County Bd. of Arlington County v. Brown

RUSSELL, J.,

dissenting.

In my view, Code § 15.1-262, by necessary implication, affords the County ample authority to convey a leasehold interest in lands which the County owns in fee simple. It provides: “The governing body of the county shall have power to sell . . . and convey the real property of the county . . . .” There is no limitation on this grant of power, and it therefore extends to the right to convey a fee simple estate.

An estate in fee simple is the largest estate in lands recognized by the law. It consists of the aggregate of all the rights, powers, privileges and immunities (sometimes called the “entire bundle of rights”) pertaining to the land. The grantor of such an estate can make no further disposition of the property, because he has already granted the whole and entire interest that it was possible for *348him to have, and consequently nothing remains in him. I Minor on Real Property § 145 (F. Ribble 2d ed. 1928). See also Carter v. Tyler, 5 Va. (1 Call) 165, 186 (1797).

The power to convey the entire bundle of rights includes, by necessary implication, the power to convey any lesser segment, or group of segments, of the bundle. One of the hallmarks of a fee simple estate is the unrestricted alienability of the bundle of rights of which it consists. See Ky. Dept. of Revenue v. Hobart Mfg. Co., 549 S.W.2d 297, 299 (Ky. 1977). Can it be seriously contended that a local governing body lacks the power to grant an easement over lands which the county owns in fee simple?

Because the power to convey the whole includes by necessary implication the power to convey the parts, the power to convey a leasehold is included within the power to convey a fee. Because the power to convey a fee has been expressly granted by the legislature to the County Board, it may exercise the power to convey a leasehold without offending Dillon’s Rule. That rule, to which we adhere, provides that local public bodies may exercise, in addition to those powers expressly conferred by the legislature, the further powers which arise by necessary implication from those expressly conferred. Commonwealth v. Arlington County Bd., 217 Va. 558, 572, 232 S.E.2d 30, 39 (1977).

Accordingly, I respectfully dissent from the conclusion reached with respect to the threshold issue which the majority deems dis-positive of the case and would proceed to a consideration of the constitutional questions raised by the County Manager.