Agape Motorcoach Retreat, LLC v. Glenda Brintle

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1740

AGAPE MOTORCOACH RETREAT, LLC; STEPHEN J. GREGSON, Trustee;
DEBRA E. GREGSON, Trustee,

Plaintiffs - Appellants,

v.

GLENDA BRINTLE, Trustees of the Thomas Y. Brintle 2006
Revocable Trust; THOMAS ALLEN BRINTLE, Trustees of the
Thomas Y. Brintle 2006 Revocable Trust; KAREN B. CARTER,
Trustees of the Thomas Y. Brintle 2006 Revocable Trust;
DAVID VELA, Regional Director for the National Park Service;
UNITED STATES OF AMERICA; TIMOTHY BRITT BOLEN,

Defendants - Appellees.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:10-cv-00369-JCT)

Argued: March 20, 2013 Decided: April 25, 2013

Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.

Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Niemeyer and Judge Motz joined.

ARGUED: Wells Huntington Byrnes, Sr., CLEMENT & WHEATLEY,
Danville, Virginia, for Appellants. Thomas Linn Eckert, OFFICE
OF THE UNITED STATES ATTORNEY, Roanoke, Virginia; Alan Kent
Caudell, Galax, Virginia, for Appellees. ON BRIEF: Timothy J.
Heaphy, United States Attorney, Roanoke, Virginia, for Appellees
United States of America and David Vela.

Unpublished opinions are not binding precedent in this circuit.

2
BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider the district court’s summary

judgment holding that the plaintiff, Agape Motorcoach Retreat,

LLC (Agape), does not have an easement across certain real

property owned by the defendants. In its complaint, Agape

argues primarily that it has an easement across property

acquired in 1938 by the Commonwealth of Virginia under its power

of eminent domain, which the Commonwealth conveyed to the United

States government for construction of the Blue Ridge Parkway.

Upon our review of Agape’s arguments, we conclude that the

district court did not err in awarding summary judgment in favor

of the defendants, because the Commonwealth acquired by

condemnation the entirety of the property at issue without

reservation of the alleged easement.

I.

A.

Agape owns a tract of about 20 acres (the Agape parcel) in

Carroll County, Virginia. On the eastern and southeastern

borders of the Agape parcel is a tract of land (the Brintle

parcel) owned by representatives of Thomas Y. Brintle’s estate

(collectively, Brintle). 1 Joining the southern boundary of the

1
The Brintle defendants include Glenda R. Brintle, Thomas
(Continued)
3
Agape parcel is a tract of land (the Bolen parcel) owned by

Timothy Britt Bolen (Bolen). On the southern and southeastern

borders of the Brintle parcel and the Bolen parcel lies the Blue

Ridge Parkway (the Parkway) 2 and adjacent land owned by the

federal government. Persons seeking direct access between the

Agape parcel and the Parkway must cross land owned by either

Bolen or Brintle, in addition to land owned by the federal

government.

The Agape parcel, the Bolen parcel, the Brintle parcel, and

the land at issue owned by the federal government, were

originally part of a larger tract of land owned by Marcus and

Myrtle Bolen (the Bolens). 3 In October 1937, the State Highway

Commissioner of Virginia (the Highway Commissioner) notified the

Bolens that the Commonwealth sought to acquire two parcels of

their property, totaling about 25 acres, for purposes of the

federal government’s construction of a segment of the Parkway.

Allen Brintle, and Karen B. Carter, each of whom are trustees of
the Thomas Y. Brintle 2006 Revocable Trust.
2
The Blue Ridge Parkway is a federal highway that connects
the Great Smoky Mountains National Park with the Shenandoah
National Park. See H.R. Con. Res. 294, 111th Cong. (2d Sess.
2010) (commemorating the 75th anniversary of the Blue Ridge
Parkway).
3
The remaining portions of this larger tract of land were
divided by deed in 1950 to the predecessors-in-title of Bolen,
Brintle, and Agape, respectively.

