Burdette v. BRUSH MOUNTAIN ESTATES, LLC

PRESENT: All the Justices

KELLY BURDETTE
OPINION BY
v. RECORD NO. 082079 JUSTICE CYNTHIA D. KINSER
SEPTEMBER 18, 2009
BRUSH MOUNTAIN ESTATES, LLC

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Robert M.D. Turk, Judge

In this appeal, we consider two questions: (1) whether the

provisions of Code § 55-2, requiring that estates in lands be

conveyed by a deed or will, apply to the conveyance of an

easement; and (2) whether the circuit court erred in determining

that two certain parcels of real property are encumbered with a

50-foot easement for ingress, egress, and public utilities.

Although we conclude that Code § 55-2 is inapplicable to the

conveyance of easements because an easement is not an estate, we

will reverse the judgment of the circuit court. The deeds at

issue, along with a plat incorporated therein for descriptive

purposes, do not contain operative words manifesting an

intention to grant an easement.

RELEVANT FACTS AND PROCEEDINGS

The appellant, Kelly Burdette, owns 8.281 acres of land,

consisting of Parcel "A" and Parcel "B," located in Montgomery

County. Burdette acquired the real property from Thomas E.

Davis and Margaret V. Davis by deed dated December 8, 1999

(Davis/Burdette deed). The appellee, Brush Mountain Estates,
LLC, owns an adjacent parcel of real property located on the

east side of Burdette's property, identified as Tax Parcel

27(A)40.

The Davis/Burdette deed contained the following pertinent

language:

That for and in consideration of the sum of Ten
Dollars ($10.00), and other good and valuable
consideration, all cash in hand paid by the Grantee to
the Grantors, the receipt of which is hereby
acknowledged, the said Grantors do hereby bargain,
grant, sell and convey [to the] Grantee, all that
certain lot or parcel of land, lying and being in
. . . Montgomery County, Virginia, containing 8.281
acres, consisting of and being Parcel "A", containing
6.487 acres and Parcel "B", containing 1.794 acres, as
shown on a plat of survey entitled "PLAT OF SURVEY OF
BOUNDARY LINE ADJUSTMENT FOR THOMAS E. DAVIS &
MARGARET DAVIS", . . . designated Document No. 17214-
02, which plat of survey is of record in the Clerk's
Office of the Circuit Court of Montgomery County,
Virginia, in Plat Book 19, Page 223.

The deed also stated that the conveyance was "made subject to

all easements, reservations, restrictions and conditions of

record affecting the hereinabove described property."

The boundary line adjustment plat (the Plat) referenced in

the Davis/Burdette deed was prepared and recorded in conjunction

with a September 2, 1999 deed from Gordon M. Roberts, II and

Mary Alice Roberts, and the Harvey Family Partnership # 1 to the

Davises (Roberts/Davis deed). In that deed, the Davises

acquired Parcel "B." They already owned Parcel "A." The

Roberts/Davis deed contained substantially the same language as

2
that set forth in the subsequent Davis/Burdette deed, including

the statement that the conveyance was "made subject to all

easements, restrictions and conditions of record affecting the

hereinabove described property."

Brush Mountain, as a party of the third part, executed the

Roberts/Davis deed in order to effect a release of its option to

purchase Parcel "B." The stated consideration for the release

was "One ($1.00) Dollar, cash in hand paid, and other good and

valuable consideration."

The Plat referenced in both deeds depicts a 50-foot

easement that traverses the southern portion of Parcel "A" and

Parcel "B" and contains two separate notations stating, "SEE

NOTE # 6." Note # 6 on the Plat contains the following

language: "50' PRIVATE EASEMENT FOR INGRESS, EGRESS AND PUBLIC

UTILITY FOR THE BENEFIT OF TAX PARCEL 27(A)40 [Brush Mountain's

real property], IS HEREBY CONVEYED." The Plat was signed before

notaries public by the Robertses, the Harvey Family Partnership

# 1, Brush Mountain, and the Davises.

Brush Mountain submitted a request to rezone its Tax Parcel

27(A)40, indicating its intent to develop the property and

access it via the easement shown on the Plat. Burdette

apparently learned of Brush Mountain's intent and filed a

complaint for declaratory judgment against Brush Mountain in the

circuit court. Burdette contested Brush Mountain's claim of an

3
easement over her property, alleging "there is no easement

established by any of the methods recognized in law and that

there is no deed or will granting [such] rights to [Brush

Mountain]." In response, Brush Mountain filed an answer and

counter-complaint for declaratory judgment, asking the circuit

court to declare that Brush Mountain is "entitled to

unrestricted use" of the easement as shown on the Plat.

