1972

Stewart v. Fugate

Supreme Court of Virginia

212 Va. 689, 187 S.E.2d 156

Commissioner took lands from Stewarts and their neighbors to construct a limited access highway. Commissioner had to construct service road over Stewarts’ land to neighbors, as project had taken their driveway. Stewarts objected as new service road was for a private use. Trial court dismissed case. Supreme Court affirmed. Whether an individual will receive greater benefit than the public does not determine the question of whether the road is constructed for public use. Rather, public use is determined by how many people had a free and unrestricted right in common to use the road. It was a public road if it was free in common to all citizens. Commissioner was given large discretion in determining the location and necessity of a public road. There was no allegation of arbitrary or capricious use of discretion to construct service road.

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