Consolidated Turnpike Company v. Norfolk & Ocean View Railway Company/Opinion of the Court
Messrs. Henry W. Anderson and E. Randolph Williams for defendant in error.

The case comes here under § 709, Revised Statutes (U.S.C.omp. Stat. 1901, p. 575), now § 237 of the new Judicial Code [36 Stat. at L. 1156, chap. 231, U.S.C.omp. Stat. Supp. 1911, p. 227]. It must therefore appear that some right, privilege, or immunity was claimed under the Constitution, or some statute of the United States, and that the decision was against the right, privilege, or immunity so claimed and specially set up by the plaintiff in error.

The error assigned here is that, in permitting the condemnation of the interest of the mortgagees in the strip of land condemned without including the value of the permanent improvements placed thereon by the predecessor in title of the defendant in error, the Virginia court has authorized the taking of the property of the mortgagee plaintiff in error 'without due process of law, in violation of the Constitution of the United States.'

Just compensation for private property taken for public use is an essential element of due process of law as guaranteed under the 14th Amendment. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581. The argument is that, if, therefore, just compensation required that the compensation awarded for the interest condemned should include the value of the land with improvements, and the value of such improvements be not so included, due process is lacking; that it would not in such case be a mere claim of inadequate compensation, but a denial of all compensation for an element of value actually existing as a part of the property taken. Chicago, B. & Q. R. Co. v. Chicago, supra; Appleby v. Buffalo, 221 U.S. 524, 55 L. ed. 838, 31 Sup. Ct. Rep. 699.

Before considering whether this is a case for the application of the principle invoked, however, the preliminary question is whether any such claim or right, under the 14th Amendment was 'specially set up' in the state court, and whether the record shows that the right so specially set up was denied.

It is contended that the right to just compensation was the whole substance of the litigation in the state court, and that this right arose under the Constitution of the United States. This latter assertion does not necessarily follow, since, under the law and Constitution of the state, the plaintiffs in error were equally entitled to due process of law, including just compensation for property taken for public purposes, and the case might well have been litigated wholly upon local law. Just such a contention was held ineffectual in Osborne v. Clark, 204 U.S. 565, 569, 51 L. ed. 619, 626, 27 Sup. Ct. Rep. 319, when it was said:

'If a case is carried through the state courts upon arguments drawn from the state Constitution alone, the defeated party cannot try his chances here merely by suggesting for the first time when he takes his writ of error that the decision is wrong under the Constitution of the United States. Crowell v. Randell, 10 Pet. 368, 398, 9 L. ed. 458, 470; Simmerman v. Nebraska, 116 U.S. 54, 29 L. ed. 535, 6 Sup. Ct. Rep. 333; Hagar v. California, 154 U.S. 639, and 24 L. ed. 1044, 14 Sup. Ct. Rep. 1186; Erie R. Co. v. Purdy, 185 U.S. 148, 153, 46 L. ed. 847, 850, 22 Sup. Ct. Rep. 605.'

The ground upon which the claim was asserted to compensation for the improvements placed upon the land by the Bay Shore Company was the common-law principle that permanent structures placed upon the realty of another by a trespasser become the property of the owner and pass under any encumbrance created by the owner. Therefore, it was contended, if the Bay Shore Company saw fit to construct upon land subject to the deeds of trust represented by the plaintiffs in error, with no other authority than that of a deed from the mortgagor in possession, the structures placed thereon passed under the mortgage, and any decree condemning the land which denied compensation for the value of the land thus enhanced operates to deprive the mortgagees of a part of their security without due process of law.

This view of the law of the state was the view which the trial court accepted, upon the authority of the case of Newport News & O. P. R. & Electric Co. v. Lake, 101 Va. 334, 43 S. E. 566. The supreme court of the state upon appeal reversed this conclusion and held that, 'where a corporation clothed with the power of eminent domain lawfully enters into the possession of land for its purposes, and places improvements thereon, and afterwards institutes condemnation proceedings to cure a defective title, or to extinguish the lien of a deed of trust, it is not proper, in ascertaining 'just compensation' for such land, to take into consideration the value of such improvements.

'The commissioners in their report ascertained the value of the land, as of the date of their report, without considering the improvements, at $6,200. This sum, we think, should have been fixed as the just compensation for the land taken, and the trial court erred in not so holding.' [111 Va. 142, 143, 68 S. E. 346, Ann. Cas. 1912A, 239.]

