Brown v. Moore

PRESENT: All the Justices

JAMES A. BROWN, ET AL.

v. Record No. 971587 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 17, 1998
FRENCH H. MOORE, JR., ET AL.

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles B. Flannagan, II, Judge

In this appeal, we consider whether the trial court erred

in ruling that a certain “strip” of real property was not a

public way but was acquired by an adjoining landowner through

adverse possession.

The disputed property is about 8 feet wide and is located

in the Town of Abingdon. 1 The property lies along the northern

boundary of residential property owned by French H. Moore, Jr.,

and Mary Ann Garrett Moore (Moore), and along the southern

boundary of a farm owned by James A. and Bliss M. Brown (Brown). 2

The disputed property is located to the east of Henry

Street and to the west of Crestview Drive. Each of these Town

streets leads to the top of a hill and ends in a cul-de-sac.

1
The exact width of the disputed property is not clear from
the record. At various times it is described as 7½ feet wide,
8.34 feet wide, and 8½ feet wide. The exact measurement is not
required for purposes of deciding this appeal.
2
Although the property owned by Moore is located within
Town boundaries, only the southern portion of the Brown farm is
located within Town limits.
The disputed property constitutes a portion of the land lying

between the two cul-de-sacs.

In March 1989, Brown filed an amended motion for

declaratory judgment against Moore, seeking a declaration that

the disputed property is a public right of way. In the

alternative, Brown asked that if the court determined the

disputed property is not publicly owned, the court declare that

Brown has a private right of way over the property, and that

Moore has failed to establish adverse possession of the

property.

The following evidence was presented in a bench trial.

Prior to 1872, Edward M. Campbell owned certain real property,

including the disputed property. In 1872, Campbell conveyed all

but an approximately 18-foot-wide “strip” of his property (18-

foot strip) to Washington McClanahan. This 18-foot strip was

located along the entire northern border of Campbell’s property.

The disputed property lies within a portion of the 18-foot

strip.

Since 1872, deeds conveying property surrounding the

disputed property reference the 18-foot strip, using various

terms including, “lane,” “public pass way,” “right-of-way,” and

“alley.” Also, a Town zoning map, a street plan, a “corporate

boundary” plat, and a 1948 annexation order refer to Henry

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Street in the general area in which the disputed property is

located.

In June 1964, French H. Moore, Jr., James H. Bowden, Jr.,

and Paul F. Wagner acquired three contiguous tracts of land,

including one tract from James and Dorothy Spencer (Spencer

tract). The deed conveying the Spencer tract to Moore, Bowden,

and Wagner (Spencer deed) provides that the property being

conveyed is bordered on the north by an “alley.” The referenced

“alley” is in the same location as the 18-foot strip. The

Spencer deed describes the northern boundary of the Spencer

tract as extending 199.5 feet from its southern line.

Moore, Bowden, and Wagner later decided to divide the land

they had acquired. To provide access to each lot, they sought

to extend Crestview Drive in a westerly direction over a portion

of the 18-foot strip. To accomplish this purpose, Moore,

Bowden, and Wagner submitted a subdivision plat to the Abingdon

Town Council for approval.

Moore requested approval of the subdivision plat at the

January 3, 1966 regular meeting of the Abingdon Town Council.

The minutes of this meeting reflect that the surveyor who

drafted the subdivision plat presented it to the Town Council

“with [a] proposal for closing a part of the alley referred to

in the request, and advised [the Council] regarding reference to

the alley as a lane.” The minutes further state that “[s]ince

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it was not determined if this were an alley and if the Town had

any interest therein, [the council referred this issue] to the

Town Attorney for advice as to what the Town can do, and for his

recommendation on the matter.”

Although the request for approval of the subdivision plat

was discussed two weeks later at the January 17, 1966 Council

session, the minutes of the meeting do not refer to any

discussion of the “alley” or “lane.” Instead, the minutes

reflect that the Town Council informed Moore that a 50-foot

right of way was required before the Council would approve the

extension of Crestview Drive. To comply with this requirement,

Moore agreed to provide the Town with a 17-foot parcel from the

northern border of the Spencer tract. Landowners on the

northern side of Crestview Drive also provided a 17-foot parcel

from the border of their property.

There also was no discussion of the 18-foot strip in

February 1966, when the Town Council approved the subdivision

plat which provided for the extension of Crestview Drive ending

in a cul-de-sac at the northeast corner of the Spencer tract.

This cul-de-sac ended just short of the eastern edge of the

disputed property. The subdivision plat was recorded in October

1967, and Crestview Drive later was extended in accordance with

the plat specifications.

