Barner v. Chappell

Present: All the Justices

WILLIAM M. BARNER, ET AL.
OPINION BY
v. Record No. 022710 JUSTICE LAWRENCE L. KOONTZ, JR.
September 12, 2003
EDWARD A. CHAPPELL, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel T. Powell, III, Judge

In this appeal, we consider whether the chancellor

correctly determined that a restrictive covenant prohibiting the

building of a house, garage, or other structure on a lot in a

residential subdivision is enforceable by one or more

neighboring landowners. We further consider whether the

chancellor correctly determined, in the alternative, that the

restriction is enforceable by the neighboring landowners as an

equitable servitude.

BACKGROUND

Beginning in 1922, John Garland Pollard, who would

subsequently serve as the Mayor of the City of Williamsburg and

Governor of Virginia, acquired property in the City of

Williamsburg and James City County along what was then known as

Texas Avenue. Between 1924 and 1938, Governor Pollard

subdivided and sold portions of that property for use in the

construction of single-family homes. A recorded plat of a

portion of Governor Pollard’s property dated May 30, 1930
reflects the subdivision of the property at that time. 1 A short,

dead-end road, subsequently designated “Ballard Lane,” extending

from Texas Avenue allowed access to the parcels designated on

the plat as Lots 7, 7A, B, E, and F. A U-shaped road connecting

to Texas Avenue at two points, subsequently referred to in some

deeds as “Hairpin Road,” allowed access to the parcels

designated on the plat as Lots A, B, C, D, 7, 8, and 9. 2 In

addition, another parcel, bounded by Texas Avenue and the

interior curve of Hairpin Road, was designated as a “park.”

Along the outer curve of Hairpin Road between Lot 9 and Texas

Avenue there was a large undivided parcel that was not given a

number or letter designation. At the time the plat was

prepared, Lots A, B, and 9 had already been conveyed. Over the

next two years, Governor Pollard conveyed the remaining

designated parcels, with the exception of Lot 7 where he

maintained his residence.

The park, which remains undeveloped to this day, contains a

natural, wooded ravine. The deeds conveying the lots designated

as A, B, C, D, E, F, and 9 from Governor Pollard to the original

1
See the attached copy of the 1930 plat.
2
The U-shaped road was subsequently designated “Pollard
Park,” which also became the common designation for the
neighborhood. For clarity, we will refer to the road as
“Hairpin Road” and the neighborhood as “Pollard Park” in this
opinion.
2
grantees contain provisions requiring that the park be

maintained perpetually for the mutual benefit of the owners of

lots in Pollard Park. Additionally, provisions in these deeds

limit development on the respective lots to single-family

residences, and impose other construction restrictions such as

twenty-foot setback lines and specified building sites. The

deeds expressly state that these restrictions shall run with the

land.

In 1932, Mary W. Craighill (Craighill) was the record owner

of Lot A which is adjacent to Lot 8. By a deed dated December

3, 1932 and recorded on June 20, 1935, Governor Pollard conveyed

Lot 8, a parcel containing less than one-tenth of an acre

located at the midpoint of the outer curve of Hairpin Road, to

Craighill (the Pollard/Craighill deed). This deed provides that

“[t]he property hereby conveyed is to be used in connection with

[Lot A] and no house, garage or structure of any kind shall be

erected thereon.” 3 This deed further provides that the

restriction shall run with the land “forever.” The

Pollard/Craighill deed is the only deed relating to the

3
On January 29, 1937, Craighill conveyed her interest in
Lot A to a third party. She again became the owner of Lot A by
1951. No evidence was produced that the severance of title of
Lot A and Lot 8 constituted a breach of this provision of the
deed, transforming the restriction into a personal covenant that
expired upon the death of Governor Pollard.

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conveyance of lots in Pollard Park that restricts all

construction.

At the time of the conveyance of Lot 8 to Craighill,

Governor Pollard had previously conveyed all the other lots

designated on the 1930 plat by either numbers or letters with

the exception of Lot 7, where he continued to reside. Governor

Pollard, however, retained ownership of the undivided parcel

located on Hairpin Road between Lot 9 and Texas Avenue. On

January 16, 1937, Governor Pollard conveyed a portion of this

parcel to Marion P. Morecock. The deed conveying this property

contained the same restrictions concerning use of the property

for residential purposes and preservation of the park as the

deeds conveying the other Pollard Park lots prior to the

conveyance of Lot 8. Through a series of subsequent

conveyances, Eugene R. and Maureen B. Tracy (the Tracys)

acquired this property on July 1, 1985.

