Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Russell, S.J.
THE BARTER FOUNDATION, INC., ET AL.
OPINION BY
v. Record No. 022409 JUSTICE LAWRENCE L. KOONTZ, JR.
January 16, 2004
GORDON L. WIDENER, ET AL.
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles B. Flannagan, II, Judge
In this appeal, we consider the rights of owners of land
with respect to an adjoining undeveloped parcel that was
dedicated for use as a public street in 1944, but which has
never been formally accepted by the governing public authority.
BACKGROUND
On April 22, 1940, Investors Service Corporation conveyed
to Benson S. Alleman a 50-acre tract in the Town of Abingdon
(the Town) that formerly had been a portion of the land owned
by, and containing the buildings of, Stonewall Jackson College. 1
Alleman subdivided two sections of that property by separate
plats in May and June of 1943 respectively. These platted
subdivisions were designated as “White Addition No. 1” and
“White Addition No. 2.” The certificates filed with the plats
when both were recorded in the land records of Washington County
1
Although the property was deeded to Alleman, both Alleman
and his wife executed the subsequent subdivision certifications
and conveyances related to this property. We will refer to both
parties as “Alleman” hereafter.
provide that they “shall operate to create a public easement or
right of passage over said portion of the premises platted, as
is on this plat set apart for streets, or other public use.” 2
On May 25, 1944, Alleman recorded a plat and certificate
showing the subdivision of the remaining section of the
property, designating this subdivision as the “College Building
Tract.” The plat depicted seventy lots numbered consistent with
the scheme used to identify the lots depicted on the White
Addition No. 1 and No. 2 subdivision plats. The plat also
depicted a large unnumbered lot containing four former college
buildings. As did the certificates for the first two platted
subdivisions, the certificate accompanying the College Building
Tract subdivision plat stated that it “shall operate to create a
public easement or right of passage over said portion of the
premises platted, as is on this plat set apart for streets, or
other public use.”
The College Building Tract subdivision plat depicts Court
Street, an existing public street on the western edge of the
property, and a portion of “White Avenue,” a proposed street
that appears on the White Addition No. 1 subdivision plat and
2
The two plats depict existing public streets that were not
part of the property Alleman acquired in 1940 as well as
proposed streets that were the subject of the “public easement
2
which is today known as “White Street.” In addition, the plat
depicts three other streets, two of them being forty feet wide
and the other twenty-five feet wide. One of the forty foot wide
streets connects with White Avenue and runs north between lot
120 and lots 20 to 24, and then east between the lot containing
the college buildings and lots 120 to 137. This street,
currently known as “Barter Drive,” has been accepted by the Town
and has been widened to forty-five feet as the result of a
subsequent dedication. Barter Drive has been partially paved
and opened to public use. The end of Barter Drive is maintained
by The Barter Foundation, Inc. and is used as a parking area.
The other forty foot wide street depicted on the College
Building Tract subdivision plat runs south from the eastern end
of Barter Drive between lot 137 and lot 99 to an intersection
with White Avenue. As with Barter Drive, a subsequent
dedication of an additional five feet to the right-of-way
increased the width of the street to forty-five feet. However,
this street has not been paved or otherwise opened to public use
and remains in a more or less natural state, being covered with
grass and trees.
The twenty-five foot wide street depicted on the College
Building Tract subdivision plat, which is the property at issue
or right of passage” granted in the certificates accompanying
3
in this appeal, runs north from the intersection of the two
forty foot wide streets along the eastern boundary of the lot
containing the four college buildings, terminating at the
southern boundary of lot 139 as shown on the White Addition No.
2 subdivision plat. This proposed street has never been
accepted formally by the Town. With the exception of the
creation of a “Shakespearean Garden” maintained by a garden club
at one point along its route, the street has remained
undeveloped and in a more or less natural state to the present
day.
On May 25, 1944, the same day that the College Building
Tract subdivision plat was recorded, Alleman conveyed to S. H.
Rivers the lot containing the four college buildings. The metes
and bounds description of the lot in the deed and the depiction
of the lot on an incorporated plat establish that the conveyance
did not include the area designated as the twenty-five foot wide
street. 3
On October 17, 1945, Rivers conveyed a portion of his
property to E. A. Hines. As described in the deed and depicted
the plats.