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 Moore, Bowden, and Wagner then executed a partition deed in

December 1967, which, among other things, conveyed the Spencer

tract to Moore. The partition deed makes no reference to an

“alley.” However, the metes and bounds description in the

partition deed depicts the northern boundary line of the Spencer

tract as extending 207.84 feet from the southern border, a

distance of 8.34 feet more than the 199.5 feet set forth in the

Spencer deed. This additional 8.34-foot portion of land

comprises the disputed property.

Shortly after the subdivision plat was approved in 1966,

Moore graded his property in preparation for the construction of

a house. As a result of the grading, the elevation of the

disputed property was lowered 13 feet. Moore also planted trees

on the disputed property.

Brown obtained his property by deed dated September 20,

1975. The plat attached to the deed shows a right of way which

borders the southern boundary of the property and connects Henry

Street to Crestview Drive. The right of way shown on this plat

is in the same location as the 18-foot strip and includes the

disputed property. In 1986, when Brown attempted to improve the

disputed property to create another access to his property,

Moore objected and Brown filed this action.

At trial, Brown presented testimony from several witnesses,

including Barry L. Proctor, an attorney who concentrated his

5
practice in real estate title examinations. Proctor testified

that the disputed property was dedicated for public use when the

Campbell conveyance excluded the 18-foot strip and that, in his

opinion, the Town “considered itself to have a public street in

this vicinity.” Roy K. Balthis, a certified land surveyor,

identified the above-mentioned discrepancies between the Spencer

deed and the partition deed and noted the references in various

deeds to the 18-foot strip.

Elizabeth S. Jones, an attorney, testified that she found

no documents of record indicating that the Town had accepted an

offer of dedication of the disputed property. Jones stated

that, in her opinion, there is not a public right of way over

the disputed property. Herman McCormick, Jr., superintendent of

public works for the Town from 1963 to 1990, whose

responsibilities included supervision of street maintenance,

garbage collection, snow removal, and traffic signs, testified

that the Town never maintained the portion of land between the

cul-de-sac at the end of Henry Street and the cul-de-sac at the

end of Crestview Drive.

The trial court held that Brown failed to establish that

the disputed property was dedicated as a public right of way.

The court also held that, even if Brown once had a private right

of way over the disputed property, this right was extinguished

by Moore’s adverse possession of the property.

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 On appeal, Brown first argues that the disputed property

was dedicated to public use by implication. In support of this

argument, Brown relies on Campbell’s 1872 conveyance to

McClanahan of all but 18 feet of Campbell’s property, and on the

references in later deeds to a “lane,” a “public pass way,” a

“right-of-way,” and an “alley”.

Brown also relies on the separate doctrines of implied

acceptance and partial acceptance. Under the doctrine of

implied acceptance, Brown contends that the Town’s actions

regarding the disputed property constituted an implied

acceptance of the purported offer of dedication. Brown asserts

that the Town considered at least a portion of the 18-foot strip

to be a public way, since only 34 additional feet were required

from the adjoining landowners to create the 50-foot right of way

for the extension of Crestview Drive. Brown also argues that,

by referring to the 18-foot strip on a Town map, a “corporate

limit” plat, a street plan, and in the 1948 annexation order,

the Town accepted the purported offer of dedication. Under the

doctrine of partial acceptance, Brown argues that the Town’s

acceptance of a portion of the 18-foot strip for the extension

of Crestview Drive constituted an acceptance of the entire 18-

foot strip, including the disputed property.

Lastly, Brown contends that he obtained a private right of

way over the disputed property because a right of way was shown

7
on the plat attached to his deed. He argues that the evidence

does not support the trial court’s ruling that Moore acquired

the disputed property through adverse possession.

In response, Moore contends that even if the disputed

property was dedicated for public use, the Town did not accept

the offer of dedication. Moore also argues that any private

right Brown may have had regarding the disputed property has

been superceded by Moore’s adverse possession of that property.

We agree with Moore.

We recently stated the following principles relevant to our

disposition of this appeal:

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.

McNew v. McCoy, 251 Va. 297, 299, 467 S.E.2d 477, 478 (1996)

(citing Brown v. Tazwell County Water & Sewerage Auth., 226 Va.

125, 129-30, 306 S.E.2d 889, 891 (1983)); see also Bradford v.

Nature Conservancy, 224 Va. 181, 198-99, 294 S.E.2d 866, 875

(1982). Because a dedication imposes the burden of maintenance

and potential tort liability on the public, a dedication is not

completed until the public or competent public authority

manifests an intent to accept the offer. Ocean Island Inn, Inc.