Following Governor Pollard’s death in 1937, the remainder

of the previously undivided parcel was subdivided into two lots

which were conveyed in 1938 by the executors of Governor

Pollard’s estate to the predecessors-in-title respectively of

Lloyd A. Julien, Jr. and Sarah B. Julien (the Juliens) and Pat

C. Fulmer and Robert M. Fulmer (the Fulmers). The original deed

in the Juliens’ chain of title contained restrictions similar to

those in the deeds conveying lots in Pollard Park prior to

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Governor Pollard’s death; the original deed in the Fulmers’

chain of title did not contain these restrictions, although it

did reference the 1930 plat. On August 5, 1941, the executors

conveyed Lot 7 to the predecessor-in-title of Genevieve T.

Barrett and Jack C. Barrett (the Barretts). The original deed

in the Barretts’ chain of title contained restrictions similar

to those in the deeds conveying other lots in Pollard Park prior

to Governor Pollard’s death.

By recorded deed dated August 5, 1998, William Maxwell

Barner, III and Sandra E. Barner (the Barners) became the owners

of Lot 8. 4 Because they failed to conduct a title examination,

the Barners did not have actual notice of the Lot 8 building

restriction originating from the Pollard/Craighill deed.

However, the Barners do not dispute that the restriction was

discoverable within their chain of title and, thus, that they

had record notice of this restriction. Soon after acquiring Lot

8, the Barners made preparations to construct a single-family

residence upon this lot. 5

4
The Barners are also the record owners of Lot A where they
currently reside.
5
To build this home, the Barners needed a variance because
of certain setback requirements in the Williamsburg Zoning
Ordinance. On November 3, 1998, the Board of Zoning Appeals for
the City of Williamsburg granted the requested variance for Lot
8. An appeal of that decision is pending in the trial court
until the resolution of this appeal.
5
 On August 26, 1999, the Tracys, the Juliens, the Fulmers,

Edward A. Chappell, Susan S. Geary, William T. Geary, Elizabeth

A. Rutgers, Marcia T. Smith, Victor H. Smith, and Joseph S.

Wheeler (collectively, the neighboring landowners), who were at

that time residents and record owners of lots in Pollard Park,

filed a bill of complaint seeking to enforce the restriction in

the Pollard/Craighill deed. 6 The bill of complaint alleged that

the construction of a residence on Lot 8 would violate this

covenant and, therefore, requested that the Barners be

permanently enjoined from building a residence thereon.

Although the bill of complaint did not state the precise theory

under which all the neighboring landowners asserted that they

were entitled to enforce the covenant, it subsequently developed

that the majority of these parties, who trace their ownership of

lots in Pollard Park to deeds that predated the

Pollard/Craighill deed, were relying upon the theory that the

restrictive covenant represented an equitable servitude intended

to benefit all the lots in Pollard Park.

6
The current record owner of Lot 7, Genevieve Barrett, also
joined in the bill of complaint, but was granted a nonsuit early
in the proceedings below. Two other lot owners who initially
joined in the suit have subsequently sold their respective
properties, although they have not formally withdrawn from the
suit. However, the parties remaining in the suit with a current
interest in the litigation are sufficient to allow us to
consider all the issues raised in this appeal.
6
 During an ore tenus hearing held September 27, 2001, the

parties presented conflicting evidence on the purpose of the

covenant. The Barners’ expert witness testified that, in 1932,

the City of Williamsburg had a sewage disposal problem and that

Governor Pollard supported a drainage plan which would run a new

sewer line through Lot 8. The Barners contended that the

building restriction on Lot 8 was intended solely to prevent any

structures from obstructing the proposed sewer line. Because

the Barners were willing to reroute the existing sewer line

around the footprint of their proposed residence, they asserted

that the covenant was no longer needed for its intended purpose

and, thus, had lapsed.

On cross-examination, the Barners’ expert testified that

Lot 8 was naturally a part of the ravine in the center of

Pollard Park prior to the construction of Hairpin Road.