4
The Commonwealth sought to acquire the land in fee simple, and

the Highway Commissioner’s notice stated that the land would be

acquired

[t]ogether with all right and interest of the said M.
M. Bolen, Myrtle F. Bolen or others, their heirs or
assigns, to build, construct, maintain or use any
private drive or road on or over the above described
tracts or parcels (Parcel No. 1 and Parcel No. 2), or
other Parkway lands, without the consent and approval
of the State Highway Commissioner of Virginia or his
assigns.

The Highway Commissioner was unable to reach an agreement

with the Bolens concerning compensation for the two parcels, and

thereafter filed a petition (the condemnation petition) in the

Carroll County Circuit Court (the circuit court) to condemn that

property. The Highway Commissioner stated in the condemnation

petition that:

[T]he property and rights intended to be taken by
these proceedings is the fee simple title to the
strips or parcels of the defendants hereinabove
described, to-gether with all their right to access
roads, ways or drives over the above de-scribed tracts
or parcels of land, without the consent and approval
of the State Highway Commissioner or its assigns.

(Emphasis added).

The circuit court appointed five commissioners to determine

the value of the property described in the condemnation

petition. As related in their report, the commissioners “went

upon and viewed the lands described in the petition.” (Emphasis

added). The commissioners concluded that $1,260 would be “just

5
compensation for the fee simple title to the said lands

described in the petition filed in said case,” and that $140

would be an appropriate award “for the damage done to the

adjacent property of the owner” of that land. (Emphasis added).

Accordingly, the Commonwealth deposited $1,400 with the clerk of

the circuit court, representing the total valuation of the land

and the damage to the residue, as determined by the

commissioners.

The Bolens filed exceptions to the commissioners’ report,

in which they contended that the commissioners’ valuation of the

land was “unfair, unjust, inadequate, and unreasonable.”

However, the Bolens did not claim entitlement to an easement

across the property described in the condemnation petition.

After reviewing the Bolens’ exceptions, the circuit court

appointed a second set of commissioners to determine the value

of the property subject to the condemnation petition. This

second set of commissioners also viewed “the lands described in

the petition,” and concluded that $1,750 would be “just

compensation for the fee simple title to the said lands

described in the petition,” and further determined that $575

would be an appropriate award for the damage to the residue.

(Emphasis added). The Bolens did not file exceptions to this

second commissioners’ report.

6
 Thereafter, the Commonwealth deposited $925 with the clerk

of the circuit court, the amount representing the increased

compensation due to the Bolens as determined in the second

commissioners’ report. On May 26, 1938, the clerk of the

circuit court deposited into the Bolens’ bank account the total

amount of $2,325 paid by the Commonwealth.

Upon reviewing the second commissioners’ report, the

circuit court entered an order (the circuit court’s order),

stating that the court would “approve, ratify and affirm” that

report “in all respects.” The order “confirm[ed]” to the

Commonwealth the “fee simple title” to property described in the

condemnation petition, “free of all liens and encumberances

[sic].”

The circuit court’s order also contained a verbatim

description of the two parcels acquired by the Commonwealth from

the Bolens, which included the following language:

Together with all right and interest of the said M. M.
Bolen, and Myrtle F. Bolen or others, their heirs or
assigns, to build, construct, maintain or use any
private drive or road on or over the above described
tracts or parcels (Parcel No. 1 and Parcel No. 2), or
other Parkway lands, without the approval and consent
of the State Highway Commissioner of Virginia or his
assigns.

In the margin of the court’s order was a handwritten,

undated, anonymous notation. This notation, which was connected

7
by a handwritten “arrow” drawn from the above typewritten

property description, contained the following language:

except one (1) access road way ten (10) feet wide with
two (2) foot shoulders on the side at or near Station
358[.]