The case of Newport News & O. P. R. & Electric Co. v. Lake, supra, relied upon by the trial court, was distinguished, the supreme court saying that in that case, 'the premises had been sold under the deed of trust, and the purchaser, who was the defendant in the condemnation proceedings, had recovered the premises in an action of ejectment after the improvements had been placed upon the premises by the railway company under the authority of the grantors in the deed of trust,' and was therefore not limited to the value of the land as it was before the improvements.

Up to the filing of this opinion by the supreme court of the state, no right or claim to due process of law under the 14th Amendment was anywhere specially set up upon the record. Nor is there any mention of the Constitution of the United States aside from that found in the 15th exception to the report of the commissioners to assess compensation. The exception referred to was in these words:

'15. Said report is also excepted to by said Arthur W. Depue on the ground that if it is held that the proper interpretation of the present statute of eminent domain is that this property can be taken, and that in the measure of damages the value of the land alone is to be considered, without improvements, then that such interpretation impairs the obligation of a contract within the Constitution of the United States, because it is a different interpretation from what the court of appeals of Virginia, prior to this new statute, has placed upon the statute law relative to such improvements.'

At most that is a vague claim that if the Virginia eminent domain statute shall be construed as excluding damage for improvements, there would result a change of decision which would impair the obligation of a contract.

No question of the impairment of the obligation of a contract was decided in the trial court nor in the supreme court; nor is any such question assigned as error here, nor presented in argument. Upon a petition for a rehearing filed in ths supreme court, one of several grounds stated was, that a decree taking the land in question without compensation for the improvements thereon would be 'a taking without due process of law, in violation not only of the Constitution of Virginia, but of the 14th Amendment to the Constitution of the United States.' This application was refused, without opinion, the judgment entry being in these words:

'The court having maturely considered the petition aforesaid, the same is denied.'

The words 'maturely considered' do not import any decision of the question made. Just such an entry has been held to be no more than a refusal to rehear the case. Forbes v. State Council, 216 U.S. 396, 54 L. ed. 534, 30 Sup. Ct. Rep. 295.

Nothing is better settled than that it is too late to raise a Federal question for the first time in a petition for a rehearing, after the final judgment of the state court of last resort. If, however, the state court actually entertains the petition and decides the Federal question, and this appears by the record, the requirement of § 709, that the right shall be specially set up and denied, is complied with. McCorquodale v. Texas, 211 U.S. 432, 53 L. ed. 269, 29 Sup. Ct. Rep. 146; Mallett v. North Carolina, 181 U.S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730, 15 Am. Crim. Rep. 241; McMillen v. Ferrum Min. Co. 197 U.S. 343, 347, 49 L. ed. 784, 787, 25 Sup. Ct. Rep. 533.

Having neglected to raise any Federal question before the final judgment in the state supreme court, and having failed to obtain a rehearing that the question might thereby be raised and a decision obtained upon it, the plaintiffs in error have endeavored to show that in fact the supreme court of Virginia did rehear the case upon their petition, and did decide the Federal question, therein for the first time raised, adversely, by obtaining the certificate of the chief justice of the court, months after the court had handed down its final opinion, that the court 'refused the said petition for a rehearing on the ground, inter alia, that he decree or decision of this court . . . did not constitute a taking of the property of the defendants in error without due process of law, in violation of the 14th Amendment to the Constitution of the United States, and that the defendants in error were not thereby deprived of any rights under said Amendment.' This certificate was never made the order of the court and a part of the record, as in Marvin v. Trout, 199 U.S. 212, 50 L. ed. 157, 26 Sup. Ct. Rep. 31, where it was held 'perhaps sufficient' to show what Federal question was decided in a case where no opinion was filed. But that such a certificate can do no more than make more definite and certain that which otherwise may be insufficiently shown by the record proper is the settled rule of this court. That in itself it cannot confer jurisdiction is too plain for controversy. Seaboard Air Line R. Co. v. Duvall, 225 U.S. 477, 56 L. ed. 1171, 32 Sup. Ct. Rep. 790; Home for Incurables v. New. York, 187 U.S. 155, 47 L. ed. 117, 63 L.R.A. 329, 23 Sup. Ct. Rep. 84. At the utmost it may aid to the understanding of the record. Gulf & S. I. R. Co. v. Hewes, 183 U.S. 66, 46 L. ed. 86, 22 Sup. Ct. Rep. 26.

For the reasons stated, the writ of error must be dismissed. 

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