Present: All the Justices
BURWELL’S BAY IMPROVEMENT ASSOCIATION
v. Record No. 080698 OPINION BY JUSTICE DONALD W. LEMONS
February 27, 2009
R. FORREST SCOTT, ET AL.
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
Westbrook J. Parker, Judge
In this appeal, we consider whether a 1925 order of the
Circuit Court of Isle of Wight County granting to a specified
person the “right and privilege” to erect a wharf was
sufficient to convey riparian rights to the recipient’s
successors in interest.
I. Facts and Proceedings Below
The Code of Virginia, as in effect in 1924, provided a
means by which a private citizen could petition for the
privilege to build a wharf:
Any person desiring the privilege of erecting a
wharf at or on any county landing may, after
giving notice of his intention by advertising
such notice at some public place near the
landing, and also at the front door of the
courthouse of such county, on the first day of a
term of the circuit court of said county,
present to the court at its next term a petition
for such privilege. The circuit court may
determine the same, and may, in its discretion,
grant such privilege and fix such rates and
charges upon such conditions and limitations as
to it may seem fit.
Code § 1998 (1924). 1 In 1925, pursuant to this statute, Edwin
T. Poole (“Poole”) petitioned the Circuit Court of Isle of
Wight County (“the County”) for “the privilege of erecting a
wharf” extending into the James River, adjacent to land owned
by the County and referred to as the “Public Acre.” The
petition was granted, subject to the right of the public to
use the wharf in exchange for the payment of certain fees.
Although it appears Poole did operate a commercial wharf on
the site for some time, at some later point he built and
operated a recreational facility known as “the Pavilion” on
pilings over the water adjacent to the Public Acre. The
Pavilion was accessed by a pier constructed during the period
Poole controlled the property.
The Pavilion and its pier were sold a number of times,
eventually coming into the possession of members of the Bracey
family in 1989. The family used the Pavilion as a retreat
home, and built an additional pier extending into the river in
1995. These uses continued until the Pavilion and the
connecting piers were destroyed by Hurricane Isabel on
September 18, 2003. R. Forrest Scott and other members of the
Bracey family (“the Braceys”), the appellees here, intend to
1
Former Code § 1998 (1924) has been combined with former
Code § 1999 (1924) (concerning revocability of granted
privileges), and appears in substantially similar form in Code
§ 62.1-165.
2
rebuild the Pavilion and piers on their original locations
once they are able to finalize plans and funding.
These plans eventually led to conflict with the Burwell’s
Bay Improvement Association (“the Association”), the appellant
here, which had purchased the Public Acre from the County in
1960. In 2006, the Association filed a permit application,
seeking authorization to build its own pier extending into the
James River from the Public Acre. This new pier would extend
past and around the pilings that still remain from the
destroyed Pavilion and its piers, and would be situated
between a rebuilt Pavilion and the open water of the James
River.
The Braceys filed suit against the Association, asserting
that they had “acquired by grant, adverse possession or
prescription” rights, including riparian rights, over the
property. They sought a declaration that they owned riparian
rights in the property and a determination of the scope of
those rights, a declaration that the Association’s proposed
pier would interfere with those rights, and an injunction
preventing the Association from building its contemplated
pier. At the close of the Braceys’ case-in-chief, the
Association made an oral motion to strike all evidence
relating to the Braceys’ claim of rights by adverse possession
or prescription. The trial court denied the motion.
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Following the trial, the court issued a letter opinion,
holding that the Braceys owned riparian rights in the property
by virtue of the 1925 court order, and that those rights
extended to the four-foot line of navigability as depicted on
the plat prepared by the Braceys’ expert. Based on this
holding, the trial court concluded that the Association’s pier
would impermissibly interfere with the Braceys’ rights, and
therefore enjoined the construction of the Association’s pier.
