PRESENT: All the Justices
H. CURTISS MARTIN, ET AL.
OPINION BY
v. Record No. 121540 JUSTICE ELIZABETH A. McCLANAHAN
JUNE 6, 2013
JAMES GARNER, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
J. Howe Brown, Judge
In this declaratory judgment action for determination of
title to a private alley running between property owned by H.
Curtiss Martin and Virginia Drewry (Martin) and property owned
by James and Christine Garner (the Garners), Martin appeals from
the circuit court's judgment that the Garners hold fee simple
title up to the centerline of that portion of the alley abutting
their property. Martin also appeals the circuit court's
judgment dismissing his claim against other abutting property
owners seeking a determination as to ownership of the remaining
length of the alley. Finding no error, we will affirm the
circuit court's judgment.
I. BACKGROUND
The Garners, who own property located at 122 Prince Street
in Alexandria, filed an amended complaint seeking a declaration
that the eastern boundary line of their property is the
centerline of an abutting eight-foot wide private alley
extending approximately 90 feet due south from Prince Street.
Approximately 44 feet of the alley runs between the Garners'
property and the property owned by Martin, which is located at
118 Prince Street. In their amended complaint, the Garners also
named as defendants the following owners of properties lying
adjacent to the alley: David and Helen Kenney; Richard and
Harriet Melmer, Trustees; Robert Bisson and Sabine Sisk; and
Charles W. Greenleaf (Abutting Owners). Additionally, the
Garners named the City of Alexandria, alleging the City was
requiring them to obtain a judicial determination of their title
to the portion of the alley abutting their property for the
purpose of calculating a side yard setback required under the
City's zoning ordinance. 1
Martin filed an answer disputing the Garners' claim of
ownership to the centerline of the alley. He also filed a
counterclaim against the Garners and a cross-claim against the
Abutting Owners seeking a declaration that the fee underlying
1
In connection with their desire to construct a home on
their property, the Garners sought to include the portion of the
alley in which they claim ownership to satisfy their side yard
requirement under the City's zoning ordinance. The Board of
Zoning Appeals determined that the alley could not be so used.
The Garners appealed that decision to the circuit court and
those proceedings have been stayed pursuant to an agreement
between the Garners and the City. The Garners also sought
variances from the side and rear yard requirements which were
granted by the Board of Zoning Appeals and upheld by the circuit
court. Martin has appealed the circuit court's judgment to this
Court. The determination of Garners' ownership in the alley has
no bearing on issues raised in the pending zoning appeal. See
Martin v. City of Alexandria, ___ Va. ___, ___ S.E.2d ___ (2013)
(this day decided).
2
the entire 90-foot length of the alley is owned by Martin.
Robert Bisson and Sabine Sisk did not respond to the amended
complaint. Richard and Harriet Melmer filed an answer to the
original complaint but did not respond to the amended complaint
or otherwise participate in the circuit court proceedings.
David and Helen Kenney, Charles W. Greenleaf, and the City of
Alexandria filed answers to the amended complaint and consented
to be bound by the findings of the circuit court, waiving their
rights to participate in the proceedings. 2
At the trial in this matter, Ronald J. Keller, a licensed
surveyor, testified as to his examination of the chains of title
to the property located at 122 Prince Street, owned by the
Garners, and the property located at 118 Prince Street, owned by
Martin. Based on his examination, the parcels now comprising
122 and 118 Prince Street were both owned by George Markell, Jr.
In 1891, Markell conveyed a parcel comprising the western
portion of 122 Prince Street to Robert Miller. In January 1894,
Markell conveyed a parcel comprising the eastern portion of 122
Prince Street to Robert Miller (the Miller deed). The Miller
deed described the property as running "east on Prince Street
2
Although Martin only named the Garners in his appeal to
this Court, the remaining parties named in the amended complaint
were added as appellees pursuant to Orders entered by this Court
on March 20 and April 2, 2013.
3
sixteen feet more or less to an alley . . . with the right of
way over said alley in common with others entitled thereto." 3 In
May 1894, Markell conveyed the parcel comprising 118 Prince
Street to William W. Browne and Richard F. Robinson, Trustees
(the Browne/Robinson deed). The Browne/Robinson deed described
the property as running "west on Prince Street . . . to an alley
eight (8) feet wide . . . with right of way over the said alley,
in common with others entitled [t]hereto."
The circuit court ruled that the Garners own in fee simple
up to the centerline of the 44 feet 4 inches of the alley
abutting their property at 122 Prince Street. The circuit court
further ruled that Martin owns in fee simple up to the
centerline of the same 44 feet 4 inches portion of the alley
abutting their property at 118 Prince Street. In addition, the
circuit court dismissed Martin's claim seeking a determination
as to ownership of the remaining length of the alley, ruling
there was no justiciable controversy as to the Abutting Owners.