Agape’s present claim of entitlement to an easement across land

owned by the federal government is based on the above

handwritten notation. 4

The property described in the condemnation petition later

was conveyed by general warranty deed from the Commonwealth to

the federal government. 5 That deed also conveyed additional

parcels of land owned or acquired by the Commonwealth. In the

deed, the Commonwealth reserved several easements to and across

the Parkway, but the easement claimed by Agape in this

proceeding was not among them. Several predecessors in the

Agape, Brintle, and Bolen chains of title enjoyed access across

the conveyed lands, but that access was obtained from the

federal government through special use permits. The most recent

such special use permit lapsed in June 1996.

4
The circuit court’s order was entered into the Chancery
Order Book and the Deed Book, including the unsigned, undated,
handwritten notation appearing in the margin of the court’s
order. The court’s order, the Order Book, and the Deed Book are
the only three documents describing Agape’s alleged easement
providing access to the Parkway.
5
The deed was drafted in May 1938, and was affixed with a
notary’s seal on June 16, 1938.

8
 B.

Agape filed its complaint under the Quiet Title Act, 28

U.S.C. 2409a 6 against Brintle, Bolen, and the United States

(collectively, the defendants), seeking a declaration that Agape

has easements across the respective lands owned by the

defendants. Upon completion of discovery, the parties filed

cross-motions for summary judgment.

The district court granted the defendants’ motions for

summary judgment, and denied Agape’s motion. The court focused

its analysis on the federal government’s property, observing

that under Virginia law, easements over the Brintle and Bolen

parcels would be extinguished absent an easement across the

government’s land allowing access to the Parkway from the Agape

parcel.

Applying provisions of the Code of Virginia of 1930, the

district court held that the Commonwealth acquired defeasible

title to the subject property upon paying the amount of

compensation recommended in the second commissioners’ report,

and that the circuit court lacked authority under Virginia law

to modify the description of the property set forth in the

6
The Quiet Title Act is “the exclusive means by which
adverse claimants [may] challenge the United States’ title to
real property.” Block v. North Dakota ex rel. Bd. of Univ. &
School Lands, 461 U.S. 273, 286 (1983).

9
condemnation petition. The district court therefore concluded

that because the property described in the condemnation petition

did not include the easement claimed by Agape, the Commonwealth

obtained title to the property free of an easement reserved to

the Bolens. The district court held that, accordingly, the

federal government acquired fee simple title to the property

described in the condemnation petition, without the claimed

easement, when the Commonwealth conveyed the land to the federal

government by general warranty deed.

After rejecting Agape’s claim of an easement across the

federal property, the district court did not address the issue

whether Agape otherwise would have had easements across the

Bolen parcel and the Brintle parcel. The district court entered

an order awarding judgment in the defendants’ favor, and Agape

timely filed a notice of appeal.

II.

We review de novo the district court’s award of summary

judgment in favor of the defendants, viewing the facts, and all

reasonable inferences that may be drawn from those facts, in the

light most favorable to the plaintiff. See Bonds v. Leavitt,

629 F.3d 369, 380 (4th Cir. 2011); S.C. Green Party v. S.C.

State Election Comm’n, 612 F.3d 752, 755 (4th Cir. 2010).

Summary judgment is appropriate only when “there is no genuine

10
dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Merritt v. Old

Dominion Freight Line, Inc., 601 F.3d 289, 295 (4th Cir. 2010).

A.

In the present case, Agape contends that the district court

erred in concluding that Agape did not obtain an easement by

express reservation. Restating its arguments presented to the

district court, Agape primarily relies on the handwritten

notation in the margin of the circuit court’s order to establish

that the order expressly reserved the claimed easement to the

Bolens and their successors in title. Agape also asserts that

the district court’s decision constituted an impermissible

collateral attack on the circuit court’s 1938 order. Finally,

Agape maintains that it has easements across the Brintle parcel

and the Bolen parcel that are independent from property owned by

the federal government. We disagree with Agape’s arguments.

A party claiming an easement bears the burden of

establishing entitlement to the easement claimed. Mulford v.

Walnut Hill Farm Grp., LLC, 712 S.E.2d 468, 476 (Va. 2011). An

easement may exist as a result of an “express grant or

reservation, by implication, or by other means.” Id. (quoting

Brown v. Haley, 355 S.E.2d 563, 568 (Va. 1987)).

