§ 38-b. Authority of city to exercise right of eminent domain.

(1)

In order to carry out more effectually the powers conferred by this charter, the City of Lynchburg is hereby expressly authorized to acquire by condemnation proceedings instituted in the corporation court of the City of Lynchburg, or in the circuit court of the City of Lynchburg, if the subject lies or is situated within the city, and if not within the city, in the circuit court of the county in which subject lies, land or any interest therein, any right, easement, or estate of any person or corporation therein, whenever in the opinion of its council a public necessity exists therefor, which shall be expressed in the ordinance or resolution directing such acquisition, whenever the City of Lynchburg cannot agree on terms of purchase or settlement with those entitled to such subject because of the incapacity of such owner, or some one of the owners, or because of the inability to agree upon the compensation to be paid, or other terms of settlement or purchase, or because the owner, or some one of the owners, of the subject proposed to be acquired is a non-resident of this State, or cannot with reasonable diligence be found in this State, or is unknown. If the subject is situated partly within the city and partly within the county, the circuit court of such county shall have concurrent jurisdiction in such condemnation proceedings with the courts of the city hereinbefore enumerated. The judge or the court exercising such concurrent jurisdiction shall appoint five disinterested freeholders, any or all of whom may reside either in such county or in the city, any three of whom may act, as provided by law.

(2)

In addition to the procedure prescribed by general law for the exercise of the power of eminent domain, the council of the city may, by such ordinance or resolution, direct the acquisition of such property and provide therein in a lump sum the total estimated necessary funds to compensate the owners thereof for the property or properties to be acquired or damaged. Upon the adoption of such ordinance or resolution the city may file a petition in the clerk's office of any of the courts hereinbefore enumerated, which shall be signed by the mayor, vice-mayor or city manager and shall set forth the interest or estate to be taken in the property and the uses and purposes for which the property or the interest or estate therein is wanted, or when no property is to be taken but is likely to be damaged, the necessity for the work of improvement which will cause or is likely to cause damage to the property or estate of any person. There shall also be filed with the petition a plat of a survey of the property with a profile showing cuts and fills, trestles and bridges, if any, and a description of the property which, or an interest or estate in which, is sought to be taken or likely to be damaged and a memorandum showing the names and residences of the owners of the property, if known, and showing also the quantity of property which, or an interest or estate in which, is sought to be taken or will be or is likely to be damaged. There shall be filed also with said petition a notice directed to the owners of the property, if known, copies of which shall be served on such owners or on tenants of the freehold of such property, if known. If such owner or tenant of the freehold be unknown or a nonresident of the state and cannot with reasonable diligence be found in this state, or if the residence of such owner or tenant be unknown, he may be proceeded against by order of publication, which order, however, need not be published more than once a week for two successive weeks and shall be posted at a main entrance to the courthouse. The publication shall in all other aspects conform to section 8-71, 8-72 and 8-76 and 25-46.10 of the Code of Virginia. Upon the filing of said petition and the deposit of the funds provided by the council for the purpose, in a bank to the credit of the court in such proceedings and the filing of a certificate of deposit therefor, the interest or estate of the owner of such property shall terminate and the title to such property or interest or estate of the owner shall be absolutely vested in the city in fee simple and such owner shall have such interest or estate in the funds so deposited as he had in the property taken or damaged and all liens by deed of trust, judgment or otherwise upon said property or estate shall be transferred to such funds and the city shall have the right to enter upon and take possession of such property for its uses and purposes and to construct its works of improvement. The clerk of the court in which such proceeding is instituted, unless such court shall also be the court in which deeds are admitted to record, shall make and certify a copy of the petition, and any exhibits filed therewith, notice and orders and deliver or transmit the same to the clerk of the court in which deeds are admitted to record. The clerk of the court in which deeds are admitted to record shall record the same in his deed book and index them in the name of the person or persons who had the property before and in the name of the city, for which he shall receive the same fees prescribed for recording a deed, which shall be paid by the city. If the city and the owner of property so taken or damaged agree upon compensation therefor upon filing such agreement in writing in the clerk's office of such court, the court or judge thereof in vacation shall make such distribution of such funds as it may seem right, having due regard to the interest of all persons therein, whether such interest be vested, contingent or otherwise, and to enable the court or judge to make a proper distribution of such money it may in its discretion direct inquiries to be taken by a special commissioner in order to ascertain what persons are entitled to such funds and in what proportions and may direct what notice shall be given of the making of such inquiries by such special commissioner. If the city and the owner cannot agree upon the compensation for the property taken or damaged, if any, upon the filing of a memorandum in the clerk's office of said court to that effect, signed by either the city or the owner, the court shall appoint commissioners provided for in section 25-46.20 of the Code of Virginia, or as provided for in this section, and shall in this order appointing such commissioners designate the day and hour for them to meet, and all proceedings thereafter shall be had as provided for in Sections 25-46.20 through 25-46.34 of the Code of Virginia, or as provided in Section 15-1..236 thereof, insofar as they are then applicable and are not inconsistent with the provisions of this Act, and the court shall order the deposit in bank to the credit of the court such additional funds as appear to be necessary to cover the award of the commissioners or shall order the return to the city of such funds deposited that are not necessary to compensate such owners for property taken or damaged. The commissioners so appointed shall not consider improvements placed upon the property by the city subsequent to its taking nor the value thereof nor the enhancement of the value of said property by the erection of said improvements in making their award.