II. ANALYSIS
A. Ownership of Portion of Alley Abutting
Garners' Property
3
In 1905, Miller conveyed the parcels comprising 122 Prince
Street to Charles Kircherer. The description of the property
placed the eastern boundary line at the centerline of the alley.
This description has been used in the subsequent deeds contained
in the chain of title to 122 Prince Street.
4
Martin argues the circuit erred in ruling that the Miller
deed, under which the Garners claim their title, conveyed title
to the centerline of the alley.
It is an established rule in Virginia that a conveyance of
land bounded by or along a way carries title to the center of
the way, unless a contrary intent is shown. Cogito v. Dart, 183
Va. 882, 889, 33 S.E.2d 759, 762 (1945) ("the boundary on a way,
public or private, includes the soil to the center of the way if
owned by the grantor and there are no words or specific
descriptions to show a contrary intention"); see also Williams
v. Miller, 184 Va. 274, 278-79, 35 S.E.2d 127, 129 (1945);
Richmond v. Thompson, 116 Va. 178, 184-85, 81 S.E. 105, 107
(1914). This established rule of construction is not limited to
public rights-of-way but applies equally to conveyances of
property bounded "on a private way." Cogito, 183 Va. at 889, 33
S.E.2d at 763.
In Williams, we applied the general rule to hold that a
grant of land bounded by an abandoned road carried title to the
center of the road. 184 Va. at 275-76, 35 S.E.2d at 127-28. In
reaching our conclusion, we noted that in describing the
property as bounded "[o]n the west by the old public road now
closed," the deed "speaks for itself" and "contains no
limitation." Id. at 278-79, 35 S.E.2d at 128-29 (internal
quotation marks omitted). Accordingly, there being no language
5
in the deed showing a contrary intent, "this general rule must
be applied." Id. at 279, 35 S.E.2d at 129.
Similarly, the Miller deed unambiguously conveys property
bounded by an alley without any reservation or limitation. The
deed specifically describes the boundaries of the property as
extending "to an alley, running north and south and leading into
Prince Street, thence south forty four feet four inches." Since
there is no language in the deed showing a contrary intent, the
Miller deed conveyed title to the centerline of the alley. 4
We reject Martin's contention that the language in the
Miller deed granting a "right of way over said alley in common
with others entitled thereto" shows an intention by the grantor
to retain ownership of the entire alley. Under the general rule
of construction, the Miller deed granted ownership in only four
feet of the eight-foot wide alley. In granting a right of way
over the alley, the deed conveyed an easement over the four feet
retained by the grantor. In fact, Martin's position is
inconsistent with the language in the Browne/Robinson deed,
which also includes the conveyance of a right of way over the
4
We note that the Brown/Robinson deed, under which Martin
claims ownership of the alley, likewise describes his property
as running "to an alley." Martin has advanced no legal
rationale or principled reason as to why this language conveyed
any greater ownership rights to the alley than the language
contained in the Miller deed.
6
alley. Had the grantor intended to retain ownership of the
alley when he conveyed the property in the Miller deed, it would
have been unnecessary to include a right of way over the alley
in the Browne/Robinson deed.
Therefore, we hold the circuit court properly ruled that
the Garners own in fee simple up to the centerline of that
portion of the alley abutting their property at 122 Prince
Street. 5
B. Ownership of Remaining Portion of Alley
Martin argues the circuit court erred in ruling there was
no justiciable controversy with regard to his claim of ownership
of the remaining length of the alley.
"A circuit court has the power to issue declaratory
judgments under Code §§ 8.01-184 through -191. Pursuant to this
authority, circuit courts may make 'binding adjudications of
right' in cases of 'actual controversy' when there is
'antagonistic assertion and denial of right.'" Miller v.
Highland County, 274 Va. 355, 369–70, 650 S.E.2d 532, 538–39
(2007) (citing Code § 8.01-184; Hoffman Family, L.L.C. v. Mill
5
Martin also assigns error to the circuit court's reliance
on two deeds recorded in 1794 and its disregard of the merger of
the fee underlying the alley. Because the circuit court's
judgment is supported by the language of the Miller deed, which
all parties agree is determinative of Garners' ownership of the
alley, discussion of these assignments of error is unnecessary.
7
Two Assocs. P'ship, 259 Va. 685, 692, 529 S.E.2d 318, 323
(2000); Blue Cross & Blue Shield v. St. Mary's Hosp., 245 Va.
