Present:   Carrico, C.J., Compton, Stephenson, 1 Lacy, Hassell,
           Keenan, and Koontz, JJ.

COMMONWEALTH TRANSPORTATION
COMMISSIONER OF VIRGINIA

v.   Record No. 962266     OPINION BY JUSTICE BARBARA MILANO KEENAN
                                       September 12, 1997
A.B. CHADWELL, ET AL.

                 FROM THE CIRCUIT COURT OF LEE COUNTY
                       William C. Fugate, Judge


      In this appeal of a judgment confirming an award in an

eminent domain proceeding, the dispositive issue is whether the

trial court erred in refusing to strike for cause a prospective

commissioner based on his ownership of property directly across

the highway from the condemnees' land.
      In October 1994, the Commonwealth Transportation

Commissioner (the Commonwealth) recorded a certificate condemning

0.036 acre in fee and 0.006 acre owned by A.B. and Yvonne

Chadwell for a permanent utility easement.    The Commonwealth's

certificate included a deposit of $69,125, its estimated value of

the land taken, the easement, and the damage to the residue.

      The condemned property was part of an 0.8 acre parcel owned

by the Chadwells near the intersection of state Routes 58 and 693

in Lee County.    Two commercial structures are located on the

property, a convenience store with a gasoline pump, leased to Lee

Oil Company and subleased to Patty Fee Young, and a building


      1
       Justice Stephenson participated in the hearing and decision

of this case prior to the effective date of his retirement on

July 1, 1997.
leased to the Lee County Office on Youth for use as a "Teen

Center."

     In December 1994, the Commonwealth filed a petition in the

trial court, requesting appointment of a commission to ascertain

the value of the land taken and any damage which may accrue to

the residue as a result of the taking.   Lee Oil and Young

intervened in the action.

     Nine condemnation commissioners were summoned and seated in

accordance with Code § 25-46.20.   After the parties conducted

their voir dire of the prospective commissioners, the

Commonwealth moved to strike James C. Brown for cause on the

ground that he was not impartial and disinterested.   Brown had

stated that he currently owned property directly across Route 58

from the Chadwells' land, and that he had settled his case with

the Commonwealth concerning property taken for the same highway

project.
     The trial court denied the Commonwealth’s motion, stating

that a ruling automatically eliminating anyone who owned land on

Route 58 affected by the project would "seriously reduce the

[number of] people that might be available" to serve as

commissioners.   Brown was removed from the panel by a peremptory

strike.

     After the commissioners were seated, they inspected the

property and heard evidence concerning the value of the land

taken and the damage to the residue caused by the take.   The




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chief issue in dispute was whether the taking, which eliminated

vehicular access to the convenience store from Route 58, deprived

the residue of its commercial value.     After the taking, access to

the convenience store was limited to entry from Route 693.

     The commissioners returned an award of $162,275 for the land

taken and $161,425 for the damage to the residue.    The trial

court overruled the Commonwealth’s exceptions and entered

judgment confirming the award.
     On appeal, the Commonwealth contends that Brown should have

been struck from the panel for cause on the ground that he owned

property directly across Route 58 from the condemned parcel.     The

Commonwealth argues that its right to a panel of five

commissioners, chosen from a group of nine disinterested and

impartial freeholders, was violated because Brown had a personal

and financial interest in the outcome of this case.

     In response, the Chadwells, Lee Oil, and Young

(collectively, the Chadwells) assert that the trial court

properly refused to strike Brown for cause.    They contend that

Brown did not have a personal or financial interest in this

proceeding because he did not own property adjacent to the

condemned property or property that was currently the subject of

a present or anticipated condemnation proceeding.    We disagree

with the Chadwells.

     The issue of just compensation in an eminent domain

proceeding may be determined by a commission, which must be




                                 - 3 -
comprised of disinterested freeholders.    Code § 25-46.20.   When

nine commissioners are summoned, as occurred in this case, the

condemnor and the landowners are each entitled to two peremptory

strikes, after which the remaining five freeholders are appointed

to fix the value of the property to be taken and the damage, if

any, to the residue.    Id.

     The commissioners must be "upright and capable,...without

bias or prejudice."     Chairman of the Highway Comm'n v. Fletcher,

153 Va. 43, 46-47, 149 S.E. 456, 457 (1929).    The commissioners,

like a jury, hear the evidence, evaluate the credibility of

witnesses, and make factual determinations in ascertaining the

proper award due the landowner.     Commonwealth Transp. Comm'r v.

Thompson, 249 Va. 292, 295, 455 S.E.2d 206, 207 (1995).

     To maintain public confidence in the integrity of

condemnation proceedings, the selection of condemnation

commissioners is subject to the same rule applicable to the

selection of jurors, namely, that any person who may be

improperly influenced in the proceedings must be stricken for

cause from the panel.     See May v. Crockett, 202 Va. 438, 440-41,

117 S.E.2d 648, 649-50 (1961).    The trial court is given

discretionary authority to determine whether a prospective

commissioner should be stricken for this reason.     State Highway

and Transp. Comm'r v. Dennison, 231 Va. 239, 243, 343 S.E.2d 324,

327 (1986).   Under its discretionary authority, the trial court

must decide, among other things, whether any members of the



                                 - 4 -
venire have a financial interest so intimately related to the

issue at trial that they cannot sit indifferent in the cause.

Id.

      In May, we held that the trial court should have stricken

for cause a commissioner who owned property adjoining the land to

be condemned and held an equitable interest in other property in

the same project on which condemnation proceedings were pending.

 202 Va. at 441, 117 S.E.2d at 650.    By comparison, in Dennison,

we upheld the trial court's refusal to strike for cause two

prospective commissioners, one who had sold the landowner some

personal insurance policies before the taking, and the other who

had done some construction work for the landowner three years

before the taking.   231 Va. at 243, 343 S.E.2d at 327.   The

standard distinguishing these decisions was whether the panel

member had a present financial interest that may have affected

his ability to be disinterested in the cause.
      Applying this standard to the present case, we conclude that

the trial court abused its discretion in refusing to strike Brown

for cause.   Like the commissioner challenged in May, Brown was
not disinterested in the cause, because he owned property in very

close proximity to the land taken.     His ownership of that

property could have affected his ability to render a

disinterested valuation of the land taken, or a disinterested

determination of the damage to the residue. 2

      2
       Based on our holding, we need not address the remaining



                               - 5 -
     For these reasons, we will reverse the judgment confirming

the award and remand the case for a new trial.

                                           Reversed and remanded.




issues raised by the Commonwealth.



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