Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Lacy and Koontz, S.JJ.
R. FORREST SCOTT, ET AL.
OPINION BY
v. Record No. 100149 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
April 21, 2011
BURWELL’S BAY IMPROVEMENT ASSOCIATION
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
Westbrook J. Parker, Judge
In this appeal, we consider whether the circuit court
erred in ruling that a party seeking to establish ownership of
riparian rights by adverse possession, or, alternately, a
prescriptive easement to use those rights, failed to prove
these claims by clear and convincing evidence. The principal
issue we must decide is whether the evidence was sufficient
under that standard to show that the use of the riparian
rights was exclusive and continuous for the required period of
time.
BACKGROUND
In our prior consideration of this case, we gave an
extensive history of the ownership of the riverfront property
and the riparian rights that are the subject of the dispute
between the parties. Burwell’s Bay Improvement Association v.
Scott, 277 Va. 325, 327-29, 672 S.E.2d 847, 848-49 (2009). We
will not repeat the full history of the case here, but need
only summarize the relevant background that is more fully
recounted in our prior opinion.
Since 1960, Burwell’s Bay Improvement Association
(“Burwell’s Bay”) has owned a tract of land, commonly referred
to as the “Public Acre,” along the navigable waters of the
James River in Isle of Wight County. In 1925, pursuant to
former Code § 1998 (1924), Edwin T. Poole obtained an order
granting him the right to construct a wharf and pier extending
into the James River from the riverfront of the Public Acre,
which then was owned by Isle of Wight County, and to charge
the public set fees for its use. Over time, Poole’s wharf was
expanded to include a pavilion and attached piers resting on
pilings placed in the subsurface lands of the James River
within the area between the mean low-water mark and the line
of navigation.
Through a chain of successive recorded transfers, the
pavilion and piers were acquired by members of the Bracey
family, including R. Forrest Scott, in 1989. The Bracey
family performed extensive renovations to the pavilion and
began using it as a family retreat. The pavilion and the
connecting piers in the riparian area of the Public Acre were
destroyed by a hurricane in 2003. Although a number of
pilings that supported the original structures remain in
place, no reconstruction has occurred.
In 2006, Burwell’s Bay received approval from the
Virginia Marine Resources Commission (“VMRC”) to construct a
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pier from its property into the riparian area formerly
containing the pavilion and piers that had been destroyed in
2003. This pier would extend past and around the pilings that
still remain from the destroyed pavilion and piers, and would
limit access from any reconstructed facilities to the line of
navigation.
On March 7, 2007, Scott and other members of the Bracey
family filed a complaint in the Circuit Court of Isle of Wight
County seeking a declaratory judgment that they “own riparian
and other rights on and adjacent to” the Public Acre, to
determine the extent of those rights, and to enjoin the
construction by Burwell’s Bay of the proposed pier or any
other structure within the riparian area of the Public Acre
that would interfere with the Bracey family’s rights. The
Bracey family alleged that their ownership of the riparian
rights arose either from their chain of title through Poole or
by adverse possession. Alternately, they contended that even
if they did not own the riparian rights in question, they had
obtained a prescriptive easement to the use of the riparian
area encompassed by the pavilion and its piers.
In its first consideration of the case, following a bench
trial, the circuit court found that the 1925 court order gave
Poole the right to construct and maintain riparian structures
over the waters of the James River adjacent to the Public
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Acre, that the Bracey family had acquired those riparian
rights by title, and that Burwell’s Bay’s proposed pier would
interfere with those rights. We awarded Burwell’s Bay an
appeal and reversed the judgment of the circuit court,
agreeing with Burwell’s Bay that the 1925 court order granted
Poole only a personal, non-transferable license. Id. at 331,
672 S.E.2d at 850. We noted, however, that while the circuit
court had based its ruling on the nature of the rights granted
by the 1925 order, it had also denied Burwell’s Bay’s motion
to strike the Bracey family’s evidence supporting the
alternate claims of adverse possession and prescriptive
easement. Id. at 332, 672 S.E.2d at 851. Accordingly, we
remanded the case for a determination of whether the Bracey
family had obtained riparian rights by adverse possession or a
prescriptive easement to use those rights. Id.
