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PHILLIPS v. FOSTER

211 S.E.2d 93 (1975)

215 Va. 543

Dallas PHILLIPS and Eulalah Phillips v. Wirt H. FOSTER et al.

Supreme Court of Virginia.

January 20, 1975.

Attorney(s) appearing for the Case

Robert Austin Vinyard, Abingdon (S. Strother Smith, III, Smith, Robinson & Vinyard, Abingdon, on brief), for appellants.

James D. Bowie, Bristol (T. L. Hutton, Jr., Warren & Bowie, Bristol, on brief), for appellees.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

The question we decide in this case is whether Code § 21-428 (Repl.Vol.1960) is unconstitutional as applied to the facts of this case, upon the ground that it authorizes the taking of private property for private use. It provides as follows:

"§ 21-428. Right to drain land through lands of others. — Any person desiring to drain his lands through the lands of others may apply to the circuit court of the county or corporation...

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