Brush Mountain then moved for summary judgment. After

considering the parties' letter memoranda, the circuit court

granted summary judgment in favor of Brush Mountain, holding

that "a 50-foot private easement for ingress, egress and pubic

utility" exists for the benefit of Tax Parcel 27(A)40, owned by

Brush Mountain, over the real property owned by Burdette and

ordering Burdette not to interfere with Brush Mountain's use of

the easement as shown on the Plat. In a letter opinion

incorporated in the final order, the circuit court framed the

question before it as whether the notes on the Plat were

sufficient to create an easement for the benefit of Brush

Mountain. The court concluded

in this particular instance, an easement to Brush
Mountain Estates, LLC exists as a result of the [P]lat
referenced herein. It is clear from the documents
presented that Thomas E. Davis and Margaret V. Davis
granted, pursuant to this [P]lat, a 50-foot easement
to benefit Brush Mountain Estates, LLC. Kelly
Burdette then obtained the property from the Davis[es]
with at least constructive knowledge that this
easement existed.

4
 . . . .

These deeds all conveyed property that was subject to
existing easements. Clearly, the public record shows
that an easement did, in fact, exist for Brush
Mountain Estates, LLC. By incorporating the [P]lat
into [their deed, the Davises] accepted all notations
that were made on that [P]lat and all easements and
whatever encumbrances on [their] property it may have
shown.

Burdette now appeals from the circuit court's judgment.

ANALYSIS

Relying on Code § 55-2, Burdette argues that any interest

in land, including an easement, can be conveyed only by a deed

or will and that Code § 55-48 provides the proper form for a

deed. Burdette further contends there is no deed conveying the

easement at issue to either Brush Mountain or its predecessors

in title and that the Plat, being neither a deed nor a will, did

not convey the easement. According to Burdette, the circuit

court properly framed the issue as whether the notes on the Plat

were sufficient to create an easement but then erroneously

concluded that the Davises granted, pursuant to the Plat, a 50-

foot easement to Brush Mountain despite the absence of any

language of conveyance in either the Roberts/Davis deed or the

Davis/Burdette deed.

Brush Mountain, however, asserts that the provisions of

Code § 55-2 are not applicable and the existence of a deed

complying with the requirements of Code § 55-48 is not essential

5
to the conveyance of an easement. Brush Mountain further argues

that, even assuming Code § 55-2 does require an easement to be

conveyed by a deed in the prescribed form, the Roberts/Davis

deed and the Davis/Burdette deed suffice. According to Brush

Mountain, both deeds refer to and incorporate the Plat and both

contain language stating that the particular conveyance was

subject to easements of record affecting the described property.

In relevant part, Code § 55-2 provides: "No estate of

inheritance or freehold or for a term of more than five years in

lands shall be conveyed unless by deed or will." 1 The provisions

of Code § 55-2, by their plain terms, apply only to estates.

Although this Court has never specifically addressed whether an

easement is an estate, we have held that "[e]asements are not

ownership interests in the servient tract but 'the privilege to

use the land of another in a particular manner and for a

particular purpose.'" Russakoff v. Scruggs, 241 Va. 135, 138,

400 S.E.2d 529, 531 (1991) (quoting Brown v. Haley, 233 Va. 210,

216, 355 S.E.2d 563, 567-68 (1987)); see also Clayborn v.

Camilla Red Ash Coal Co., 128 Va. 383, 392, 105 S.E. 117, 120

(1920) (referring to an easement as an incorporeal

hereditament); Restatement of Property § 467 cmt. c ("An estate

differs from an easement in that an estate is an interest in

1
Code § 55-48 merely sets out the proper form of a deed.

6
land which is or may become possessory while an easement is

never a possessory interest.").

If an easement is not an ownership interest in land, it is

axiomatic that an easement is not an estate. This conclusion is

consistent with authorities from numerous jurisdictions. See,

e.g., City and County of San Francisco v. Calderwood, 31 Cal.

