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BROWN, ET AL. v. MOORE, ET AL.


BROWN, ET AL. v. MOORE, ET
AL.


April 17, 1998
Record No. 971587

JAMES A. BROWN, ET AL.

v.

FRENCH H. MOORE, JR., ET AL.

OPINION BY JUSTICE BARBARA MILANO KEENAN
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY

Charles B. Flannagan, II, Judge
PRESENT: All the Justices


In this appeal, we consider whether the trial court erred in
ruling that a certain "strip" of real property was not
a public way but was acquired by an adjoining landowner through
adverse possession.

The disputed property is about 8 feet wide and is located in
the Town of Abingdon.[1] The property lies along the
northern boundary of residential property owned by French H.
Moore, Jr., and Mary Ann Garrett Moore (Moore), and along the
southern boundary of a farm owned by James A. and Bliss M. Brown
(Brown).[2]

The disputed property is located to the east of Henry Street
and to the west of Crestview Drive. Each of these Town streets
leads to the top of a hill and ends in a cul-de-sac. The disputed
property constitutes a portion of the land lying between the two
cul-de-sacs.

In March 1989, Brown filed an amended motion for declaratory
judgment against Moore, seeking a declaration that the disputed
property is a public right of way. In the alternative, Brown
asked that if the court determined the disputed property is not
publicly owned, the court declare that Brown has a private right
of way over the property, and that Moore has failed to establish
adverse possession of the property.

The following evidence was presented in a bench trial. Prior
to 1872, Edward M. Campbell owned certain real property,
including the disputed property. In 1872, Campbell conveyed all
but an approximately 18-foot?wide "strip" of his
property (18-foot strip) to Washington McClanahan. This 18-foot
strip was located along the entire northern border of Campbell’s
property. The disputed property lies within a portion of the
18-foot strip.

Since 1872, deeds conveying property surrounding the disputed
property reference the 18-foot strip, using various terms
including, "lane," "public pass way,"
"right-of-way," and "alley." Also, a Town
zoning map, a street plan, a "corporate boundary" plat,
and a 1948 annexation order refer to Henry Street in the general
area in which the disputed property is located.

In June 1964, French H. Moore, Jr., James H. Bowden, Jr., and
Paul F. Wagner acquired three contiguous tracts of land,
including one tract from James and Dorothy Spencer (Spencer
tract). The deed conveying the Spencer tract to Moore, Bowden,
and Wagner (Spencer deed) provides that the property being
conveyed is bordered on the north by an "alley." The
referenced "alley" is in the same location as the
18-foot strip. The Spencer deed describes the northern boundary
of the Spencer tract as extending 199.5 feet from its southern
line.

Moore, Bowden, and Wagner later decided to divide the land
they had acquired. To provide access to each lot, they sought to
extend Crestview Drive in a westerly direction over a portion of
the 18-foot strip. To accomplish this purpose, Moore, Bowden, and
Wagner submitted a subdivision plat to the Abingdon Town Council
for approval.

Moore requested approval of the subdivision plat at the
January 3, 1966 regular meeting of the Abingdon Town Council. The
minutes of this meeting reflect that the surveyor who drafted the
subdivision plat presented it to the Town Council "with [a] proposal for closing a part of the alley referred to in the
request, and advised [the Council] regarding reference to the
alley as a lane." The minutes further state that
"[s]ince it was not determined if this were an alley and if
the Town had any interest therein, [the council referred this
issue] to the Town Attorney for advice as to what the Town can
do, and for his recommendation on the matter."

Although the request for approval of the subdivision plat was
discussed two weeks later at the January 17, 1966 Council
session, the minutes of the meeting do not refer to any
discussion of the "alley" or "lane." Instead,
the minutes reflect that the Town Council informed Moore that a
50-foot right of way was required before the Council would
approve the extension of Crestview Drive. To comply with this
requirement, Moore agreed to provide the Town with a 17-foot
parcel from the northern border of the Spencer tract. Landowners
on the northern side of Crestview Drive also provided a 17-foot
parcel from the border of their property.

There also was no discussion of the 18-foot strip in February
1966, when the Town Council approved the subdivision plat which
provided for the extension of Crestview Drive ending in a
cul-de-sac at the northeast corner of the Spencer tract. This
cul-de-sac ended just short of the eastern edge of the disputed
property. The subdivision plat was recorded in October 1967, and
Crestview Drive later was extended in accordance with the plat
specifications.

Moore, Bowden, and Wagner then executed a partition deed in
December 1967, which, among other things, conveyed the Spencer
tract to Moore. The partition deed makes no reference to an
"alley." However, the metes and bounds description in
the partition deed depicts the northern boundary line of the
Spencer tract as extending 207.84 feet from the southern border,
a distance of 8.34 feet more than the 199.5 feet set forth in the
Spencer deed. This additional 8.34-foot portion of land comprises
the disputed property.