Additionally, he testified that Governor Pollard could have

chosen to place the sewer line along the edge of Lot 8 instead

of permitting the sewer line to bisect this lot so that no

dwelling could be built on it. The neighboring landowners

contended that this indicates that facilitation of the proposed

sewer plan was not Governor Pollard’s primary purpose in

creating the building restriction on Lot 8. Rather, they

contended that Governor Pollard’s intention, as demonstrated by

the building restrictions in all the deeds conveying lots in

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Pollard Park, was to preserve the natural, green character of

the subdivision.

In a final decree dated August 21, 2002, the chancellor,

based on the evidence and a view of Pollard Park, found that

Governor Pollard intended to preserve Lot 8 as an open, green

space and that the purpose of the covenant, therefore, had not

lapsed. The chancellor further found that there was sufficient

vertical privity between at least one of the neighboring

landowners and Governor Pollard and that the restrictive

covenant in the Pollard/Craighill deed met all other

requirements for a covenant running with the land. Thus, the

chancellor determined that this covenant could be enforced

against the Barners. The chancellor also expressly found, in

the alternative, that the restriction was enforceable by all the

neighboring landowners as an equitable servitude. Based upon

these findings, the chancellor permanently enjoined the Barners

and their successors from building a house, garage, or structure

of any kind on Lot 8. We awarded the Barners this appeal.

DISCUSSION

Under well established principles of appellate review, we

will affirm the chancellor’s judgment unless it is plainly wrong

or without evidence to support it. Code § 8.01-680. Moreover,

we consider the evidence in the light most favorable to the

parties who prevailed in the proceedings before the chancellor.

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Willard v. Moneta Building Supply, Inc., 258 Va. 140, 149, 515

S.E.2d 277, 283 (1999).

We first consider whether the chancellor correctly

determined that the restrictive covenant in the

Pollard/Craighill deed originally conveying Lot 8 in Pollard

Park is enforceable by at least one of the neighboring

landowners. A restrictive covenant is enforceable if a

landowner establishes: (1) horizontal privity; (2) vertical

privity; (3) intent for the restriction to run with the land;

(4) that the restriction touches and concerns the land; and (5)

that the covenant is in writing. Waynesboro Village, L.L.C. v.

BMC Properties, 255 Va. 75, 81, 496 S.E.2d 64, 68 (1998); Sloan

v. Johnson, 254 Va. 271, 276, 491 S.E.2d 725, 728 (1997). The

parties agree that the only requirement at issue in this appeal

is whether any of the neighboring landowners can establish

vertical privity to enforce the restrictive covenant. In

addition, the Barners contend that the chancellor erred in

failing to find that the purpose of the restrictive covenant has

lapsed.

Vertical privity exists when there is privity between the

original parties and their successors-in-interest. Id. More

precisely, vertical privity requires that the benefit of a

restrictive covenant extend only to “one who succeeds to some

interest of the beneficiary in the land respecting the use of

9
which the promise was made.” Old Dominion Iron & Steel Corp. v.

Virginia Electric & Power Co., 215 Va. 658, 663, 212 S.E.2d 715,

719-20 (1975) (citing Restatement of Property § 547 (1944)). In

the present case, the neighboring landowners who trace their

ownership of property in Pollard Park through chains of title to

conveyances from Governor Pollard that pre-date the

Pollard/Craighill deed have not established the necessary

vertical privity. This is so because the interests of their

predecessors pre-date the creation of the covenant in the

Pollard/Craighill deed and, thus, they did not succeed “to some

interest of the beneficiary” of the covenant. 7 These landowners

are Edward A. Chappell, Susan S. Geary, William T. Geary,

Elizabeth A. Rutgers, Marcia T. Smith, Victor H. Smith, and

Joseph S. Wheeler.

By contrast, the Tracys, the Juliens, and the Fulmers trace

their ownership of property in Pollard Park to original grantees

in deeds executed after the execution of the Pollard/Craighill

deed and, thus, meet the requirements for vertical privity

7
We recognize that the beneficiary of an express covenant
in a deed may not always be limited to the grantor. Here,
however, there was no express intention to extend the benefit of
the covenant directly to third parties. The absence of such an
express extension of the benefit of the covenant does not,
however, preclude the possibility that third parties may claim
the benefit as an equitable servitude, as will be discussed
infra.