8
v. City of Virginia Beach, 216 Va. 474, 477, 220 S.E.2d 247, 250

(1975).

The acceptance of an offer of dedication by the governing

authority may 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.”

McNew, 251 Va. at 299-300, 467 S.E.2d at 478. The present

record contains no evidence of a formal or express acceptance by

the Town of the disputed property. Therefore, we consider

whether the Town impliedly accepted the property by exercising

dominion over the property or from long continued public use of

requisite character.

In determining whether an offer of dedication has been

impliedly accepted, courts have given consideration to such

governmental actions as the installation of public utility lines

in or across a street, the opening and paving of a street, and

the repair of a street. See Ocean Island Inn, 216 Va. at 477,

220 S.E.2d at 250-51. These actions constitute affirmative

conduct showing an implied acceptance by the governmental body.

The record before us does not contain any such evidence of

affirmative conduct by the Town regarding the disputed property.

The record also provides no evidence that the Town

exercised dominion over the disputed property by performing any

9
maintenance on the property. In fact, Herman McCormick’s

testimony provided contrary evidence that the Town did not

maintain the land between the two cul-de-sacs from 1963 through

1990, the period McCormick served as the Town’s superintendent

of public works.

We disagree with Brown’s contention that the Town exercised

dominion over the disputed property by showing a portion of the

18-foot strip, including the disputed property, on various maps

and in the annexation order. These notations reflect only the

physical location of the 18-foot strip and are not evidence of

an assumption by the Town of any duty to maintain the property.

The contrary conclusion urged by Brown is untenable because it

would require the Town to maintain any road or way appearing on

any Town document, without regard to whether the Town had

engaged in affirmative conduct manifesting an implied acceptance

of that particular road or way.

The evidence also was insufficient, as a matter of law, to

establish implied acceptance of the disputed property by public

use of requisite character. This principle of implied

acceptance is applicable when the public has made such long use

of property offered for dedication as to render its reclamation

unjust and improper. See Body v. Skeen, 208 Va. 749, 752, 160

S.E.2d 751, 753-54 (1968); City of Norfolk v. Meredith, 204 Va.

10
485, 491, 132 S.E.2d 431, 436 (1963); Buntin v. Danville, 93 Va.

200, 204-05, 24 S.E. 830, 830-31 (1896).

James Brown testified that when he purchased his farm in

1975, a “roadbed” was visible on the disputed property but the

property was “grown up in briars and brush.” He also stated

that in 1975, the disputed property was passable by means of a

four-wheel-drive vehicle. The evidence also showed that some

people crossed over the disputed property in traveling between

Henry Street and Crestview Drive. However, the evidence does

not show the duration of such usage or its frequency over any

period of time. Thus, while the record indicates that at some

time in the past the disputed property was used as a passageway,

the evidence of this use is insufficient to demonstrate “long

continued public use[] of requisite character.” 3 See McNew, 251

Va. at 299-300, 467 S.E.2d at 478; Body, 208 Va. at 752, 160

S.E.2d at 753-54; Meredith, 204 Va. at 491, 132 S.E.2d at 436;

Buntin, 93 Va. at 204-05, 24 S.E. at 830-31.

Under the doctrine of partial acceptance, however, Brown

argues that the Town’s approval of the subdivision plat for the

extension of Crestview Drive manifested its acceptance of at

3
We also find no merit in Brown’s contention that, in 1966,
Moore “admitted” that the disputed property was part of a public
right of way. A statement by a landowner cannot create an
implied acceptance by a local governing body, and Brown had the
burden of proving such acceptance irrespective of any statement
by Moore.

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least a portion of the 18-foot strip. Brown contends that,

without a portion of that strip, the additional 17 feet from the

landowners on the north and south of Crestview Drive would have

been insufficient to create a 50-foot right of way for the

extension of Crestview Drive. Brown concedes that the disputed

property is not located within the particular portion of the 18-

foot strip that the Town accepted. However, Brown argues that

in accepting a portion of the 18-foot strip, the Town has

accepted the entire 18-foot strip.

This argument is without merit. We have limited

application of the doctrine of partial acceptance to instances

in which “a governing body has accepted part of the streets

appearing on a recorded plat and no ‘intention to limit the

acceptance’ is shown.” Ocean Island Inn, 216 Va. at 479, 220

S.E.2d at 252; see Hurd v. Watkins, 238 Va. 643, 651-52, 385

S.E.2d 878, 883 (1989). “[S]uch 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.”

