Virginia Lawyers Weekly VA Lawyers Weekly
Where a county sought to claim by adverse possession a 25-foot circle of land containing a Confederate memorial statue, the trial court correctly denied appellee’s motion to intervene in the county’s adverse possession suit.
Appellee did not assert any right involved in the county’s suit.
Background
“By deed of June 19, 1900, the County’s Board of Supervisors conveyed to the Association of the Survivors of the Clarke Cavalry a 25-foot circle of land in the public square of the Town of Berryville. The following month, the Association erected a Confederate memorial statue on that parcel.
In October 2021, Turner Ashby Camp petitioned the circuit court under Code § 13.1-907,2 asserting that it ‘engaged in activities substantially similar’ to those the Association had conducted, that the Association no longer existed, and asking that its assets be awarded to Turner Ashby Camp.
“In November 2021, the County filed a complaint for adverse possession of the circular parcel and statue, alleging that the County for over 90 years has ‘continuously, exclusively, and openly occupied the circular [p]arcel as a part of the County Property’ and moved to intervene in Turner Ashby Camp’s petition.
“The County named unknown parties as defendants, alleged that the Association ‘ceased to exist by 1930’ without conveying the parcel and statue, and asked the circuit court to appoint a guardian ad litem to represent the unknown parties.
“After the circuit court appointed a guardian ad litem, Turner Ashby Camp moved to intervene in the County’s adverse possession case as a defendant. Turner Ashby Camp asserted that the Association was ‘the owner’ of the circular parcel and statue and the County was ‘proceeding unopposed’ in the adverse possession case.
“Additionally, Turner Ashby Camp stated that in its separate petition action, it ‘seeks to have ownership of the subject real property’ and statue ‘transferred to it.’ Turner Ashby Camp contended that its petition under Code § 13.1-907 and the County’s adverse possession claim sought the same relief and relied upon the same facts, and therefore Turner Ashby Camp’s ‘defenses and claims’ were ‘germane to’ the County’s adverse possession proceeding.
“Turner Ashby Camp argued that the County’s attempt to intervene in its petition justified its intervention in the County’s case. The County and the guardian ad litem opposed intervention.”
The trial court denied Turner Ashby Camp’s motion to intervene. Turner Ashby Camp appealed.
No right asserted
“Turner Ashby Camp argues that because it asserted a ‘claim of ownership’ to the land and statue and ‘defense’ to the County’s claim of adverse possession, its claim and defense were ‘germane to the subject’ of the County’s case and the circuit court therefore erred by denying the motion to intervene.
“Turner Ashby Camp emphasizes that the term ‘germane’ means ‘relevant or pertinent.’ …
“Rule 3:14 provides that ‘[a] new party may by leave of court file a pleading to intervene as a plaintiff or defendant to assert any claim or defense germane to the subject matter of the proceeding. …[F]or a stranger to become a party by intervention, he must “assert some right involved in the suit.”’ …
“Turner Ashby Camp admitted that it was not the true owner of the circular parcel and statue. Indeed, it asserted that the Association owned the property and statue and that through its petition under Code § 13.1-907, Turner Ashby Camp sought to become the owner.
“Turner Ashby Camp’s petition under Code § 13.1-907 was not a claim of right to the circular plot and statue but instead a request that the circuit court, in its discretion, find that Turner Ashby Camp was a suitable entity to receive whatever assets remained of those that had been owned by the Association.
“Turner Ashby Camp’s written statement of facts filed in lieu of a transcript merely recites the procedural history of the cases below.
“It contains no recitation of evidence or any proffer of facts made in support of Turner Ashby Camp’s claimed ownership interest in the circular parcel or statue pursuant to Code § 13.1-907, such as that Turner Ashby Camp is a ‘societ[y] or organization[ ] engaged in activities substantially similar to those of the [Association].’
“The record likewise reflects no facts disputing the County’s ‘actual, hostile, exclusive, visible, and continuous possession’ of the property, as would be necessary to make a ‘germane’ defense to the adverse possession claim.”
Unequal claims
“Turner Ashby Camp argues it should have been permitted to intervene in the County’s suit because they both made equivalent claims from equal footing. However, Turner Ashby Camp misunderstands the legal status of an adverse possessor.
“Satisfaction of the elements of adverse possession, for a period of 15 years ‘operate[s] to extinguish the title of the true owner thereto, and vest[s] a right to the premises absolutely in the occupier.’ …
“Rather than asking the court to grant ownership of the property at issue, the County, in filing its suit, sought the removal of ‘the cloud on [its] title to the Circular Parcel and Statue’ and a finding by the circuit court that ‘any unknown person who may have [had] an ownership interest in the [property] ha[s] lost said interest by adverse possession by the County for the prescribed period and that the title to the [property] is perfected in the County.’
“Because the County simply sought to quiet the title to the property it already possessed, Turner Ashby Camp’s claim to the property is not equal to the County’s; it is inferior. …
“Turner Ashby Camp did not assert a right involved in the County’s case. … Therefore, the circuit court did not abuse its discretion by finding that Turner Ashby Camp’s request for a discretionary award of the Association’s assets was not germane to the County’s adverse possession suit, and accordingly denying the motion to intervene.”
Affirmed.
Turner Ashby Camp No,1567 (Sons of Confederate Veterans) v. County of Clarke, Virginia, Record No. 0683-22-4, May 2, 2023. CAV (unpublished opinion) (Fulton III). From the Circuit Court of Clarke County (Iden). Glen Franklin Koontz for appellant. Robert T. Mitchell, Jr. for appellee. Matthew L. Kreitzer, Guardian ad litem for Parties Unknown. VLW 023-7-158, 8 pp.
