EVANS, et al. v.
SMYTH-WYTHE AIRPORT COMMISSION
January 9, 1998
Record No. 970016
EDWARD H. EVANS, ET AL.
SMYTH-WYTHE AIRPORT COMMISSION
OPINION BY JUSTICE LEROY R. HASSELL, SR.
FROM THE CIRCUIT COURT OF SMYTH COUNTY
Charles H. Smith, Jr., Judge
Present: All the Justices
The narrow issue that we decide in this appeal is whether a
judgment, which restricts an airport commission’s power of
eminent domain, is void.
Pursuant to Code ?? 5.1-31,
et seq., the Counties of Smyth and Wythe and the
Towns of Marion, Rural Retreat, and Wytheville created the
Smyth-Wythe Airport Commission, which operates the Mountain
Empire Airport in Smyth County.
In 1981, the Commission initiated condemnation proceedings in
the court below against a parcel of property owned by Edward H.
and Elizabeth B. Evans. The property is located adjacent to the
airport. The Evanses had also filed an action against the Airport
Commission which was consolidated by order with the condemnation
proceeding. The record in this case does not reveal the nature of
the claims that the Evanses asserted in that proceeding.
Subsequently, the Commission and the Evanses reached a
settlement, and the court entered a judgment in 1984, which
stated in part:
"1. The Smythe Wythe [sic] Joint Airport Commission
has agreed, . . . that no clear zone easement will
be required over the property of Edward H. Evans and
Elizabeth B. Evans, so long as it is owned by them
. . . . In this regard the eastern end of said
runway will not be moved or extended in an easterly direction
from its present eastern terminus so long as the Evanses or
their children own the property.
. . .
7. That both parties shall jointly move the Court to
dismiss the pending actions herein, including the action of
Edward H. Evans and Elizabeth B. Evans, his wife, against the
Smyth Wythe Joint Airport Commission and the action of the
Smyth Wythe Joint Airport Commission against Edward H. Evans
and Elizabeth B. Evans, his wife, with prejudice to all
claims and rights that they may have as outlined therein.
8. That the entry of this Order shall be res judicata, as
provided by law, as to any further right of the Smyth Wythe
Joint Airport Commission to condemn any portion of the Edward
H. or Elizabeth B. Evans property located to the east of
State Route 681, and to the south of Interstate Highway 81,
so long as the same is owned by the Evanses or their
In 1996, the Airport Commission instituted this proceeding by
filing a motion for declaratory judgment seeking a declaration
that the 1984 judgment "which purports to limit the
Commission’s future right to initiate condemnation proceedings
against the [Evanses’] Property is null and void ab initio
because the Commission had no authority to voluntarily surrender
or relinquish the power of eminent domain granted to it by the
General Assembly." The Evanses filed a grounds of defense
and a counterclaim.
After consideration of memoranda submitted by counsel, the
1984 judgment, and oral argument, the trial court entered a
declaration that the 1984 judgment "is null and void ab
initio to the extent it purports to limit the [Airport
Commission’s] right to initiate condemnation proceedings or
exercise the power of eminent domain over property owned by the
[Evanses]." The Evanses appeal.
The Evanses contend that the trial court had inherent power to
enter the 1984 judgment which prohibits the Airport Commission
from exercising the power of condemnation with regard to their
property. We disagree.
Code ?? 5.1-35
and -36 authorize cities, counties and towns to create
commissions to operate airports. The General Assembly, in Code ? 5.1-34, has delegated
to a city, town, or county the "full power to exercise the
right of eminent domain in the acquisition of any lands,
easements and privileges which are necessary for airport and
landing field purposes." Code ? 5.1-36 enables a
city, town, or county to enter into an agreement creating an
airport commission which may exercise the power of eminent domain
on behalf of the city, town, or county.