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because they can trace their interests directly to Governor

Pollard, the beneficiary of the restrictive covenant contained

in that deed.

There is no merit to the Barners’ contention that the

Tracys, the Juliens, and the Fulmers do not have the necessary

vertical privity because their lots were originally a part of

the previously undivided parcel between Lot 9 and Texas Avenue

as shown on the 1930 plat. The mere fact that this parcel was

not given a specific number or letter designation on this plat

is of no significance and does not preclude the conclusion that

Governor Pollard intended for this parcel also to benefit from

the restriction imposed upon Lot 8. No evidence in the record

suggests that Governor Pollard intended only Lot 7, upon which

he maintained his residence, to benefit from the restriction he

placed upon Lot 8.

Once a restrictive covenant has been established, the party

asserting that the restriction is unenforceable because changed

conditions have defeated the purpose of the restriction has the

burden of proving that the purpose of the restriction no longer

exists. Conditions must have changed so substantially that the

essential purpose of the covenant is defeated. Smith v.

Chesterfield Meadows Shopping Center Associates, L.P., 259 Va.

82, 84, 523 S.E.2d 834, 835 (2000); Booker v. Old Dominion Land

Co., 188 Va. 143, 148, 49 S.E.2d 314, 317 (1948). The only

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evidence presented by the Barners regarding this issue was that

Governor Pollard supported a plan to run a sewer line through

Lot 8, the plan would not have worked without the sewer line in

that approximate location, and currently the sewer line can be

relocated on Lot 8 so as not to prevent the construction of a

single-family home upon the lot.

The neighboring landowners, however, presented sufficient

evidence to support the chancellor’s determination that the

purpose of the restrictive covenant was to maintain Lot 8 as an

open, green area in Pollard Park. This purpose is consistent

with the setback requirements and building restrictions in the

various deeds and the provisions that the ravine area be

maintained as a park. The evidence that Lot 8 was a natural

extension of the ravine prior to the construction of Hairpin

Road is also consistent with the determination that the

grantor’s intent was to maintain Lot 8 as an open, green area.

Finally, the chancellor’s view of Pollard Park clearly

established that the conditions in the neighborhood have not

changed so substantially that the purpose of the restrictive

covenant has been defeated. Indeed, the evidence shows that

Pollard Park remains substantially unchanged. Accordingly, we

hold that the chancellor’s determination that the restrictive

covenant on Lot 8 is enforceable by at least one of the

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neighboring landowners is supported by the evidence and not

plainly wrong.

Finally, we now address the question whether those

landowners who acquired their interests in lots in Pollard Park

through chains of title to conveyances from Governor Pollard

that pre-date the Pollard/Craighill deed may enforce the

restriction contained in that deed as an equitable servitude

benefiting their properties.

By definition, an equitable servitude can only arise when a

common grantor imposes a common restriction upon land developed

for sale in lots. Forster v. Hall, 265 Va. 293, 300, 576 S.E.2d

746, 749-50 (2003) (citing Duvall v. Ford Leasing Development

Corp., 220 Va. 36, 41, 255 S.E.2d 470, 472 (1979)). The burden

is on the party claiming the benefit of the equitable servitude

to show that a common restriction was intended. Minner v. City

of Lynchburg, 204 Va. 180, 188, 129 S.E.2d 673, 678 (1963).

The prohibition against erecting a “house, garage or

structure of any kind” is not a common restriction on the lots

in Pollard Park because only Lot 8 is restricted in that way.

Accordingly, we hold that the chancellor erred in determining

that this restriction contained in the Pollard/Craighill deed is

enforceable as an equitable servitude.

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 CONCLUSION

For these reasons, we will affirm the chancellor’s judgment

that Lot 8 is burdened by a restrictive covenant that is

enforceable by those neighboring landowners who acquired their

interests through original grantees in deeds executed after the

execution of the Pollard/Craighead deed. In this case, those

neighboring landowners are the Tracys, Juliens, and Fulmers. We

will reverse the chancellor’s judgment that the restrictive

covenant is enforceable by the other neighboring landowners as

an equitable servitude, and enter final judgment upholding the

permanent injunction issued against the Barners.

Affirmed in part,
reversed in part,
and final judgment.

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