3
See the attached copy of an excerpt from a 1944 plat that
was incorporated in the Alleman/Rivers deed. We have altered
this plat to highlight the disputed street and to generally
identify the various locations of the properties of the parties
with respect to that street and other streets referenced in
4
on an incorporated plat, the southeast corner of the property
acquired by Hines was located at the intersection of Barter
Drive and the twenty-five foot wide street. The deed also
references the plat incorporated in the Alleman/Rivers deed,
stating that “[i]t is understood between the parties hereto that
the streets as shown on said plat . . . have been dedicated for
the purpose of and are public streets for the use of the owners
of said lots described on said plat . . . and the public
generally.” Subsequent conveyances of this property make
reference to the twenty-five foot wide street and contain
language similar to that in the Rivers/Hines deed indicating
that it has been dedicated as a public street.
Through this chain of title, The Barter Foundation, Inc.
ultimately became the owner of the property containing the four
college buildings formerly owned by Alleman and lying west of
the twenty-five foot street. Mary Dudley Porterfield and Gordon
L. Widener are the owners of the properties lying east of the
twenty-five foot wide street. 4 It is undisputed that the
various deeds and plats. It is intended only as a general
schematic depiction.
4
Widener’s son, Christopher D. Widener, daughter, Karen W.
Koontz, and son-in-law, Thomas F. Koontz, also have an interest
in his property and were named as parties to the suit from which
this appeal arises and are parties to this appeal. However,
“Widener was treated by the parties for the purposes of this
litigation as the equitable owner of [their] property.”
5
properties lying east of the twenty-five foot wide street were
not part of the property acquired by Alleman in 1940, and none
of these properties are landlocked such that they would require
use of the twenty-five foot wide street for ingress and egress.
A plat prepared for Widener of his property in January 1996
shows the street in question as “(25’ STREET UNDEVELOPED)” along
his property’s western edge. This plat also indicates that the
two forty foot wide streets have been widened to forty-five feet
as the result of a “5’ DEDICATION OF STREET TO TOWN OF
ABINGDON.”
On June 7, 1999, Widener received a letter from Graham M.
Newman, Abingdon Town Manager, confirming an earlier
conversation between Widener and Newman concerning Widener’s
desire “to make the [twenty-five foot wide street] right-of-way
useable to access [his] property.” Newman indicated that the
Town had no objection to Widener’s request to “mow the right-of-
way, remove some trees and stumps (clearing and grubbing) and
[undertake] minor leveling of the grade . . . as long as it is
done reasonably, without creating a nuisance.” Newman further
stated, however, that “the right of way in question has not been
Accordingly, for convenience, we will refer to these parties
collectively as “Widener.”
6
opened by the Town to public use and has not been accepted by
the Town for maintenance purposes.”
On November 10, 1999, The Barter Foundation, Inc. and Mary
Dudley Porterfield (collectively, Barter) filed an amended bill
of complaint against Widener and the Town seeking a
determination that the dedication of the proposed twenty-five
foot wide street has been abrogated through lack of use by the
public, and that as a result “Barter is the owner of the real
property free and clear of the proposed easement.” Barter
further sought a permanent injunction prohibiting Widener from
“entering or damaging” the property. 5
Widener filed an answer to the bill of complaint asserting
essentially that Barter could not claim ownership of the
disputed property because it was estopped to do so by language
in the deeds in its chain of title acknowledging the dedication
of the property as a public right-of-way. Widener further
asserted that the Town owned the disputed property because it
5
Alternately, Barter asserted that Widener could not
undertake the proposed clearing of the twenty-five foot wide
street because such action was contrary to certain provisions of
the Code of the Town of Abingdon regarding the opening of
previously unopened rights-of-way. This assertion does not
impinge upon our resolution of this appeal and, accordingly, we
express no opinion thereon.
7
had accepted the dedication of all the proposed streets depicted
on the College Building Tract subdivision plat. 6
On August 29, 2001, following an extended period of
discovery, the chancellor conducted an ore tenus hearing at
which evidence in accord with the above-recited facts was
received from a land surveyor, Town officials, the parties, and
other witnesses. In addition, the chancellor heard evidence
concerning use of the twenty-five foot wide street by the public
over the last sixty years. Specifically, Widener testified that
his father-in-law “used to use it to go to work” in the 1960s.
Widener’s wife testified that in her youth she and other
children would walk to school over the street and that
automobiles sometimes would drive over it.
In a final decree dated July 16, 2002, the chancellor found
that the Alleman plats “were a dedication to the public of all
the streets shown thereon.” Based upon the evidence and a view
taken of the property, the chancellor further found that
“although . . . Barter Drive and the street extending from
Barter Drive to White Street have been accepted by the Town of
Abingdon, the Town has not accepted the dedication of the
6
The Town did not file an answer, although counsel for the
Town participated in the subsequent proceedings. Counsel stated
that “[t]he Town does not favor one party over the other in this
action.” The Town is also a party to this appeal, but did not
file a brief.