We have consistently held that the "power of eminent
domain is an essential attribute of sovereignty which, in our
system, inheres in the General Assembly." Hamer v. School
Bd. of the City of Chesapeake, 240 Va. 66, 70, 393 S.E.2d
623, 626 (1990); accord Talbot v. Mass. Life
Ins. Co., 177 Va. 443, 448-49, 14 S.E.2d 335, 336 (1941); Commonwealth
v. Newport News, 158 Va. 521, 545-46, 164 S.E. 689, 696
(1932); Wilburn v. Raines, 111 Va. 334, 338, 68
S.E. 993, 995 (1910); Painter v. St. Clair, 98 Va.
85, 87, 34 S.E. 989, 990 (1900). Additionally, in Commonwealth
v. Newport News, we stated the following principle which
is equally pertinent here:
"In so far as the sovereignty and governmental powers
of the State are concerned the object of the ordination of
the Constitution is to provide for the exercise thereof and
not the abdication thereof. It would, therefore, be a
perversion of the Constitution to construe it as authorizing
or permitting the legislature or any other governmental
agency to relinquish, alienate or destroy, or substantially
impair the sovereignty, or the sovereign rights, or
governmental powers of the State. . . . [T]he
power or right of eminent domain [is an attribute] or
inherent and inseparable [incident] of sovereignty and the
power to govern." 158 Va. at 545-46, 164 S.E. at 696.
Applying these principles, we hold that the Airport Commission
could not relinquish its power or right of eminent domain because
such power or right is an inherent and inseparable incident of
the sovereignty of this Commonwealth. And, contrary to the
assertions of the Evanses, Code ? 25-46.34(e), which
authorizes a court to dismiss a condemnation proceeding, does
not, and could not, divest the Airport Commission, acting through
its delegation of power from the General Assembly, of the power
or right of eminent domain.
The Evanses argue that even if the Airport Commission could
not relinquish its power of eminent domain, then the "1984
Order is at most voidable, not void ab initio,
because it was not procured by fraud and the court had
jurisdiction over the subject matter and the parties." We
A judgment is void if it has been procured by extrinsic or
collateral fraud, Rook v. Rook, 233 Va. 92, 95, 353
S.E.2d 756, 758 (1987); Jones v. Willard, 224 Va.
602, 607, 299 S.E.2d 504, 508 (1983), or has been entered by a
court that did not have jurisdiction over the subject matter or
the parties, Va. Dept. Corr. v. Crowley, 227 Va.
254, 260-61, 316 S.E.2d 439, 442-43 (1984); Slaughter v. Commonwealth,
222 Va. 787, 791, 284 S.E.2d 824, 826 (1981). We have held that
"it is essential to the validity of a judgment or decree,
that the court rendering it shall have jurisdiction of both the
subject matter and parties. But this is not all, for both of
these essentials may exist and still the judgment or decree may
be void, because the character of the judgment was not such as
the court had the power to render, or because the mode of
procedure employed by the court was such as it might not lawfully
adopt." Anthony v. Kasey, 83 Va. 338, 340, 5
S.E. 176, 177 (1887).
Watkins v. Watkins, 220 Va. 1051, 1054, 265
S.E.2d 750, 752-53 (1980); Barnes v. American
Fertilizer Co., 144 Va. 692, 706, 130 S.E. 902, 906 (1925).
Applying these principles, we hold that the 1984 judgment was
void ab initio because the circuit court did not
have the power to render a judgment which permitted a
governmental entity to relinquish the power or right of eminent
domain. Because the 1984 judgment is void, it confers no rights
or obligations upon the Airport Commission or the Evanses.
Accordingly, the judgment of the trial court will be affirmed.
 The Evanses subsequently
nonsuited their counterclaim.
 Code ? 25-46.34(e) states:
"Except as otherwise provided in a stipulation of
dismissal or order of the court, any dismissal is without
 We find no merit in the
Evanses’ assertion that our decisions in Parrish v. Jessee,
250 Va. 514, 464 S.E.2d 141 (1995), and Rook v. Rook,
supra, support their contention that the 1984 judgment is
not void. In Parrish and Rook, we did not discuss
whether a court was empowered to enter a judgment which divests
the sovereign of its power of eminent domain.