Shortly after the subdivision plat was approved in 1966, Moore
graded his property in preparation for the construction of a
house. As a result of the grading, the elevation of the disputed
property was lowered 13 feet. Moore also planted trees on the
disputed property.

Brown obtained his property by deed dated September 20, 1975.
The plat attached to the deed shows a right of way which borders
the southern boundary of the property and connects Henry Street
to Crestview Drive. The right of way shown on this plat is in the
same location as the 18-foot strip and includes the disputed
property. In 1986, when Brown attempted to improve the disputed
property to create another access to his property, Moore objected
and Brown filed this action.

At trial, Brown presented testimony from several witnesses,
including Barry L. Proctor, an attorney who concentrated his
practice in real estate title examinations. Proctor testified
that the disputed property was dedicated for public use when the
Campbell conveyance excluded the 18-foot strip and that, in his
opinion, the Town "considered itself to have a public street
in this vicinity." Roy K. Balthis, a certified land
surveyor, identified the above-mentioned discrepancies between
the Spencer deed and the partition deed and noted the references
in various deeds to the 18-foot strip.

Elizabeth S. Jones, an attorney, testified that she found no
documents of record indicating that the Town had accepted an
offer of dedication of the disputed property. Jones stated that,
in her opinion, there is not a public right of way over the
disputed property. Herman McCormick, Jr., superintendent of
public works for the Town from 1963 to 1990, whose
responsibilities included supervision of street maintenance,
garbage collection, snow removal, and traffic signs, testified
that the Town never maintained the portion of land between the
cul-de-sac at the end of Henry Street and the cul-de-sac at the
end of Crestview Drive.

The trial court held that Brown failed to establish that the
disputed property was dedicated as a public right of way. The
court also held that, even if Brown once had a private right of
way over the disputed property, this right was extinguished by
Moore’s adverse possession of the property.

On appeal, Brown first argues that the disputed property was
dedicated to public use by implication. In support of this
argument, Brown relies on Campbell’s 1872 conveyance to
McClanahan of all but 18 feet of Campbell’s property, and on the
references in later deeds to a "lane," a "public
pass way," a "right-of-way," and an
"alley".

Brown also relies on the separate doctrines of implied
acceptance and partial acceptance. Under the doctrine of implied
acceptance, Brown contends that the Town’s actions regarding the
disputed property constituted an implied acceptance of the
purported offer of dedication. Brown asserts that the Town
considered at least a portion of the 18-foot strip to be a public
way, since only 34 additional feet were required from the
adjoining landowners to create the 50-foot right of way for the
extension of Crestview Drive. Brown also argues that, by
referring to the 18-foot strip on a Town map, a "corporate
limit" plat, a street plan, and in the 1948 annexation
order, the Town accepted the purported offer of dedication. Under
the doctrine of partial acceptance, Brown argues that the Town’s
acceptance of a portion of the 18-foot strip for the extension of
Crestview Drive constituted an acceptance of the entire 18-foot
strip, including the disputed property.

Lastly, Brown contends that he obtained a private right of way
over the disputed property because a right of way was shown on
the plat attached to his deed. He argues that the evidence does
not support the trial court’s ruling that Moore acquired the
disputed property through adverse possession.

In response, Moore contends that even if the disputed property
was dedicated for public use, the Town did not accept the offer
of dedication. Moore also argues that any private right Brown may
have had regarding the disputed property has been superceded by
Moore’s adverse possession of that property. We agree with Moore.

We recently stated the following principles relevant to our
disposition of this appeal:

Dedication, at common law, was a grant to the public, by a
landowner, of a limited right of use[] in his land. No writing or
other special form of conveyance was required; unequivocal
evidence of an intention to dedicate was sufficient. Until the
public accepted the dedication, it was a mere offer to dedicate.

McNew v. McCoy, 251 Va. 297, 299, 467 S.E.2d 477, 478
(1996) (citing Brown v. Tazwell County Water & Sewerage
Auth.
, 226 Va. 125, 129-30, 306 S.E.2d 889, 891 (1983)); see
also Bradford v. Nature Conservancy, 224 Va. 181,
198-99, 294 S.E.2d 866, 875 (1982). Because a dedication imposes
the burden of maintenance and potential tort liability on the
public, a dedication is not completed until the public or
competent public authority manifests an intent to accept the
offer. Ocean Island Inn, Inc. v. City of Virginia Beach,
216 Va. 474, 477, 220 S.E.2d 247, 250 (1975).