8
subject 25 foot [wide] street.” However, in part based on the
wording of the certificate filed with the College Building Tract
subdivision plat, the chancellor also found that “a public right
of way or easement . . . exists separately and independently
from whether the Town has accepted the dedication” and, thus,
“the Wideners and . . . other members of the public have and own
a right of way or easement to travel across and use the said 25
foot [wide] street as a public way.” Accordingly, the
chancellor decreed that Barter did not “own the fee simple title
to the 25 foot [wide] street . . . set out in the Alleman plat,”
decreed that Barter’s requested injunctive relief was “without
merit,” and dismissed Barter’s bill of complaint “with
prejudice.”
We awarded Barter this appeal and also accepted an
assignment of cross-error raised by Widener.
DISCUSSION
For its part, Barter contends that the chancellor erred in
finding that there can be a right-of-way or easement over the
twenty-five foot wide street in favor of the public in the
absence of an acceptance of the dedication of that right-of-way
by the Town. Barter further contends that the chancellor erred
in failing to find that the dedication of the street in question
has been abandoned and, as a result, that Barter has become the
fee simple owner of the property. Widener, by assignment of
9
cross-error, contends that the chancellor erred in not finding
that the Town had accepted dedication of the twenty-five foot
wide street by implication. We will consider the assignment of
cross-error first, because a determination that there has been
an acceptance of the dedication by implication would moot the
remaining issues of the appeal.
The parties do not challenge the chancellor’s finding that
Alleman’s 1944 recorded plat and certificate for the subdivision
of the College Building Tract constituted a dedication to the
public of all the streets depicted thereon. The record is
unclear, however, whether the chancellor considered that
dedication to be in compliance with the statutory scheme
applicable to such dedications in 1944 or whether the chancellor
considered the dedication to be governed by common law. For
purposes of our resolution of the issue raised by Widener upon
cross-error, the distinction is not critical. Fundamental and
long established principles regarding land conveyances under the
then applicable statutory scheme or the common law make this
clear.
Because a definite and certain grantee was required in
order to take land by conveyance or grant at common law, a
landowner could not effectively convey or grant an interest in
his land to the general public as grantee. However, in order to
facilitate the creation of public streets and other public areas
10
for the benefit of the general public, the doctrine of
dedication evolved and recognized the rights acquired by the
public by estopping the dedicator from disputing those rights.
Payne v. Godwin, 147 Va. 1019, 1024-25, 133 S.E. 481, 482-83
(1926). We have explained in numerous cases that:
“Dedication, at common law, was a grant to the public,
by a landowner, of a limited right of use[] in his
land. No writing or other special form of conveyance
was required; unequivocal evidence of an intention to
dedicate was sufficient. Until the public accepted
the dedication, it was a mere offer to dedicate.”
Brown v. Moore, 255 Va. 523, 529, 500 S.E.2d 797, 800 (1998)
(quoting McNew v. McCoy, 251 Va. 297, 299, 467 S.E.2d 477, 478
(1996)). We have further explained that:
Prior to acceptance, the offer to dedicate imposed no
responsibilities upon the public and was subject to
unilateral withdrawal at any time by the landowner.
Acceptance could be formal and express, as by the
enactment of a resolution by the appropriate governing
body, or by implication arising from an exercise of
dominion by the governing authority or from long
continued public use[] of requisite character.
Brown v. Tazewell County Water & Sewerage Auth., 226 Va. 125,
129-30, 306 S.E.2d 889, 891 (1983).
In Brown, we recounted the legislative history of a series
of laws enacted since 1887 relating to dedications of streets
and other public areas within platted, recorded subdivisions.
We noted that under the statutory scheme applicable in 1944 the
acknowledgement and recording of a properly approved subdivision
plat operated “to create a public easement or right of passage
11
over streets shown on the plat.” Id. at 130, 306 S.E.2d at 891;
see also Code (1942) § 5219 (providing that the acknowledgement
and recording of a plat complying with Code (1942) § 5217 is
equivalent to a deed in fee simple). However, we stressed that
“although such ‘dedication by map’ was irrevocable by the
dedicator, the rights of the public were merely inchoate, and
that the dedication was not complete until accepted by competent
public authority.” 7 Id. at 130, 306 S.E.2d at 891.
In view of these principles, the critical question to our
resolution of the issue raised by Widener’s cross error is
whether the evidence established that the Town has manifested an
intent to accept the dedication of the property at issue as a
public street. Whether there has been a sufficient
manifestation of such intent is a mixed question of law and
fact. When reviewing the judgment of a chancellor upon such an
issue, we review the application of the law de novo, while
giving deference to the chancellor’s factual findings. See
Caplan v. Bogard, 264 Va. 219, 225, 563 S.E.2d 719, 722 (2002).
