dissenting.
Reduced to the essentials, this is a case in which the majority has redetermined the facts on appeal. In my opinion, the trial court applied proper standards to VHC’s burden of proof, correctly considered only relevant evidence that did not vary the terms of the deed, and properly decided that construction of facilities for the required purposes had not been “commenced” within the six-year period in question. Furthermore, I disagree with the majority’s conclusion that the repurchase option is a condition subsequent. See School Board v. Payne, 151 Va. 240, 144 S.E. 444 (1928).
The trial court found that last-minute construction of two concrete foundations and one steel tank on a small, inland segment of a 623-acre industrial waterfront site was “work done . . . admittedly for the purpose of getting something on the property before the critical date provided in the deed.” The chancellor ruled that this frantic exercise did not amount to “a commencement of construction” within the meaning of the clear terms of the instrument. There was credible, relevant, admissible evidence to support these conclusions of fact and they should not be cast aside on appeal.