On remand, the circuit court took no additional evidence,
but considered the matter based upon the prior record and
additional argument of the parties received in a hearing held
on September 11, 2009. By an order dated October 28, 2009,
the court ruled that the Bracey family had “not proven by
clear and convincing evidence their claim of adverse
possession, prescription, or adverse use of the riparian
rights of Defendant.” Accordingly, the court entered judgment
for Burwell’s Bay. We awarded the Bracey family this appeal.
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DISCUSSION
Standard of Review
Before examining the merits of the Bracey family’s claim
that the circuit court erred in ruling that they had not met
their burden of proving adverse possession or prescription, we
must determine the appropriate standard of review to be
applied in this case. The Bracey family contends that the
application of the facts of a given case to determine whether
there has been adverse possession or prescription with regard
to a real property right presents a question of law that we
should review de novo. See, e.g., Quatannens v. Tyrrell, 268
Va. 360, 365, 601 S.E.2d 616, 618 (2004). Burwell’s Bay
contends that the court’s judgment that the Bracey family had
not met the burden of proving their claims by clear and
convincing evidence necessarily involved its determination of
the underlying facts and must be upheld unless plainly wrong.
Martin v. Moore, 263 Va. 640, 646, 561 S.E.2d 672, 676 (2002).
Both parties are essentially correct. Issues of adverse
possession and prescription present mixed questions of law,
reviewed de novo, and fact, to which the reviewing court gives
deference to the determination of the trial court. Unlike
Quatannens, the case relied upon by the Bracey family, where
the facts were “largely undisputed,” 268 Va. at 365, 601
S.E.2d at 618, in the original trial of this case the parties
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extensively disputed the nature of the Bracey family’s use of
the riparian rights through their ownership of the pavilion
and whether they could prove the applicable time periods
required for adverse possession and prescription. Although
the circuit court did not make express findings of fact, it
was the trier of fact of the disputed issues. Thus, we must
give deference to the court’s judgment by reviewing the
evidence in the light most favorable to Burwell’s Bay, the
prevailing party. Taking that view of the evidence, we will
then apply it to the law of adverse possession and
prescription de novo.
Adverse Possession or Prescriptive
Easement of Riparian Rights
Initially, we note that the submerged lands of the James
River adjacent to the Public Acre starting at the mean low-
water mark are held in trust for the benefit of the public by
the Commonwealth, which exercises control over the
construction of wharfs, piers and other riparian structures
thereon through the oversight of VMRC. * See Code § 28.2-1200
*
On brief, Burwell’s Bay contends that the Bracey
family’s claims of adverse possession and prescriptive
easement must fail because they would affect the title of the
subsurface lands of the James River belonging to the
Commonwealth. No such claim was asserted by the Bracey family
in their complaint. Rather, they were clearly asserting
claims only to apportion Burwell’s Bay’s riparian rights that
are appurtenant to the Public Acre.
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et seq. However, it has long been recognized that while the
Commonwealth holds the title to the bed of a navigable river,
such as the James River, the owners of the adjacent land have
certain riparian rights for the use of the river. Taylor v.
Commonwealth, 102 Va. 759, 773, 47 S.E. 875, 880 (1904). The
term “riparian rights” refers to a specific set of five
benefits that accrue to the owner of land adjacent to a
navigable river. Specifically, the owner has
“The right to be and remain a riparian proprietor
and to enjoy the natural advantages thereby
conferred upon the land by its adjacency to the
water.”
“The right of access to the water, including a right
of way to and from the navigable part.”
“The right to build a pier or wharf out to navigable
water, subject to any regulations of the State.”
“The right to accretions or alluvium.”