585, 589 (Cal. 1867) ("The public took nothing but an easement,

and that term excludes the idea of an estate in the land on

which the servitude was imposed."); Posick v. Mark IV Constr.

Co., 952 A.2d 1271, 1274 (Conn. App. Ct. 2008) ("An easement is

not an estate in land, but is merely an interest in land in the

possession of another."); Sears, Roebuck & Co. v. Franchise Fin.

Corp. of Am., 711 So. 2d 1189, 1191 (Fla. Dist. Ct. App. 1998)

("An easement is an incorporeal, nonpossessory interest in land

which concerns the use of the land of another. An easement is

not an estate in land and does not convey title to land or

dispossess the owner of the land subject to the easement.

Instead, an easement only grants the right to use the property

for some particular purpose or purposes."); Sun Valley Land &

Minerals, Inc. v. Hawkes, 66 P.3d 798, 802 (Idaho 2003) ("An

easement is not an estate in land, but is merely an interest in

land in the possession of another."); Farnes v. Lane, 161 N.W.2d

297, 299 (Minn. 1968) ("A private easement appurtenant is not an

estate in land. It is an incorporeal hereditament which permits

7
use of the land of another in a way fixed by the scope and

nature of the easement granted or otherwise acquired."); Voltmer

Family Farms, Inc. v. Board of Equalization, 343 N.W.2d 755, 757

(Neb. 1984) ("An easement is not an estate in land, and the

estate in fee simple from which an easement is granted is not

reduced to a lesser estate as a result of the easement. . . .

An easement is an interest in real estate, an incorporeal

hereditament, which permits use of another's land for a

specified purpose." (citations omitted)); Douglas v. Medical

Investors, Inc., 182 S.E.2d 720, 722 (S.C. 1971) ("An easement

is a right which one person has to use the land of another for a

specific purpose and gives no title to the land on which the

servitude is imposed. An easement is therefore not an estate in

lands in the usual sense." (internal quotations and citations

omitted)); Hayes v. Gibbs, 169 P.2d 781, 786 (Utah 1946)

(defining an easement as a servitude rather than an interest in

land); Town of Menasha v. City of Menasha, 168 N.W.2d 161, 165

(Wis. 1969) ("An easement is not an estate in land[.] An

easement . . . exist[s] distinct from the ownership of the

soil. . . . an easement differs from a fee or a limited fee in

that in case of an easement title does not pass but only a right

to use or privilege in the land of another." (internal quotation

marks omitted)).

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 Since an easement is not an estate, the provisions of Code

§ 55-2 do not control the conveyance of an easement. The

history of that statute supports this holding. "While its

Virginian statutory antecedents date back to 1705, Code § 55-2,

sometimes called the statute of conveyances, see, e.g., Smith v.

Payne, 153 Va. 746, 756, 151 S.E. 295, 298 (1930), apparently is

based in part upon section three of the English Statute of

Frauds, 29 Chas. II, c.3 (1677)." Burns v. Equitable Assocs.,

220 Va. 1020, 1031, 265 S.E.2d 737, 744 (1980). Section three

of the English Statute of Frauds provided, in relevant part:

[N]o Leafes, Eftates or Interefts, either of Freehold,
or Terms of Years, or any uncertain Intereft, not
being Copyhold or cuftomary Intereft, of, in, to or
out of any Meffuages, Manors, Lands, Tenements or
Hereditaments, fhall . . . be affigned, granted or
furrendred, unlefs it be by Deed or Note in Writing,
figned by the Party fo affigning, granting or
furrendring the fame.

29 Chas. II, c. 3 (1676). Notably, that statute included

interests in land; whereas Code § 55-2 omits any reference to

mere interests in land. The General Assembly, by limiting Code

§ 55-2 to estates, clearly intended to exclude easements from

the requirements of Code § 55-2.

Furthermore, this Court has found that an easement was

granted pursuant to a written instrument not in the form of a

deed, see, e.g., Corbett v. Ruben, 223 Va. 468, 470-71, 290

S.E.2d 847, 848-49 (1982) (recognizing grant of an easement

9
pursuant to a "document styled 'Declaration and Easement'");

Davis v. Cleve Marsh Hunt Club, 242 Va. 29, 34, 405 S.E.2d 839,

842 (1991) (finding an express grant of a permanent right-of-way

in a contract for sale), and by an oral agreement and part

performance, see, e.g., Buckles v. Kennedy Coal Corp., 134 Va.

