1975

Phillips v. Foster

Supreme Court of Virginia

215 Va. 543, 211 S.E.2d 93

Foster sought to condemn Phillips’ land for a drainage easement 200 feet long and 12 feet wide pursuant to Va. Code § 21-428. The easement would facilitate the approval of a subdivision plan by providing surface water drainage. Trial court appointed commissioners and approved their report. Phillips asserted that statute had been applied in an unconstitutional manner. Supreme Court agreed. The effect of the trial court decree was to take private property for private use. The salient consideration is whether a public use is predominant. The purpose of the taking in this case was the improvement of one person’s land at another’s expense. This was an unconstitutional application (Va. Const. Art. 1, § 11) of the statute in this case. Reversed and final judgment.

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