The acceptance of an offer of dedication by the governing
authority may be "formal and express, as by the enactment of
a resolution by the appropriate governing body, or by implication
arising from an exercise of dominion by the governing authority
or from long continued public use[] of requisite character."
McNew, 251 Va. at 299-300, 467 S.E.2d at 478. The present
record contains no evidence of a formal or express acceptance by
the Town of the disputed property. Therefore, we consider whether
the Town impliedly accepted the property by exercising dominion
over the property or from long continued public use of requisite
character.

In determining whether an offer of dedication has been
impliedly accepted, courts have given consideration to such
governmental actions as the installation of public utility lines
in or across a street, the opening and paving of a street, and
the repair of a street. See Ocean Island Inn, 216
Va. at 477, 220 S.E.2d at 250-51. These actions constitute
affirmative conduct showing an implied acceptance by the
governmental body. The record before us does not contain any such
evidence of affirmative conduct by the Town regarding the
disputed property.

The record also provides no evidence that the Town exercised
dominion over the disputed property by performing any maintenance
on the property. In fact, Herman McCormick’s testimony provided
contrary evidence that the Town did not maintain the land between
the two cul-de-sacs from 1963 through 1990, the period McCormick
served as the Town’s superintendent of public works.

We disagree with Brown’s contention that the Town exercised
dominion over the disputed property by showing a portion of the
18-foot strip, including the disputed property, on various maps
and in the annexation order. These notations reflect only the
physical location of the 18-foot strip and are not evidence of an
assumption by the Town of any duty to maintain the property. The
contrary conclusion urged by Brown is untenable because it would
require the Town to maintain any road or way appearing on any
Town document, without regard to whether the Town had engaged in
affirmative conduct manifesting an implied acceptance of that
particular road or way.

The evidence also was insufficient, as a matter of law, to
establish implied acceptance of the disputed property by public
use of requisite character. This principle of implied acceptance
is applicable when the public has made such long use of property
offered for dedication as to render its reclamation unjust and
improper. See Body v. Skeen, 208 Va. 749, 752, 160
S.E.2d 751, 753-54 (1968); City of Norfolk v. Meredith,
204 Va. 485, 491, 132 S.E.2d 431, 436 (1963); Buntin v.
Danville
, 93 Va. 200, 204-05, 24 S.E. 830, 830-31 (1896).

James Brown testified that when he purchased his farm in 1975,
a "roadbed" was visible on the disputed property but
the property was "grown up in briars and brush." He
also stated that in 1975, the disputed property was passable by
means of a four-wheel-drive vehicle. The evidence also showed
that some people crossed over the disputed property in traveling
between Henry Street and Crestview Drive. However, the evidence
does not show the duration of such usage or its frequency over
any period of time. Thus, while the record indicates that at some
time in the past the disputed property was used as a passageway,
the evidence of this use is insufficient to demonstrate
"long continued public use[] of requisite character."[3] See McNew, 251
Va. at 299-300, 467 S.E.2d at 478; Body, 208 Va. at 752,
160 S.E.2d at 753-54; Meredith, 204 Va. at 491, 132 S.E.2d
at 436; Buntin, 93 Va. at 204-05, 24 S.E. at 830-31.

Under the doctrine of partial acceptance, however, Brown
argues that the Town’s approval of the subdivision plat for the
extension of Crestview Drive manifested its acceptance of at
least a portion of the 18-foot strip. Brown contends that,
without a portion of that strip, the additional 17 feet from the
landowners on the north and south of Crestview Drive would have
been insufficient to create a 50-foot right of way for the
extension of Crestview Drive. Brown concedes that the disputed
property is not located within the particular portion of the
18-foot strip that the Town accepted. However, Brown argues that
in accepting a portion of the 18-foot strip, the Town has
accepted the entire 18-foot strip.

This argument is without merit. We have limited application of
the doctrine of partial acceptance to instances in which "a
governing body has accepted part of the streets appearing on a
recorded plat and no ‘intention to limit the acceptance’ is
shown." Ocean Island Inn, 216 Va. at 479, 220 S.E.2d
at 252; see Hurd v. Watkins, 238 Va. 643, 651-52,
385 S.E.2d 878, 883 (1989). "[S]uch partial acceptance
constitutes acceptance of all of the streets, provided the part
accepted is sufficiently substantial to evince an intent to
accept the comprehensive scheme of public use[] reflected in the
plat." Ocean Island Inn, 216 Va. at 479, 220 S.E.2d
at 252. Since the disputed property does not appear on a recorded
subdivision plat which depicts a group of streets, the doctrine
of partial acceptance is inapplicable.