1, 15-16, 114 S.E. 233, 237 (1922) (recognizing that the statute

of frauds can be evaded by part performance of obligations and

"that it would be strange indeed if it did not also include the

parol creation of an easement"). See also Bunn v. Offutt, 216

Va. 681, 684, 222 S.E.2d 522, 525 (1976) ("Easements may be

created by express grant or reservation, by implication, by

estoppel or by prescription."). Certainly, a deed may convey an

easement. See Code § 55-6 ("Any interest in or claim to real

estate, including easements in gross, may be disposed of by deed

or will."). The permissive language of Code § 55-6, i.e., "may

be disposed of by deed," refutes, however, the argument that

Code § 55-2 requires easements to be conveyed by a deed in the

form prescribed by Code § 55-48.

Our holding that Code § 55-2 is inapplicable to the

conveyance of easements, however, does not end our analysis.

The circuit court did not mention Code § 55-2 in its final order

or letter opinion. Instead, the court concluded that, by

incorporating the Plat into their deed, the Davises accepted all

notations on the Plat, including the 50-foot easement that

10
encumbered their property. The court specifically relied on the

language in the Roberts/Davis deed and the Davis/Burdette deed

subjecting the respective conveyance to easements of record

affecting the described property.

In Davis v. Henning, 250 Va. 271, 275, 462 S.E.2d 106, 108

(1995), we considered "subject to" language in a deed and

resolved whether such language "was sufficient to bring an

easement into existence or whether the language merely

acknowledged the easement as a previously existing right

burdening the servient tract being conveyed." There, Parco

Building Corporation executed in 1980 a deed of easement

granting George J. Parker the right to use a dirt road to access

Parker Lane, a public right of way, from the "Davis parcel,"

which was owned by Parker and was a portion of a tract that

formerly contained 7.103 acres. Id. at 273, 462 S.E.2d at 107.

A few days later, Parker acquired the remainder of the 7.103-

acre tract, and the parties agreed that the 1980 deed of

easement from Parco to Parker was extinguished pursuant to the

doctrine of merger when Parker acquired both the Davis parcel

and the remainder of the 7.103-acre tract. Id. at 274, 462

S.E.2d at 107. In 1984, Parker conveyed all of the 7.103-acre

tract except the Davis parcel to Parker Road Associates. Id. at

273, 462 S.E.2d at 107. That deed contained language stating

"[t]his deed is made subject to . . . that certain easement of

11
right of way granted to George J. Parker by deed of Parco

Building Corporation . . . dated July 11, 1980 and duly of

record in the Clerk's Office above mentioned." Id. at 274, 462

S.E.2d at 107 (second alteration in original).

That deed provision was the source of the parties'

disagreement as to whether the then owner of the Davis parcel

had an easement over the remainder of the 7.103-acre tract to

access Parker Lane. Id. at 274, 462 S.E.2d at 108. We observed

that the phrase "subject to" "is generally a phrase of

'qualification and notice' and that it 'does not create

affirmative rights.' " Id. (quoting S. L. Nusbaum & Co. v.

Atlantic Virginia Realty Corp., 206 Va. 673, 679, 146 S.E.2d

205, 209 (1966)). That observation, however, did not dispose of

the case; we also considered what the parties intended when they

used the phrase "subject to" in the 1984 deed. Id. at 274-75,

462 S.E.2d at 108.

Recognizing that Parker may have been unaware that the 1980

deed of easement was extinguished by merger when he acquired

both tracts, we concluded that the "subject to" language was

"consistent with acknowledging an existing right which is

excepted from the transfer, thereby continuing an existing

limitation on the grantee's fee simple ownership of the dirt

road [and] inconsistent with creating or recreating a right not

in existence and reserving that right for the grantor's

12
benefit." Id. at 275, 462 S.E.2d at 108. Thus, considering the

"subject to" language and the circumstances when the deed was

executed, we held "that the 1984 deed did not create an express

easement in favor of the Davis parcel." Id.; see also Taylor v.

McConchie, 264 Va. 377, 383, 569 S.E.2d 35, 38 (2002) (language

in a deed stating the conveyance was "'subject to all easements

. . . of record'" meant merely that any existing rights were

excepted from the conveyance).