The record supports the chancellor’s finding that the Town
has not formally accepted Alleman’s dedication of the twenty-
five foot wide street depicted in the College Building Tract
7
The current statutory scheme for the recordation of plats
dedicating land for public streets is contained in Code § 15.2-
2265.
12
subdivision plat and referenced in the certification. Widener,
relying on Ocean Island Inn v. City of Virginia Beach, 216 Va.
474, 479, 220 S.E.2d 247, 252 (1975), contends that the Town
should be deemed to have accepted the dedication of that street
because the chancellor found that the Town had accepted the two
forty foot wide streets, thus manifesting an intent to accept
all the streets depicted on the plat.
The doctrine of implied acceptance of a dedication of
property for public use provides that:
where a governing body has accepted part of the
streets appearing on a recorded plat and no “intention
to limit the acceptance” is shown, such partial
acceptance constitutes acceptance of all of the
streets, provided the part accepted is sufficiently
substantial to evince an intent to accept the
comprehensive scheme of public use[] reflected in the
plat.
Id. (quoting Virginia Hot Springs Co. v. Lowman, 126 Va. 424,
435, 101 S.E. 326, 330 (1919) and Village of Lee v. Harris, 69
N.E. 230, 232 (Ill. 1903)).
However, in Ocean Island Inn, and in other cases where we
have considered whether there was an acceptance by implication
of an offer of dedication, the evidence was not merely that the
governing authority had accepted some of the property offered
for dedication, but rather that there had been “an ‘exercise of
jurisdiction and dominion’ by the governing authority” over the
property dedicated to the public, such as the paving of streets
13
or installation and maintenance of public utilities. Id. at
477, 220 S.E.2d at 250 (quoting Staunton v. The Augusta
Corporation, 169 Va. 424, 436, 193 S.E. 695, 699 (1937)); see
also, Greenco Corp. v. City of Virginia Beach, 214 Va. 201, 208-
09, 198 S.E.2d 496, 501-02 (1973); City of Richmond v. Gallego
Mills Co., 102 Va. 165, 171, 45 S.E. 877, 879 (1903). We are of
opinion that the evidence in the present case does not rise to
the level necessary to find an acceptance by the Town of the
dedication of the twenty-five foot wide street by implication.
The evidence showed that of the three streets dedicated to
public use on the 1944 plat of the College Building Tract, only
Barter Drive has actually been opened to public use, and the
Town maintains only a portion of that street. Barter has not
challenged the chancellor’s finding that the dedication of the
other forty foot wide street has been accepted by the Town, and,
for purposes of this appeal, we accept that finding. However,
the evidence further showed that this street has never been
paved or otherwise opened to public use, and this property
remains in a more or less natural state. By contrast, there was
express testimony from Town officials that the Town had not
accepted dedication of the twenty-five foot wide street. Under
these facts, placing the burden of maintenance and liability of
ownership on the Town by finding an acceptance of the dedication
of the twenty-five foot wide street by implication is not
14
warranted. Accordingly, we hold that the chancellor correctly
ruled that the Town has not accepted the dedication in the 1944
College Building Tract subdivision plat of this street.
We then must consider Barter’s assignments of error.
Initially, Barter asserts that the chancellor erred in finding
that the dedication of the twenty-five foot wide street depicted
on the 1944 College Building Tract subdivision plat created a
right-of-way to travel across and use that property as a public
way in favor of the general public even in the absence of the
acceptance of that dedication by the Town. We disagree.
Barter’s assertion fails to distinguish between a right of
passage over a platted street which inures to the benefit of the
general public and a platted street which becomes a public
street or highway upon acceptance by the governing body of the
jurisdiction in which the platted street is located. This
distinction is significant. As we have explained above, whether
at common law or by the then applicable statutory scheme, a
street dedicated by plat to public use did not impose the duty
of maintenance or potential liability upon the governing body
until that dedication was accepted by the governing body.
Nevertheless, the general public could accept the dedication by
use of the right of passage granted by the dedicator. It was in
this context, that we stated in Payne that dedication by plat of
a street “is an inchoate right vested in the public, and the
15
street . . . does not become a highway until established or
accepted by competent authority.” Payne, 147 Va. at 1026, 133
S.E. at 483.
There can be no question, and the parties do not dispute,
that Alleman intended to dedicate the property in question as
well as the other areas depicted as streets on the 1944 College
Building Tract subdivision plat to be used for public streets.
