon which tbe court based or may have based its judgment is not in tbe record. Clearly tbe depositions copied with tbe record are not a part of it. It does appear tbat tbe railway company took possession of tbe land before it instituted tbis proceeding. Whether it entered “by force” or as a mere trespasser with or without an intention to condemn, or entered with tbe consent of tbe defendants, does not' appear. Tbe general rule is tbat where one invades another’s land without legal right and places structures thereon, tbe structures belong to tbe land owner. If a railway company claims tbat its entry was made under circumstances which exempt it from tbe operation of tbis rule, it would seem clear tbat tbe burden would be upon it to show it. Prima facie, a trespassing railroad company occupies no higher position than any other class of trespassers. Tbe court being of opinion tbat as tbe record does not show tbat any exception was taken to any of tbe rulings of tbe trial court, its judgment cannot be reviewed by tbis court, tbe writ of error must be dismissed as improvidently awarded. Writ dismissed.