In Strickland v. Barnes, 209 Va. 438, 164 S.E.2d 768

(1968), however, this Court reached an ostensibly contrary

result. There, a deed to the plaintiffs' predecessor in title

stated that the conveyance was "made subject to the easements

and restrictions shown on the said plat." Id. at 439, 164

S.E.2d at 770. The referenced plat depicted several easements,

one of which was a 25-foot strip " 'Reserved for future R.R.

Siding.' " Id. The 25-foot strip was situated along the

southern boundary of several lots, two of which were owned by

the plaintiffs. Id. at 446, 164 S.E.2d at 774.

Although the "crucial question" in the case was whether the

deed granted an easement for ingress and egress across the 25-

foot strip or only an easement to use a railroad siding if one

were constructed on the 25-foot strip sometime in the future, we

first addressed the defendants' assertion that their predecessor

in title did not convey any easement across the 25-foot strip

13
but merely reserved the strip for his own use. Id. at 439, 442,

164 S.E.2d at 770. We rejected that argument because the

defendants' predecessor owned fee simple title to the 25-foot

strip and such a reservation would therefore have been

meaningless. Id. Thus, we concluded that in the context of the

particular deed at issue, the language stating "[t]his deed is

made subject to the easements and restrictions shown on the said

plat" were "words of conveyance." Id.

We find several significant factual differences between the

case before us and Strickland. First, we are confronted in the

Roberts/Davis deed and the Davis/Burdette deed with "subject to"

language commonly used, i.e., "boiler plate" language, to notify

a purchaser of real property about existing encumbrances that

may apply to the property. But see Davis, 250 Va. at 275, 462

S.E.2d at 108 (language subjecting a conveyance to a particular

easement of record was not "boiler plate" language). The

"subject to" language at issue in Strickland referred to

easements on a specific plat; whereas, the "subject to" language

in both the Roberts/Davis deed and the Davis/Burdette deed fails

to mention a specific easement or plat. Further, the lots

comprising the dominant estate in Strickland were identifiable

on the referenced plat, but the Plat here depicts a 50-foot

easement across Parcels "A" and "B" and continuing to real

property not included in the survey and identified only in Note

14
# 6 as "Tax Parcel 27(A)40." Looking solely at the Plat, a

person could not determine the size of Tax Parcel 27(A)40 and

thus could not glean any information about the extent of the

burden imposed on the servient estate.

Additionally, the purported owner of the dominant estate,

Brush Mountain, was a stranger to the Roberts/Davis deed except

for the limited purpose of releasing its option to purchase

Parcel "B" and was a complete stranger to the Davis/Burdette

deed. Brush Mountain, nevertheless, asserts it has an express

easement for the benefit of Tax Parcel 27(A)40 across Parcel "A"

and Parcel "B" based on the depiction of a 50-foot easement on

the Plat, Note # 6, and the "subject to" language in the

Roberts/Davis deed and the Davis/Burdette deed. We do not

agree.

Neither statutory nor common law requires the grantor of an

easement to employ any particular words of art so long as "'the

intention to "grant" is so manifest on the face of the

instrument that no other construction could be put upon it.'"

Corbett, 223 Va. at 471, 290 S.E.2d at 849 (quoting Albert v.

Holt, 137 Va. 5, 10, 119 S.E. 120, 122 (1923)); accord

Chesapeake & Potomac Tel. Co. of Va. v. Properties One, Inc.,

247 Va. 136, 139, 439 S.E.2d 369, 371 (1994). "Thus, a

provision in an instrument claimed to create an easement must be

strictly construed, with any doubt being resolved against the

15
establishment of the easement." Chesapeake & Potomac Telephone,

247 Va. at 139, 439 S.E.2d at 371 (citing Town of Vinton v. City

of Roanoke, 195 Va. 881, 893, 80 S.E.2d 608, 615 (1954)).

Considering the particular circumstances of the two deeds

and Plat at issue, and resolving any doubt against the

establishment of an easement, we conclude there was no

conveyance of an express easement across Parcels "A" and "B" for

the benefit of Brush Mountain's Tax Parcel 27(A)40. We are

persuaded by the rationale in Davis and conclude, as we did

there, that the "subject to" language in the Roberts/Davis deed

and the Davis/Burdette deed operates only as a phrase of

" 'qualification and notice' " and " 'does not create

affirmative rights.' " Davis, 250 Va. at 274, 462 S.E.2d at 108

(quoting Nusbaum, 206 Va. at 679, 146 S.E.2d at 209). The only

reference to the Plat in the two deeds was in connection with

the property being conveyed. Neither deed mentions the Plat in

the phrase subjecting the conveyances to easements of record.

