Present: All the Justices
ARTHUR B. McNEW
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 951237 March 1, 1996
TIM McCOY, ET AL.
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
In this appeal, we consider whether an access road was
dedicated as a public way for the benefit of landowners adjacent
to that road.
Tim and Joyce McCoy own a tract of land which formerly
consisted of six lots in a subdivision, since vacated, known as
the J. B. Hawley Subdivision, located near the village of Falls
Mill in Tazewell County. The McCoys claim an interest in a
gravel access road adjacent to the western boundary of their
property. This road extends across a farm owned in part by
Arthur B. McNew.
The plat of subdivision for the J. B. Hawley Subdivision was
recorded in November 1961, before Tazewell County's Board of
Supervisors had enacted a subdivision ordinance. That plat shows
a road in the same location as the access road at issue in this
appeal. In September 1961, Ruth T. Vickers and Roy O. Vickers,
husband and wife who were the McCoys' predecessors in title,
acquired the former subdivision.
In 1986, the Tazewell County Board of Supervisors vacated
the plat of subdivision. Ruth Vickers had requested the vacation
of the plat because an "unopened ten (10) foot wide street as
shown on said plat encroached upon the porch and possibly a
corner of [her] dwelling house."
A dispute ensued between the McCoys and McNew when McNew
erected a fence along the eastern boundary of the 16-foot access
road to prevent the McCoys from using the road. The McCoys filed
their bill of complaint alleging, inter alia, that they are
entitled to use the road because it is a publicly dedicated road
or, alternatively, that they had acquired property rights in the
road by prescription.
Subsequently, the McCoys filed a motion for summary
judgment, and McNew filed a cross-motion for summary judgment.
The trial court granted the McCoys' motion for summary judgment,
holding that the gravel road was dedicated at the time the
subdivision plat was recorded and that such dedication was for
the benefit of the owners of the lots shown on that plat. The
court entered a judgment which included certain injunctive relief
in favor of the McCoys. We awarded McNew an appeal.
McNew argues that the trial court erred in holding that the
road, which is located on his property, has been dedicated as a
public way for the benefit of owners of the adjoining property.
McNew asserts that the McCoys failed to prove there was a
dedication and acceptance of the access road for public use by
Tazewell County. The McCoys assert that Tazewell County accepted
the dedication of the platted access road. We disagree with the
McCoys.
We recently stated the applicable principles which control
our resolution of this appeal:
Dedication, at common law, was a grant to the
public, by a landowner, of a limited right of user in
his land. No writing or other special form of
conveyance was required; unequivocable evidence of an
intention to dedicate was sufficient. Until the
dedication was accepted by the public, it was a mere
offer to dedicate, no matter how finally expressed.
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. 2
Minor on Real Property 1696-1702 (F. Ribble 2d ed.
1928). See also Bradford v. Nature Conservancy, 224
Va. 181, 198-99, 294 S.E.2d 866, 875 (1982).
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 user of requisite character.
Brown v. Tazewell County Water and Sewerage Authority, 226 Va.
125, 129-30, 306 S.E.2d 889, 891 (1983). Applying these
principles, we hold that the McCoys do not have a right to use
the access road because there is no evidence in this record that
Tazewell County ever accepted the dedication. The record is
devoid of any evidence: (1) of a formal and express acceptance
by the County; (2) that the County exercised dominion of the way
or; (3) that there has been long continued public user of the
way.
We reject the McCoys' assertion that Tazewell County
impliedly accepted the access road when it vacated the
subdivision plat in 1986 at Ruth Vickers' request. The County's
resolution vacating the subdivision plat was without legal
efficacy because the County had neither accepted the dedication
nor acquired any other rights in the access road and, thus, the
County had acquired no property rights that could be vacated.
Furthermore, we recently observed that "the doctrine of implied
acceptance only applies in urban areas. '[A] formal acceptance
or express assertion of dominion over the road by public
authority is required before dedication of a rural road is
complete.'" E.S. Chappell & Son, Inc. v. Brooks, 248 Va. 571,
574, 450 S.E.2d 156, 158 (1994) (quoting Burks Bros. of Virginia,
Inc. v. Jones, 232 Va. 238, 248, 349 S.E.2d 134, 141 (1986)).
The McCoys argued at the bar of this Court that in the event
the trial court's judgment is reversed, they are entitled to a
remand of this proceeding so that they can pursue their claim
that they acquired rights in the road by prescription. We
disagree. The trial court did not rule upon this claim, and the
McCoys did not assign cross-error to the trial court's failure to
do so. See Loving v. Hayden, 245 Va. 441, 445, 429 S.E.2d 8, 11
(1993). Accordingly, we will reverse the judgment of the trial
court and enter final judgment here on behalf of McNew.
Reversed and final judgment.