11
 We first consider Agape’s primary argument that it has an

express easement over land owned by the federal government. 7

Agape’s argument rests on the premise that the circuit court

could alter the property description contained in the

condemnation petition.

In view of this contention, we begin our analysis by

emphasizing the fundamental principle that a sovereign has

absolute power to acquire private property required for a public

purpose, provided that just compensation is paid. See Georgia

v. City of Chattanooga, 264 U.S. 472, 480 (1924); see also

Secombe v. Milwaukee & St. Paul R.R. Co., 90 U.S. 108, 118

(1874) (“there is no limitation” upon the power of the sovereign

to take private property for public use if just compensation is

paid to the former owner). Accordingly, as the Supreme Court of

Virginia has stated, “[w]henever the public use of property

requires it, the private rights of property must yield to this

7
We observe that the district court appropriately focused
its analysis on Agape’s claim of an easement across the federal
government’s land. Under Virginia law, a person claiming an
easement of ingress or egress over several parcels of land must
demonstrate a right of access allowing that person to reach his
or her ultimate destination. See Atkisson v. Wexford Assocs.,
493 S.E.2d 524, 528 (Va. 1997) (when any lot owner shows that an
express easement did not transverse his property, the claimed
easement fails because it would stop short of its ultimate
destination), abrogated on other grounds by Michael E. Siska
Revocable Trust v. Milestone Dev., LLC, 715 S.E.2d 21 (Va.
2011).

12
paramount right of sovereign power to take it for the public

use.” Fallsburg Power & Mfg. Co. v. Alexander, 43 S.E. 194, 196

(Va. 1903).

With this “paramount right” in mind, we turn to examine the

provisions of the Code of Virginia of 1930 that are at issue in

this case. Under former Virginia Code Section 1969j, the State

Highway Commissioner was assigned the power of eminent domain.

See Stewart v. Fugate, 187 S.E.2d 156, 159 (Va. 1972) (citing

Va. Code § 33.1-89, the analogous statute currently in effect,

and noting that this section assigns the power of eminent domain

for purposes of highway construction to the Virginia State

Highway Commissioner). Former Section 1969j required that the

Highway Commissioner file a condemnation petition in the circuit

court setting forth “with reasonable particularity a description

and designation of the interests, right and property intended to

be taken.” Former Va. Code § 1969j; see also Dillon v. Davis,

112 S.E.2d 137, 140 (Va. 1960) (discussing provision of the Code

of Virginia of 1950 requiring that the condemnation petition

must describe the property to be taken with sufficient

certainty). Former Section 1969j further authorized the

appointment of commissioners to determine the value of the land

to be taken, and, in particular, stated that:

[u]pon the return of the report of the commissioners
or viewers appointed in such proceedings the sum
ascertained thereby as compensation and damages, if

13
 any, to the property owners, may be paid to the person
or persons entitled thereto, or for them into court or
to the clerk thereof, upon which title to the property
and rights condemned shall vest in the Commonwealth of
Virginia in fee simple, or to such extent as may be
prayed for in [the] petition.

Id. (emphasis added); see also Prichard v. State Highway Comm’r,

188 S.E. 166, 220-21 (Va. 1936) (quoting Former Section 1969j).

Under this statutory framework, the Commonwealth’s

acquisition of title was subject to a limited right of appeal by

the property owner or the Commonwealth “on the question only of

damages or compensation.” Former Va. Code § 1969j; see also

State Highway Comm’r v. Kreger, 105 S.E. 217, 224 (Va. 1920)

(noting limited nature of the right of appeal). Thus, by

operation of former Section 1969j, the Commonwealth acquired

defeasible title to the property at issue at the time that the

Commonwealth remitted payment to the circuit court in the amount

first determined by the commissioners.