Furthermore, the Plat alone cannot serve as an instrument

of conveyance. When a deed incorporates a plat by reference,

the plat is considered part of the deed itself but only for

descriptive purposes to establish the metes and bounds of the

property being conveyed. See Auerbach v. County of Hanover, 252

Va. 410, 414-15, 478 S.E.2d 100, 102 (1996) (noting that a plat

incorporated by reference in a deed is considered part of the

16
deed itself, but utilizing the plat only for the purpose of

establishing metes and bounds); Faison v. Union Camp Corp., 224

Va. 54, 59, 294 S.E.2d 821, 824 (1982) (same); Mahoney v.

Friedberg, 117 Va. 520, 528-29, 85 S.E. 581, 583 (1915) ("But

when a lot is thus described as on a map or plat, to which

reference is made, such map or plat becomes, for the purpose of

description a part of the deed and has the same effect as though

it were incorporated into the instrument."); Edmunds v. Barrow,

112 Va. 330, 332, 71 S.E. 544, 544 (1911) (noting that a survey

report was a part of a plat and both were referred to "in the

partition deed for the purpose of fixing the metes and bounds of

the several parcels of land conveyed[, therefore t]he report of

survey and plat were . . . as much a part of the deed of

partition as if they had been copied into the deed"); Schwalm v.

Beardsley, 106 Va. 407, 409, 56 S.E. 135, 136 (1907) ("The

description on the plat . . . is therefore as much a part of the

deed . . . as if it were copied into the deed."); State Savings

Bank v. Stewart, 93 Va. 447, 453, 25 S.E. 543, 544 (1896)

("Where a map of land is referred to in a deed for the purpose

of fixing its boundaries, the effect is the same as if it were

copied into the deed."); see also Il Giardino, LLC v. Belle

Haven Land Co., 757 A.2d 1103, 1119 (Conn. 2000) ("[R]eference

to a map in a conveyance normally is utilized merely as a

descriptive tool to identify the property and, therefore, does

17
not itself convey."); Roberts v. Osburn, 589 P.2d 985, 993 (Kan.

Ct. App. 1979) ("It would appear that even though a plat may be

incorporated by reference into a deed for descriptive purposes,

its effect is limited to being a descriptive tool. The plat

itself does not convey."); Lancaster v. Smithco, Inc., 144

S.E.2d 209, 211 (S.C. 1965) ("A plat, however, is not an index

to encumbrances, and the mere reference in a deed, as in this

case, to a plat for descriptive purposes does not incorporate a

notation thereon as to an easement held by a third party so as

to exclude such easement from the covenant against encumbrances

in the absence of a clear intention that it so operate.").

In sum, the Plat, despite its Note # 6 and the fact that

all the parties to the Roberts/Davis deed signed the Plat,

cannot serve as an instrument of conveyance. While the Plat was

incorporated into both deeds for descriptive purposes, there

still must be an instrument of conveyance, though not

necessarily a deed in the form prescribed by Code § 55-48, in

order to grant an express easement. See Corbett, 223 Va. at

471, 290 S.E.2d at 849 (the phrase "hereby create and establish"

signified an intent to grant an easement). Also, the instrument

must contain operative words of conveyance sufficient to

demonstrate the manifest intention to grant an easement. Id.

As we have already explained, neither the Roberts/Davis deed nor

18
the Davis/Burdette deed contained the necessary words of

conveyance. 2

CONCLUSION

For these reasons, we will reverse the judgment of the

circuit court and remand for entry of an order consistent with

this opinion to be recorded in the land records of Montgomery

County.

Reversed and remanded.

2
The case before us is not analogous to those instances
when we held that purchasers of subdivision lots acquire private
easements over the rights-of-way that are shown on the
subdivision plats. See, e.g., Ryder v. Petrea, 243 Va. 421,
423, 416 S.E.2d 686, 688 (1992); Lindsay v. James, 188 Va. 646,
653, 51 S.E.2d 326, 329 (1949). Our decision today should not
be viewed as casting doubt on the holdings in such cases.

19