In addition, the fact that Alleman did not convey the property
comprising the streets when he sold the adjoining property shows
that he intended, and undoubtedly presumed, the Town would
accept the dedication of that property and use it as streets
open to public use. Because the Town did not do so with regard
to the twenty-five foot wide street, that property never became
a public highway for which the Town assumed the duty to
maintain. Nevertheless, the general public had the right to use
the property for passage in accord with the expressed intent of
Alleman’s certificate and plat. The record reflects such use by
the public, although it was infrequent.
We next consider Barter’s contention that the chancellor
erred in failing to find that the dedication of the street in
question has been abandoned. The essence of Barter’s position
is that, because the Town has not accepted the 1944 dedication
of this street and the general public has not used the right-of-
way for an extended period of time, the dedication should be
16
deemed abandoned through nonuse even without a court proceeding
to confirm that abandonment has occurred. 8
The abandonment of an offer to dedicate property to public
use may be proven in the same manner as the abandonment of an
easement. See Magee v. Omansky, 187 Va. 422, 430-31, 46 S.E.2d
443, 448 (1948). “The party claiming abandonment of an easement
. . . has the burden to establish such abandonment by clear and
unequivocal evidence. Nonuse of an easement coupled with acts
which evidence an intent to abandon . . . constitutes
abandonment . . . . However, mere nonuse will not suffice to
establish an abandonment.” Hudson v. Pillow, 261 Va. 296, 302,
541 S.E.2d 556, 560 (2001) (internal quotations and citations
omitted).
8
Relying on our holding that when such an abandonment is
found and “the dedicator does not reserve or dispose of the fee
in the street, it vests in the purchasers of the abutting lots,”
Payne, 147 Va. at 1025, 133 S.E. at 483, Barter further contends
that, because it is the only adjoining landowner in privity of
title with Alleman, the chancellor should have found that Barter
is vested with fee simple title to the property of the proposed
twenty-five foot wide street. Because of the view we take that
Barter failed to carry its burden to establish that the
dedication has been abandoned, we need not address the
applicability, if any, of this proposition articulated in Payne
to the determination of the fee title of this property had
abandonment of the dedication been established. Moreover,
because we are unable to determine from the record whether the
1944 plat complied with the then applicable statutory scheme for
dedication of streets, we are unable to determine the fee title
of the disputed property in this proceeding, and it is
unnecessary that we do so.
17
While the Town has not accepted the dedication of the
twenty-five foot wide street, either by formal resolution or by
implication, it does not necessarily follow that the Town has
abandoned the offer of dedication of that property. To the
contrary, the evidence showed that the Town was aware of the
offer of dedication and, although it had “not been accepted by
the Town for maintenance purposes,” nonetheless considered the
property to be an “unopened right[]of way . . . useable to
access” the adjoining property. Indeed, it exercised a degree
of dominion and control over the property by requiring its
permission for Widener to clear the right-of-way for his use.
In other words, the Town recognized both the public’s present
right of passage over the twenty-five foot wide street under the
language of the certification filed with the 1944 College
Building Tract subdivision plat and the Town’s inchoate right to
open the right-of-way at some future date by assuming a duty to
maintain the property as a public street. We hold that this
evidence is sufficient to establish that the Town has not
abandoned the offer of dedication.
Additionally, we do not find that the evidence in this case
would support a finding that the public’s right of passage has
been abandoned. Although the evidence in this record of actual
use by the general public of the disputed street over many years
is slight, “mere nonuse will not suffice to establish an
18
abandonment.” Id. The chancellor viewed the property and we
can assume that no substantial changes or uses of the property
inconsistent with a right of passage were revealed by the view.
The record also shows that every deed relating to the
adjoining property expressly mentions the existence of the
right-of-way for public use, thereby confirming the original
grant of that right by the 1944 College Building Tract
subdivision plat and certification. Similarly, every plat in
the record depicting the environs shows the property as a public
right-of-way. Thus, the evidence does not support a finding of
“acts which evidence an intent to abandon,” Hudson, 261 Va. at
302, 541 S.E.2d at 560, but to the contrary show a continuing
recognition of the existence of the public’s right-of-way. We
hold that under these circumstances, Barter, which had the
burden to do so, failed to show by clear and unequivocal
evidence an abandonment of the public’s right to use the
property.
CONCLUSION
For these reasons, we will affirm the chancellor’s decree
reflecting the findings that although the Town has not accepted
dedication of the twenty-five foot wide street, neither has that
dedication been abandoned and, thus, Barter has not acquired fee
simple ownership of the property, and the Wideners and the
19
general public have a right-of-way or easement to use that
property as a public way.
Affirmed.
20
21