The Association appealed to this Court, and we granted its
appeal, limited to the following two assignments of error:
1. The court erred in concluding pursuant to its
opinion letter dated January 2, 2008 that appellees
had acquired riparian rights pursuant to the Isle of
Wight Circuit Court’s order dated July 6, 1925 in
granting a prior user of the property in question
the right and privilege to erect a pier or wharf.
2. The court erred notwithstanding its error in
granting riparian rights to appellees but also erred
in the manner and extent of the apportionment of the
riparian rights granted to appellees.
II. Analysis
A. Acquisition of Riparian Rights by Court Order
The Association first challenges the trial court’s
determination that the Braceys acquired riparian rights by
virtue of the 1925 court order granting a “right and privilege
of erecting a wharf” to Poole. The legal effect of a court
order is a question of law, and we review such issues de novo
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on appeal. Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37,
41, 630 S.E.2d 301, 303 (2006).
As a general rule, riparian rights are appurtenant to
land, and are included when the land is conveyed. Waverly
Water-Front Improv. Co. v. White, 97 Va. 176, 33 S.E. 534
(1899). The law in Virginia is clear, as both parties agree,
that riparian rights are severable from the property to which
the rights were originally appurtenant. Thurston v. City of
Portsmouth, 205 Va. 909, 912, 140 S.E.2d 678, 680 (1965).
Further, such severance need not be explicit, and may be
accomplished by clear implication when one party conveys to
another the right to build a wharf or pier by easement, Irby
v. Roberts, 256 Va. 324, 330, 504 S.E.2d 841, 844 (1998), or
by lease, see Grinels v. Daniel, 110 Va. 874, 876, 67 S.E.
534, 535 (1910). In Irby, we reviewed our decision in Grinels
holding that a lease for the purposes of building a steamboat
wharf carried with it riparian rights: “[I]n making such a
grant . . . the landowner did not ‘part with his riparian
rights to any greater extent than was necessary to enable the
lessees to erect the wharf.’ Implicitly, however, the
landowner must part with those rights necessary to fulfill the
intent of the grant.” Irby, 256 Va. at 330, 504 S.E.2d at 844
(citation omitted) (quoting Grinels, 110 Va. at 876, 67 S.E.
at 535). However, we have not had occasion to decide the
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extent and duration of riparian rights obtained by virtue of a
court order pursuant to Code § 62.1-165 or its predecessor
statutes.
Upon initial consideration, the treatment of riparian
rights in the easement and lease contexts suggests that a
court order granting the right to build a wharf would
accomplish the same severance and conveyance of riparian
rights. When Poole obtained from the county the right to
construct a wharf pursuant to statute via the 1925 court
order, he necessarily obtained from the county the “rights
necessary to fulfill the intent of the grant.” Irby, 256 Va.
at 330, 504 S.E.2d at 844. The trial court explicitly
acknowledged this, holding that “a wharf, by its very nature,
carries with it riparian rights.”
However, the nature of the riparian rights “necessary to
fulfill the intent of the grant” by definition depends upon
the nature and extent of the grant itself. Grinels concerned
two women who obtained a lease, for them and their successors,
on a quarter-acre of riverfront property “ ‘for the purposes
of constructing a steamboat wharf, and to give the public an
uninterrupted travel thereto and from.’ ” 110 Va. at 875, 67
S.E. at 535. Some years later, the lessor’s successor brought
suit, asserting his continuing riparian rights and seeking to
restrain unrelated uses of the wharf. Id. at 876, 67 S.E. at
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535. We held that although the lessor had conveyed to the
lessees the riparian rights necessary to accomplish the stated
purposes, that was all he conveyed, and that he retained
sufficient rights to prevent uses inconsistent with the
purposes of the lease. Id. at 876-78, 67 S.E. at 535-36.