The Commonwealth, however, did not acquire indefeasible

title to the property until the circuit court entered an order

confirming the second commissioners’ report. Under former

Section 4369, “[u]pon such payment [of the sum determined to be

just compensation by the commissioners], either to the person

entitled thereto, or into court, and confirmation of the report,

the title to the part of the land and to the other property

taken for which such compensation is allowed, shall be

14
absolutely vested [in the Commonwealth].” (Emphasis added). We

thus agree with the district court’s conclusion that under

former Section 1969j, title to the property vested in the

Commonwealth as soon as compensation was paid to the clerk of

the circuit court, but that the title only became “absolutely

vested” or indefeasible upon the circuit court’s confirmation of

the commissioners’ report. 8

We find no merit in Agape’s contention that the circuit

court was free to modify the extent of the property taken before

indefeasible title vested in the Commonwealth. This contention

finds no support in Virginia’s condemnation statutes, and wholly

contravenes the statutory scheme for condemnation proceedings

established by the Virginia General Assembly.

Under the condemnation statutes in effect in 1938, it was

the Commonwealth’s right to take the property described in the

condemnation petition, and the circuit court’s role was limited

merely to confirming the taking and to approving or denying the

amount of compensation set by the commissioners. 9 See Former Va.

8
The government argues that the Commonwealth acquired
indefeasible fee simple title when it deposited with the circuit
court the sum established by the commissioners. We find no
merit in this argument, because it would render a nullity the
language in former Section 4369 concerning “confirmation of the
report.”
9
Condemnation proceedings in the Commonwealth are conducted
in a similar, although not identical, manner today as such
(Continued)
15
Code §§ 1969j, 4369. This narrow role of a circuit court in

condemnation proceedings long has been emphasized by the Supreme

Court of Virginia in its decisions discussing the near-

conclusiveness of the commissioners’ recommendations. See Brown

v. May, 117 S.E.2d 101, 106-07 (Va. 1960) (holding that the

report of the condemnation commissioners “is not to be disturbed

by the trial court” unless the report is based on erroneous

principles or includes a compensation award that is grossly

inadequate or excessive such as to evidence bias, prejudice, or

corruption); Richmond Traction Co. v. Murphy, 34 S.E. 982, 984

(Va. 1900) (holding that if the commissioners’ report does not

appear to be illegal or irregular on its face, the report “must

be affirmed and carried into effect” by the circuit court).

proceedings were conducted in the 1930s. Under the current
statutory framework, as consistent with the applicable law in
1938, “[t]he report of the body determining just compensation
may be confirmed or set aside forthwith by the court.” Va. Code
§ 25.1-233 (2011). The court’s powers to set aside the report
are generally confined to instances of “fraud, collusion,
corruption or improper conduct” in connection with the report.
See id. (“If the court be satisfied that no such fraud,
collusion, corruption or improper conduct entered into the
report of the body determining just compensation . . . the
report shall be confirmed.”); see also id. (court not required
to confirm report if “other cause exists that would justify
setting aside or modifying a jury verdict in civil actions”);
State Highway Comm’r v. Carter, 222 S.E.2d 776, 777-78 (Va.
1976) (trial court should set aside commissioners’ award if it
“bear[s] no reasonable relation” to the evidence or shows
prejudice or corruption on the part of the commissioners).

16
 Pursuant to former Section 4364, in a condemnation

proceeding, “[t]here shall be filed with such [condemnation]

petition a plat of the survey, with a profile showing the cuts

and fills, trestles and bridges, and a description of the land

or other property which, or an interest or estate in which, is

sought to be condemned.” Further, former Section 4368

delineated the commissioners’ duty to value the land, stating

that “[t]he commissioners, after viewing the property and land

which, or an interest or estate in which, is sought to be

condemned . . . shall ascertain what will be a just compensation

for the said property and land, or for such interest or estate

therein as is proposed to be taken.” (Emphasis added); see also

Va. Elec. & Power Co. v. Patterson, 132 S.E.2d 436, 439 (Va.

1963) (citing Section 25-17 of the Code of Virginia of 1950 for

the proposition that the commissioners determine just

compensation for property “proposed to be taken”).

