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Much-condemned landowner may continue lawsuit, judge says

The Roanoke Times
April 16, 2010
By Laurence Hammack

Over the years, Edd Jennings has seen the family farm divided for various projects.

WYTHEVILLE -- Farmer Edd Jennings, who has seen his land carved up repeatedly for highways and utility lines, cleared a legal hurdle Thursday in his effort to make Virginia pay him for the latest public project.

Circuit Court Judge Joey Showalter denied a motion to dismiss Jennings' inverse condemnation claim against the Virginia Department of Transportation.

Jennings is claiming that an expansion of the Interstate 77 bridge that spans the New River -- and cuts his 300-acre farm in half -- amounts to a taking by the state.

"It was there and then it was gone," Jennings testified Wednesday, explaining how he lost access to his land because of a huge earthen mound left under the bridge.

VDOT argued that Jennings hasn't proved he had a right of access to the narrow strip of land it obtained through eminent domain laws in the 1970s, when the bridge was first built. An attorney for the transportation department also said there's no proof the project damaged a waterline or caused flooding, as Jennings alleges.

Testimony in the two-day trial in Wythe County Circuit Court concluded Thursday. Showalter will consider written arguments from attorneys on both sides before a final decision.

That could take several months. If Showalter agrees that Jennings' land was taken, a jury will be seated to determine how much the farmer should be paid.

It's not unusual for private land to be taken by eminent domain for roads or other public projects. What sets this case apart is that Jennings' land has been taken at least 10 times during the years it was farmed by three generations of his family.

The condemnations include land for U.S. 52, the interstate and a bridge that barely missed Jennings' picturesque brick farmhouse, a power line built by Appalachian Power Co. and a gas line built by a subsidiary of Duke Energy Corp.

The projects crisscross Jennings' land in such a way that he says there is hardly a spot on the cattle and hay farm that remains untouched.

Joe Waldo, a Norfolk lawyer who specializes in eminent domain cases and represents Jennings, said he is unaware of another case in which a single property owner has faced so many condemnations.

A petition filed by Jennings and his brother, Gordon, who co-owns the land, listed a number of problems, including dust from the bridge construction that showered the house and noise and vibrations that made living there almost unbearable.

Those claims were dropped this week, leaving Showalter to decide whether the Jenningses were deprived of access under the bridge and whether the construction damaged a waterline and caused flooding.

Jennings testified that he can no longer drive farm equipment under the bridge, which splits his farm in two, because the grade left by construction workers is too steep.

"It's completely changed our farming practices," he said.

VDOT attorney Cameron Bell questioned whether a condemnation order in 1966 gave the family a right-of-way to the land under the bridge, which is now state property.

Bell also said the inverse condemnation lawsuit presents a mishmash of claims that fail to detail the exact takings.

"When? Where? How long?" Bell asked. "Those types of things are going to have to factor in."