Thompson v. Fugate

Civil Action No. 316-71-R (E.D. Va. July 2, 1971)

Virginia Highway Commissioner enjoined from changing the character or topography of any portion of plaintiff's property known as, "Tuckahoe Plantation," registered as a national historic landmark under 16 U.S.C. § 426(b), over which a portion of Virginia Highway Route No. 288, a joint project of Virginia and the federal government, is scheduled to pass. But Commissioner may take title to the land since that by itself would result in no irreparable injury to plaintiff and defendant has assured the court of its willingness to return the land to plaintiff should it be prevented from constructing the highway along the contemplated route.

Counsel for Plaintiff:
Robert P. Stranahan
Wilmer, Cutler & Pickering
900 17th Street
Washington, D.C. 20006
(202) 296-8800

Hunton, Williams, Powell, Gay & Gibson
700 East Main St.
Richmond, Va. 23212
(703) 643-0141

Counsel for Defendant:
Anthony F. Troy Asst. Attorney General
Supreme Court Bldg.
Richmond, Va.
(703) 770-2071

[1 ELR 20369]

MEMORANDUM

Merhige, D.J.

This matter comes before the Court on plaintiffs' motion for a preliminary injunction.

From the evidence adduced, the Court finds that plaintiffs are owners of property within this judicial district known as "Tuckahoe Plantation," and that said property is of historical value and of historic character and is a registered national historical landmark. See 16 U.S.C. § 426(b).

Defendant Fugate is Commissioner of the Virginia Highway Commission and is in charge of planning, constructing and designing highways, including federal aid highways, within the Commonwealth of Virginia. Defendant Volpe, as Secretary of the Department of Transportation, is charged with the responsibility for the administration of various federal aid highway programs.

Virginia Highway Route No. 288 is a joint project of Virginia and the Department of Transportation and is planned to be a median strip, multi-lane, limited access highway, built to federal interstate highway standards.It is contemplated that a portion of that highway will cross in a north-south direction through the eastern portion of the plaintiffs' property, requiring the taking of a substantial number of acres of same.

The Court finds there to be substantial issues concerning the application of the federal statutes having to do with the Historic Preservation Act of 1969, the Federal Aid Highway Act, and the Department of Transportation Act of 1966.

The Court finds that the plaintiffs would sustain irreparable damage to their property should be highway, as presently contemplated, be constructed through the easternmost portion of "Tuckahoe Plantation."

This Court has jurisdiction over the claim asserted in the complaint and the amended complaint. See 5 U.S.C. § 701-706; 28 U.S.C. 1361, 28 U.S.C. 2201-02.

There are serious questions as to whether there will actually be federal participation which would result in a requirement that the defendant Fugate comply with regulations applicable to federally aided projects.

The Court finds that while irreparable damage would be sustained by the plaintiffs, it would be a breach of the Court's equitable function to preclude the Commonwealth of Virginia, through the defendant Fugate, from exercising the rights accorded the Commonwealth to secure title to property pursuant to Virginia law. The Court finds that no irreparable damage will be sustained by plaintiffs upon the mere taking of title by the Department of Highways of Virginia, since the defendants at the bar of this Court, through counsel, have represented a willingness and intention to reconvey the property, if once obtained, to the plaintiffs should it be determined that for any reason the state be not entitled, or decide not to construct a portion of the highway through plaintiffs' property.

Since the matter is before the Court on a motion for a preliminary injunction, and having concluded that the plaintiffs are entitled to a preliminary injunction, the Court finding that unless an appropriate injunction is issued there is a probable danger that plaintiffs will suffer the loss of a property right, see Sinclair Refining Co. v. Midland Refining Co., 55 F.2d 42, 45 (4th Cir. 1932), equity requires, therefore, that plaintiffs be denied that portion of their prayer for a prelimintary injunction which prays the enjoining of the defendants from taking title to the property, but requires that the defendants be enjoined and restrained from in any manner, should they attain title to a portion of "Tuckahoe," changing the character of said property or the topography thereof.

An order consistent with this memorandum will be this day filed.

ORDER

It appearing to the Court, from the evidence presented and from the factual situation present in the instant case, that the defendants do not contemplate actual construction of the Tuckahoe segment of Route 288 for a period of time in which a decision on the merits of the case may be reached, and that defendant Fugate and the Commonwealth of Virginia may suffer substantial monetary damage from the issuance of a [1 ELR 20370] preliminary injunction against eminent domain proceedings, and that the plaintiffs will not be irreparably harmed by the proposed condemnation of a portion of the Tuckahoe property provided that no actual construction or other physical alteration takes place prior to said decision on the merits, it is hereby ordered that:

1) The motion to enjoin defendant Fugate from filing a Certificate in Lieu of Payment or a Petition for Condemnation, or otherwise commencing any action by power of eminent domain, will be denied.

2) Defendant Fugate, and his agents and employees, will be enjoined, pending decision of this case by this Court, from proceeding with any construction or making any physical alteration of any nature on the property which is the subject of this lawsuit known as "Tuckahoe" without the consent of this Court or the plaintiffs themselves.

3) Defendant Volpe, and his agents and employees, will be enjoined, pending decision of this case by this Court, from expending or authorizing the expenditure of any Federal funds for construction, acquisition, or any other purpose related to the Tuckahoe segment of Route 288.