(3)

In all cases under the provisions of this Act, the enhancement, if any, in value of the remaining property of the owner by reason of the construction or improvement contemplated or made by the city, shall be offset against the damage, if any, resulting to such remaining property of such owner by reason of such construction or improvement, provided such enhancement in value shall not be offset against the value of the property taken; and provided further, that if such enhancement in value shall exceed the damage, there shall be no recovery over against the owner for such excess.

(4)

Whenever any money shall have heretofore remained or shall hereafter remain for five years in the custody or under the control of any of the courts hereinbefore enumerated in any condemnation proceedings instituted therein by the city under this section or the general law, without any claim having been asserted thereto, such court shall, where the amount is one hundred dollars or more, cause a publication to be made once a week for two successive weeks in a newspaper of general circulation in the city, setting forth the amount of such money, the source from which it was derived and the proceedings in which it is held, and requiring all persons having any claim to said money to appear before said court within such time after the completion of the publication as the court may prescribe and establish their claim. If the sum be less than one hundred dollars, the court shall direct the same to be paid into the treasury of the city, and a proper voucher for the payment taken and filed among the records of the proceeding. If no person shall appear and show title in himself, the court shall order the money, after deducting therefrom the costs of such publication if such publication is made, and any other proper charges, to be paid into the treasury of the city and a proper voucher for the payment to be taken and filed among the records of the proceeding. The city comptroller shall, in a book provided for the purpose, keep an account of all money thus paid into the city treasury, showing the amount thereof, when, by whom, and under what order it was paid, and the name of the court, and, as far as practicable, a description of the suit or proceeding in which the order was made, and as far as known, the names of the parties entitled to said funds. Money thus paid into the treasury of the city shall be paid thereout to any person titled thereto, who has not asserted a claim therefor in the proceeding in which it was held, on the order of the court having jurisdiction of such proceeding, upon satisfactory proof that he is entitled to such money. If such claim be established, the net amount thereof, after deducting costs and other proper charges, shall be paid to the claimant out of the treasury of the city on the warrant of the city comptroller. No claim to such money shall be asserted after ten years from the time when such court obtained control thereof; provided, however, if the person having such claim was an infant, insane, or imprisoned at the time the claim might have been presented or asserted, claim to such money may be asserted within five years after the removal of such disability.

(Acts 1947, Ex. Sess., ch. 5, p. 15; Acts 1968, ch. 22, p. 49)

(Acts 1947, Ex. Sess., ch. 5, p. 15; Acts 1968, ch. 22, p. 49)