We have reiterated this concept with regard to riparian
rights obtained by easement. In Irby, a very similar case, we
dealt with a deed granting “ ‘a 30[-foot] easement . . . for
the purpose of constructing a pier.’ ” 256 Va. at 329, 504
S.E.2d at 843. Relying on Grinels, we held that implicit in
the deed was a conveyance of only “those rights necessary to
fulfill the intent of the grant.” Id. at 330, 504 S.E.2d at
844.
The nature of the grant here is similarly dispositive.
By its express terms, the court order relied upon by the trial
court merely granted to Poole “the right and privilege of
erecting a wharf.” The statute under which Poole petitioned
the circuit court allowed courts to evaluate petitions for
“the privilege of erecting a wharf at or on any county
landing,” and to “determine the same and . . . grant such
privilege and fix such rates and charges upon such conditions
and limitations as to it may seem fit.” Code § 1998 (1925)
(now Code § 62.1-165). Whereas the lease in Grinels was to
the original lessees and their successors, and the easement in
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Irby, like all easements appurtenant, passed to the successors
of the holder of the easement unless extinguished by some
legal means, privileges such as the one granted to Poole by
court order do not pass to successors. Indeed, the court
order specified only Poole as the grantee. When Poole died,
the personal privilege he received by court order also
expired.
Because the riparian rights implicitly conveyed by a
grant are limited to “those rights necessary to fulfill the
intent of the grant,” Irby, 256 Va. at 330, 504 S.E.2d at 844,
it follows that when a grant has ceased to be effective, the
accompanying riparian rights are no longer effective. The
Association argued at trial that the personal nature of the
grant defeated the Braceys’ claim to have received riparian
rights by way of the court order. It has assigned error to
the trial court’s holding that the riparian rights were not
personal to Poole. We agree with the Association. As a
matter of law, the Braceys could not have obtained riparian
rights under the 1925 court order granting the privilege to
Poole. 2
B. Acquisition of Riparian Rights by Prescription
2
Accordingly, we do not consider the error assigned by
the Association to the trial court’s apportionment of riparian
rights.
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The Braceys assert that even if we find the trial court
erred in holding that they have riparian rights under the 1925
court order, we should still affirm the judgment of the trial
court because the Braceys acquired riparian rights by adverse
possession or prescription. The Braceys made this alternative
argument at trial in addition to their claim of riparian
rights pursuant to the 1925 court order.
Here, the trial court’s ruling did not address adverse
possession or prescription, but instead relied solely on the
legal effect of the 1925 court order to establish the Braceys’
riparian rights. The trial court did, however, overrule the
Association’s oral motion to strike the claim relating to
prescription or adverse possession at the close of the
Braceys’ case-in-chief.
In considering a motion to strike for failure to
establish a prima facie case, a trial court evaluates the
evidence put on by the plaintiff in the light most favorable
to that party, and is entitled to draw all fair inferences
therefrom. Baysden v. Roche, 264 Va. 23, 25, 563 S.E.2d 725,
726 (2002); Hadeed v. Medic-24, Ltd., 237 Va. 277, 285-86, 377
S.E.2d 589, 593 (1989). Consequently, the trial court’s
denial of the Association’s motion to strike did not resolve
the issue. Considering the evidence in the light most
favorable to the Braceys, the trial court only determined that
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the Braceys had presented enough evidence for their claim
based on adverse possession or prescription to go forward.
The Association then had the opportunity to present relevant
evidence and did so in this case. Because the trial court
erred in its holding regarding the legal effect of the 1925
court order and did not decide the claim of adverse possession
or prescription, we will remand the matter to the trial court
for consideration of the legal and factual efficacy of these
remaining issues.
III. Conclusion
For the reasons stated, we hold that the trial court
erred in holding that the Braceys obtained riparian rights by
virtue of the 1925 grant to Poole. Accordingly, we will
reverse the judgment of the trial court and remand the matter
for the trial court’s consideration of the claims of adverse
possession and prescription. The trial court should resolve
these questions based upon the evidence previously presented
at trial.
Reversed and remanded.
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