24, 35, 426 S.E.2d 117, 123 (1993); Erie Ins. Group v. Hughes,
240 Va. 165, 170, 393 S.E.2d 210, 212 (1990)); see also Code
§ 8.01-191 ("This article['s] . . . purpose is to afford relief
from the uncertainty and insecurity attendant upon controversies
over legal rights."); Charlottesville Area Fitness Club
Operators Ass'n v. Albemarle Cnty., 285 Va. 87, 98, 737 S.E.2d
1, 6 (2013) (citing City of Fairfax v. Shanklin, 205 Va. 227,
229, 135 S.E.2d 773, 775 (1964)); Yukon Pocahontas Coal Co. v.
Ratliff, 175 Va. 366, 368-69, 8 S.E.2d 303, 304 (1940).
[A]n actual controversy is a prerequisite to a court
having authority. If there is no actual controversy
between the parties regarding the adjudication of
rights, the declaratory judgment is an advisory
opinion that the court does not have jurisdiction to
render. The prerequisites for jurisdiction, an actual
controversy regarding the adjudication of rights, may
be collectively referred to as the requirement of a
"justiciable controversy."
Fitness Club Operators, 285 Va. at 98, 737 S.E.2d at 6.
"The controversy, therefore, must be one that is
'justiciable,' meaning a controversy in which there are
'specific adverse claims.'" Blue Cross & Blue Shield, 245 Va.
at 35, 426 S.E.2d at 123 (quoting Shanklin, 205 Va. at 229, 135
S.E.2d at 775). "[T]he declaratory judgment statute . . .
'contemplates that the parties to the proceeding shall be
8
adversely interested in the matter as to which the declaratory
judgment is sought.'" Chick v. MacBain, 157 Va. 60, 66, 160
S.E. 214, 216 (1931) (quoting Patterson v. Patterson, 144 Va.
113, 120, 131 S.E. 217, 219 (1926)).
[T]he question involved must be a real and not a
theoretical question; the person raising it must have
a real interest to raise it; he must be able to secure
the proper contradicter, that is to say, someone
presently existing who has a true interest to oppose
the declaration sought.
Patterson, 144 Va. at 120, 131 S.E. at 219 (internal quotation
marks omitted).
Additionally, a controversy is "justiciable" only if the
claim is "'based upon present rather than future or speculative
facts, [that] are ripe for judicial adjustment.'" Blue Cross &
Blue Shield, 245 Va. at 35, 426 S.E.2d at 123 (quoting Shanklin,
205 Va. at 229, 135 S.E.2d at 775). The "proof and allegation"
must aver a controversy beyond "the realm of speculation."
River Heights Assocs. v. Batten, 267 Va. 262, 268, 591 S.E.2d
683, 686 (2004); see also Fitness Club Operators, 285 Va. at 98,
737 S.E.2d at 6–7; Cupp v. Board of Supervisors, 227 Va. 580,
591, 318 S.E.2d 407, 412 (1984).
In Martin's pleadings, he seeks a declaration that he owns
the fee underlying the entire length of the alley. He does not
allege, however, that the Abutting Owners have asserted an
ownership interest in the alley. Although Martin alleges
9
generally that "[e]ach of the Abutting Owners and/or their
predecessors in interest have from time to time blocked, stopped
up, and/or interrupted" the alley "and/or disputed Martin &
Drewry's rights as owners of the fee underlying" the alley,
there is no allegation detailing a specific violation of
Martin's alleged rights in the entire alley. (Emphasis added.) 6
Indeed, the Garners do not claim ownership of any portion of the
alley other than that portion abutting their own property which
was adjudicated by the circuit court.
Thus, with respect to the portion of the alley not abutting
the Garners' property, Martin's pleadings do not allege "present
facts" evidencing a "specific adverse claim" between parties
with "true interest to oppose" Martin's claim to ownership of
the alley. Blue Cross & Blue Shield, 245 Va. at 35, 426 S.E.2d
at 123 (quoting Shanklin, 205 Va. at 229, 135 S.E.2d at 775);
Patterson, 144 Va. at 120, 131 S.E. at 219. See also Chick, 157
Va. at 66, 160 S.E. at 216. Contrary to Martin's argument, the
fact that the Abutting Owners "were before the court and the
relevant deeds were in evidence," is insufficient to establish a
justiciable controversy between the parties. Accordingly, the
circuit court did not err in dismissing Martin's claim seeking a
6
The Abutting Owners who did file pleadings have not
asserted an ownership interest in the alley.
10
declaration of ownership as to the remaining length of the
alley.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the circuit court.
Affirmed.
11