[And,] “[t]he right to make a reasonable use of the
water as it flows past or laves the land.”
Id. at 773, 47 S.E. at 880-81.
To prove adverse possession of riparian rights against
the true owner, “the plaintiff ‘must show actual, hostile,
exclusive and continuous possession for the period of the
statutory bar’ by ‘acts of such notoriety that the true owner
has actual knowledge, or may be presumed to know, of the
adverse claim.’ ” Custis Fishing & Hunting Club, Inc. v.
Johnson, 214 Va. 388, 392, 200 S.E.2d 542, 545 (1973) (quoting
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Leake v. Richardson, 199 Va. 967, 976, 103 S.E.2d 227, 234
(1958)). Likewise, a party may obtain a prescriptive easement
to use riparian rights in a similar manner. Leake, 199 Va. at
977-78, 103 S.E2d at 235. In either case, the claimant must
prove all the elements by clear and convincing evidence.
Harkleroad v. Linkous, 281 Va. 12, 18, 704 S.E.2d 381, 383-84
(2011).
The Bracey family contends that the circuit court erred
in failing to award them ownership of the riparian rights at
issue because the evidence shows that they have met each of
the requirements for adverse possession for the statutorily-
mandated period of fifteen years. Code § 8.01-236. Likewise,
they contend that, even if they have not acquired title to the
riparian rights, the court should have granted them a
prescriptive easement to use those rights because the evidence
shows that the use has extended for more than the twenty years
required to obtain an easement by prescription. See, e.g.,
Hafner v. Hansen, 279 Va. 558, 563, 691 S.E.2d 494, 497
(2010).
Burwell’s Bay responds that the circuit court’s judgment
that the Bracey family did not prove by clear and convincing
evidence their claims of adverse possession of the riparian
rights, or a prescriptive easement for the use thereof, should
be upheld. This is so, Burwell’s Bay contends, because the
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evidence failed to show that the Bracey family’s occupation of
the riparian area was continuous for the requisite periods
because their occupation began in 1989 and ended when the
pavilion was destroyed in 2003. Burwell’s Bay further
contends under the facts of this case that the Bracey family
cannot use the doctrine of tacking to claim the period of
occupation by the previous owners of the pavilion, nor can
they use the continued presence of a number of the pilings as
evidence of their continued occupation of the riparian area
after 2003. Thus, Burwell’s Bay maintains that the Bracey
family occupied the riparian area for at most approximately 14
years, a period insufficient to establish either adverse
possession or prescription.
While in most respects the law of adverse possession and
prescription are consistent in application, “[t]he character
of the acts necessary to vest one with a title by adverse
possession [or a prescriptive right] varies with the nature of
the property involved, the conditions surrounding it, and the
use to which the property may be adapted.” Leake, 199 Va. at
976, 103 S.E.2d at 234. “Where the land is . . . under the
water . . . the acts of [adverse] ownership must indicate a
change of condition, showing a notorious claim of title,
accompanied by the essential elements of adverse possession.”
Id.
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Likewise, a claim to riparian rights over navigable
waters presents a unique condition of the property that
requires a special consideration of the “use to which the
property may be adapted.” The construction and maintenance of
permanent structures in a river clearly “indicate a change of
condition, showing a notorious claim of title” to riparian
rights. Accordingly, there is no question that the Bracey
family’s ownership of the pavilion constituted both an
“actual” and “hostile” assertion of the right to occupy the
riparian area adjacent to the Public Acre, and that their
occupation was “continuous” between 1989 and 2003.
However, in 2003 when the pavilion was destroyed, leaving
only a number of the associated pilings, the principal
evidence of the Bracey family’s occupation of the riparian
area ended. In order to assert a continuing claim to the
riparian rights, it would be necessary for the Bracey family
to have shown that they continued to exert “actual” control
over the riparian area by acting to exclude others from
entering it, or by taking positive, visible actions to
reconstruct the destroyed structures. Between 2003 and 2007,
when they filed their complaint for declaratory judgment,
however, the record contains no appreciable evidence of such
action taken by the Bracey family to assert any continuing
claim over the riparian area formerly occupied by the pavilion
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and its associated piers. Thus, we hold that the Bracey
family did not prove by clear and convincing evidence that
they had asserted an adverse claim to ownership of the
riparian rights for the requisite period of time.