We disagree with Brown’s contention that a different result is
required based on the minutes of a January 1994 regular meeting
of the Town Council. These minutes contain a statement that the
Council construes its act of approving the subdivision plat in
1966 as an "official ruling" closing Henry Street.
Brown contends that this statement in the minutes demonstrates
that the Town previously accepted the offer of dedication of the
18-foot strip. Such a statement, made 28 years after the
described action, is of no probative value on this issue.[4]

We also conclude that the trial court was not plainly wrong in
ruling that any claim by Brown to a private right of way over the
disputed property has been extinguished by Moore’s adverse
possession of the disputed property. "To establish title to
real property by adverse possession, a claimant must prove
actual, hostile, exclusive, visible, and continuous possession,
under a claim of right, for the statutory period of 15
years." Hollander v. World Mission Church, 255 Va.
440, 442, ___ S.E.2d ___, ___ (1998) (quoting Calhoun v. Woods,
246 Va. 41, 43, 431 S.E.2d 285, 286-87 (1993)). These elements
must be proved by clear and convincing evidence. Calhoun
at 43, 431 S.E.2d at 287.

Brown contends that Moore failed to meet his burden of proving
adverse possession because Moore occupied the disputed property
under the mistaken belief that it belonged to him under the terms
of the partition deed and subdivision plat. This
"mistake," according to Brown, defeats Moore’s claim of
adverse possession.

We agree with the principle that one who possesses another’s
land under a mistake regarding the boundaries of the property and
does not intend to claim land beyond the "true"
property line, cannot adversely hold the land in question. See
Hollander, 255 Va. at 443, ___ S.E.2d at ___; Christian
v. Bulbeck
, 120 Va. 74, 102-03, 90 S.E. 661, 670 (1916).
However,

[w]hether the positive and definite intention to claim as
one’s own the land up to a particular and definite line on the
ground existed is the practical test . . . . The collateral
question whether the possessor would have claimed title, claimed
the land as his own had he believed the land involved did not
belong to him, but to another, that is, had he not been mistaken
as to the true boundary line called for in his chain of title, is
not the proximate but an antecedent question, which is irrelevant
and serves only to confuse ideas.

Hollander, 255 Va. at 443, ___ S.E.2d at ___ (quoting Christian,
120 Va. at 111, 90 S.E. at 672) (emphasis deleted).

In Hollander, a landowner occupied disputed land under
the mistaken belief that it belonged to her under the terms of a
deed. The evidence indicated that the landowner performed
maintenance and upkeep on the disputed land for more than 15
years. We held that the landowner possessed the property with
adverse or hostile intent because her claim was not based solely
on the deed description, but also on her belief that the property
belonged to her. We noted that this belief was evidenced by the
landowner’s maintenance and upkeep performed on the disputed
land. Hollander, 255 Va. at 443, ___ S.E.2d at ___.

Similarly, although the Moores may have believed that the
disputed property belonged to them under the terms of the
partition deed, the testimony of French Moore was clear that he
intended to claim the disputed property "against
anybody." Moreover, this belief was manifested by Moore’s
acts of excavating and planting trees on the disputed property.

The evidence also supports the trial court’s ruling that Moore
met his burden of proving the other elements of adverse
possession by clear and convincing evidence. As stated above,
soon after the subdivision plat was approved in 1966 and before
his home was completed in 1968, Moore excavated his property and
lowered the level of the disputed property by about 13 feet.
Brown acknowledged that he could not drive a vehicle on the
"actual alley, because it had been disturbed by the grading
there and was too steep to drive on." Further, the evidence
is uncontradicted that shortly after the subdivision plat was
approved, Moore planted trees on the disputed property. Thus, the
evidence showed that Moore proved actual, hostile, exclusive,
visible, and continuous possession, under a claim of right, for
at least 15 years. See Hollander, 255 Va. at 442,
___ S.E.2d at ___; Calhoun, 246 Va. at 43, 431 S.E.2d at
286-87.

For these reasons, we will affirm the trial court’s judgment.

Affirmed.

 

 

 

FOOTNOTES:

[1] The exact width of the disputed
property is not clear from the record. At various times it is
described as 7? feet wide, 8.34 feet wide, and 8? feet wide.
The exact measurement is not required for purposes of deciding
this appeal.

[2] Although the property owned by
Moore is located within Town boundaries, only the southern
portion of the Brown farm is located within Town limits.

[3] We also find no merit in
Brown’s contention that, in 1966, Moore "admitted" that
the disputed property was part of a public right of way. A
statement by a landowner cannot create an implied acceptance by a
local governing body, and Brown had the burden of proving such
acceptance irrespective of any statement by Moore.

[4]
We need not address Brown’s argument that the Town did not
properly close the public way, and that the Town’s attempt to
close Henry Street "violates public policy against
sanctioning and perpetuating racially segregated residential
communities." These issues are moot, in light of our ruling
that the Town did not accept the purported offer of dedication.

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