Ocean Island Inn, 216 Va. at 479, 220 S.E.2d at 252. Since the

disputed property does not appear on a recorded subdivision plat

which depicts a group of streets, the doctrine of partial

acceptance is inapplicable.

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 We disagree with Brown’s contention that a different result

is required based on the minutes of a January 1994 regular

meeting of the Town Council. These minutes contain a statement

that the Council construes its act of approving the subdivision

plat in 1966 as an “official ruling” closing Henry Street.

Brown contends that this statement in the minutes demonstrates

that the Town previously accepted the offer of dedication of the

18-foot strip. Such a statement, made 28 years after the

described action, is of no probative value on this issue. 4

We also conclude that the trial court was not plainly wrong

in ruling that any claim by Brown to a private right of way over

the disputed property has been extinguished by Moore’s adverse

possession of the disputed property. “To establish title to

real property by adverse possession, a claimant must prove

actual, hostile, exclusive, visible, and continuous possession,

under a claim of right, for the statutory period of 15 years.”

Hollander v. World Mission Church, 255 Va. 440, 442, ___ S.E.2d

___, ___ (1998) (quoting Calhoun v. Woods, 246 Va. 41, 43, 431

S.E.2d 285, 286-87 (1993)). These elements must be proved by

4
We need not address Brown’s argument that the Town did not
properly close the public way, and that the Town’s attempt to
close Henry Street “violates public policy against sanctioning
and perpetuating racially segregated residential communities.”
These issues are moot, in light of our ruling that the Town did
not accept the purported offer of dedication.

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clear and convincing evidence. Calhoun at 43, 431 S.E.2d at

287.

Brown contends that Moore failed to meet his burden of

proving adverse possession because Moore occupied the disputed

property under the mistaken belief that it belonged to him under

the terms of the partition deed and subdivision plat. This

“mistake,” according to Brown, defeats Moore’s claim of adverse

possession.

We agree with the principle that one who possesses

another’s land under a mistake regarding the boundaries of the

property and does not intend to claim land beyond the “true”

property line, cannot adversely hold the land in question. See

Hollander, 255 Va. at 443, ___ S.E.2d at ___; Christian v.

Bulbeck, 120 Va. 74, 102-03, 90 S.E. 661, 670 (1916). However,

[w]hether the positive and definite intention to claim as
one’s own the land up to a particular and definite line on
the ground existed is the practical test . . . . The
collateral question whether the possessor would have
claimed title, claimed the land as his own had he believed
the land involved did not belong to him, but to another,
that is, had he not been mistaken as to the true boundary
line called for in his chain of title, is not the proximate
but an antecedent question, which is irrelevant and serves
only to confuse ideas.

Hollander, 255 Va. at 443, ___ S.E.2d at ___ (quoting Christian,

120 Va. at 111, 90 S.E. at 672) (emphasis deleted).

In Hollander, a landowner occupied disputed land under the

mistaken belief that it belonged to her under the terms of a

14
deed. The evidence indicated that the landowner performed

maintenance and upkeep on the disputed land for more than 15

years. We held that the landowner possessed the property with

adverse or hostile intent because her claim was not based solely

on the deed description, but also on her belief that the

property belonged to her. We noted that this belief was

evidenced by the landowner’s maintenance and upkeep performed on

the disputed land. Hollander, 255 Va. at 443, ___ S.E.2d at

___.

Similarly, although the Moores may have believed that the

disputed property belonged to them under the terms of the

partition deed, the testimony of French Moore was clear that he

intended to claim the disputed property “against anybody.”

Moreover, this belief was manifested by Moore’s acts of

excavating and planting trees on the disputed property.

The evidence also supports the trial court’s ruling that

Moore met his burden of proving the other elements of adverse

possession by clear and convincing evidence. As stated above,

soon after the subdivision plat was approved in 1966 and before

his home was completed in 1968, Moore excavated his property and

lowered the level of the disputed property by about 13 feet.

Brown acknowledged that he could not drive a vehicle on the

“actual alley, because it had been disturbed by the grading

there and was too steep to drive on.” Further, the evidence is

15
uncontradicted that shortly after the subdivision plat was

approved, Moore planted trees on the disputed property. Thus,

the evidence showed that Moore proved actual, hostile,

exclusive, visible, and continuous possession, under a claim of

right, for at least 15 years. See Hollander, 255 Va. at 442,

___ S.E.2d at ___; Calhoun, 246 Va. at 43, 431 S.E.2d at 286-87.

For these reasons, we will affirm the trial court’s

judgment.

Affirmed.

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