In view of this statutory framework, the value set by the

commissioners in their report was dependent on the description

of the property set forth in the condemnation petition. Thus,

any purported reduction by the circuit court of the estate taken

necessarily would have affected the commissioners’ valuation of

the property. Under such circumstances, the court’s purported

modification of the estate taken, and “confirmation” of the

commissioners’ valuation of the property described in the

17
condemnation petition, would have effected an unauthorized de

novo valuation by the circuit court, a result not contemplated

by the statutory scheme. Accordingly, upon our consideration of

Virginia law in effect in 1938, we hold that the title that

vested in the Commonwealth was determined by the description of

the property in the condemnation petition, which did not include

the alleged easement claimed by Agape.

Our conclusion is not altered by Agape’s argument that the

district court’s decision constituted an impermissible

collateral attack on the circuit court’s 1938 order. A

collateral attack on a judgment is “an attempt to impeach the

judgment by matters [outside] the record . . . to avoid, defeat,

or evade it or deny its force and effect, in some incidental

proceeding not provided by law for the purpose of attacking it.”

Guinness, PLC v. Ward, 955 F.2d 875, 895 (4th Cir. 1992)

(citation omitted); see also Matthews v. Matthews, 675 S.E.2d

157, 159 (Va. 2009) (“A collateral attack is an attempt to

impeach a judgment in a proceeding not instituted for the

purpose of annulling or reviewing that judgment.”) (citation

omitted).

The district court’s decision did not constitute a

collateral attack on the circuit court’s judgment because, on

the face of the order and as provided by the Virginia Code, the

circuit court’s order confirmed condemnation of the property

18
described in the Commonwealth’s petition and the property’s

value as set by the second set of commissioners. Thus, the

district court’s decision, and our agreement with that decision,

does not “avoid, defeat, or evade” the circuit court’s order,

Guinness, 955 F.2d at 895, but rather constitutes an examination

of the scope of that order.

B.

Having concluded that Agape does not have an easement

across the land owned by the federal government, we next

consider whether the district court erred in dismissing Agape’s

claim with respect to the easements claimed over lands owned by

Brintle and Bolen. As an initial matter, we agree with the

district court’s conclusion that because Agape cannot establish

an express easement extending from its property to the Parkway,

any otherwise existing easements over intervening properties on

that claimed route are extinguished. Atkisson v. Wexford

Assocs., 493 S.E.2d 524, 528 (Va. 1997), abrogated on other

grounds by Michael E. Siska Revocable Trust v. Milestone Dev.,

LLC, 715 S.E.2d 21 (Va. 2011).

For the first time on appeal, however, Agape claims a

separate easement route across Brintle’s and Bolen’s properties

that is not dependent upon an easement across the federal land.

We do not consider this new claim, because Agape’s amended

complaint alleged an easement across the Brintle and Bolen

19
properties that “required adjudication” of Agape’s right to

cross property owned by the federal government. 10 Moreover, the

alternate route now claimed by Agape was not presented to the

district court for its consideration. Therefore, because Agape

did not allege in the district court an alternate route across

the Brintle and Bolen parcels that does not cross federal

property, we will not consider Agape’s purported alternate route

for the first time on appeal. See Helton v. AT&T Inc., 709 F.3d

343, 360 (4th Cir. 2013) (issues raised for first time on appeal

generally will not be considered).

III.

In sum, we hold that the district court did not err in

concluding that the Commonwealth acquired all the property

described in the condemnation petition, without reservation of

the alleged easement, because the description of the property in

the petition and in the commissioners’ report did not reference

such an easement. We further hold that the district court’s

decision, and our construction of the circuit court’s 1938

10
We further observe that Agape does not address in its
reply brief Brintle and Bolen’s assertion that the alternate
route now claimed on appeal was not raised in the district
court.

20
order, does not constitute a collateral attack on that order.

Accordingly, we affirm the district court’s judgment.

AFFIRMED

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