Alternately, the Bracey family contends that even if they
cannot show that they asserted a continuing claim to the
riparian rights after 2003, they still can establish the
requisite time periods for adverse possession or prescription
by including the period of occupation by the prior owners of
the pavilion under the doctrine of tacking. We disagree.
The doctrine of tacking, that is, the combining of
successive occupations or uses of property by adverse or
prescriptive claimants to establish the requisite time period
for the claim asserted, is little discussed in our case law.
Clearly, however, the party making a claim where tacking is
asserted must prove when the adverse or prescriptive period
began to run. McNeil v. Kingrey, 237 Va. 400, 405, 377 S.E.2d
430, 433 (1989); Clatterbuck v. Clore, 130 Va. 113, 121, 107
S.E. 669, 672 (1921). Therefore, the claimant must introduce
clear and convincing evidence to prove the date or period of
time when all of the elements of proof for adverse possession
or prescription were first established. The doctrine of
tacking does not permit a litigant to add periods of time that
include the actions of a predecessor in title when such
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actions were by right, permission, or agreement. See, e.g.,
Harris v. Deal, 189 Va. 675, 689-90, 54 S.E.2d 161, 167-68
(1949); Edmunds & Abernathy v. Pike, 136 Va. 270, 274-75, 118
S.E. 91, 92 (1923); Sims v. Capper, 133 Va. 278, 287-88, 112
S.E. 676, 679 (1922). In order to tack successive claims, a
party must establish that any prior period of possession that
is to be included in their claim was adverse, as defined by
Virginia law. Calhoun v. Woods, 246 Va. 41, 45, 431 S.E.2d
285, 287-88 (1993). Tacking does not allow time to be added
simply because the activities of prior occupiers were similar
to the uses that are asserted by a subsequent claimant.
Rather, the evidence must show that the prior occupants were
asserting the same claims to possession of, or a prescriptive
easement over, the property in question.
Here, the evidence showed that the two most recent prior
owners of the pavilion were Le Bay, Inc. and John Read. Scott
testified that Read had partitioned off part of the pavilion
and “lived in that for a period of time” and also stored some
materials “for his construction outfit.” No evidence was
presented as to what Le Bay, Inc.’s activities were.
Moreover, no evidence was presented that Read or Le Bay, Inc.
ever asserted an exclusive claim to the riparian rights at
issue.
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Additionally, the Bracey family’s own evidence showed
that the pavilion and its attached piers had long been
considered as open to the public for various uses by the
Bracey family’s predecessors in title. Following its
construction, the pavilion was viewed as an extension of the
Public Acre, and continued to be so viewed even after the
Public Acre was sold by the County to Burwell’s Bay. While
undoubtedly the prior owners of the pavilion from time to time
operated it for commercial purposes, it is equally clear that
government bodies, civic groups, and members of the public
also used the facilities as a matter of course.
This evidence falls well below the clear and convincing
standard required to prove adverse possession or prescriptive
use of the riparian rights by the immediate prior occupants.
Thus, the Bracey family could not use tacking to establish the
requisite time periods prior to the destruction of the
pavilion in 2003. Accordingly, the Bracey family failed to
present clear and convincing evidence of an exclusive,
continuous claim to ownership or use of the riparian rights.
CONCLUSION
For these reasons, we hold that the circuit court did not
err in ruling that the Bracey family had not met its burden of
proving either ownership by adverse possession of the riparian
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rights or a prescriptive easement to their use. Accordingly,
the judgment of the circuit court will be affirmed.
Affirmed.
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