Jenkins v. Bay House Associates, L.P.

PRESENT:   All the Justices

WILLIAM P. JENKINS, SR., ET AL.

v.   Record No. 021993  OPINION BY JUSTICE BARBARA MILANO KEENAN
                                      June 6, 2003
BAY HOUSE ASSOCIATES, L.P.

           FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY
                   Harry T. Taliaferro, III, Judge


      This appeal involves a challenge to a decree in which the

chancellor held that a plaintiff, who owns property lying

beneath a pond opening to the Chesapeake Bay, also owns the

waters of the pond.   The chancellor enjoined certain owners of

land abutting the pond from trespassing on the pond's waters and

from placing piers or other structures reaching into the water.

The dispositive issue before us is whether this holding and the

award of injunctive relief were permitted under the allegations

and prayers for relief in the plaintiff's pleadings.

      We state the evidence in the light most favorable to the

plaintiff, Bay House Associates, L.P. (Bay House), the

prevailing party in the trial court.    City of Richmond v. Holt,

264 Va. 101, 103, 563 S.E.2d 690, 691 (2002); Tashman v. Gibbs,

263 Va. 65, 68, 556 S.E.2d 772, 774 (2002).   In April 1998, Bay

House acquired by deed a 78.5-acre tract of land submerged

beneath the waters of Gaskins Pond, a naturally occurring "salt

pond" in Northumberland County.
     Bay House's predecessors in title acquired the submerged

land by deed from Claude A. Swanson, in his capacity as Governor

of the Commonwealth of Virginia, in February 1909.   At that

time, the pond was completely separated from the waters of the

Chesapeake Bay by a small strip of land, or isthmus, on the

pond's eastern border.   However, in recent years, a narrow

"opening" in the isthmus has created an "outlet" connecting the

waters of the pond to the waters of the Chesapeake Bay.

     Since this opening was created, several owners of land

adjoining the pond have constructed piers extending from their

property into the pond that are affixed to Bay House's

underlying land.   In August 1998, George B. Little, a partner of

Bay House, sent a letter to one of these adjoining landowners,

William P. Jenkins, Sr., alleging that Jenkins had trespassed on

Bay House's property by erecting a pier that was secured to the

pond bed.   In the letter, Little requested that Jenkins "remove

all but the floating portion of [his] pier immediately."   Little

informed Jenkins that if he did not comply with Little's

request, Little would seek an injunction prohibiting him from

trespassing "on any portion of the bottom of Gaskins Pond."

Jenkins did not comply with Little's demand.

     In December 1998, Bay House's counsel sent letters to four

other property owners whose land abuts the pond, advising them

that Bay House owned "the land beneath Gaskins Pond" and that


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Bay House had "not given permission to anyone to construct a

dock on its property."   Bay House informed the property owners

that it would request injunctive relief if they did not remove

their docks from Bay House's land by a certain date.   None of

these property owners complied with Bay House's request.

     Bay House filed a bill of complaint in the circuit court

against Jenkins and the four other property owners

(collectively, the defendants).   The bill of complaint alleged,

among other things, that Bay House owned the "submerged land

lying beneath the waters of Gaskins Pond" and that the

defendants' failure to remove their docks from Bay House's

"land" constituted acts of trespass.   Bay House requested that

the chancellor order the defendants to remove their docks and

enjoin the defendants "from trespassing on the land of Bay House

by constructing or causing to be constructed, or by placing or

causing to be placed any thing on the land of Bay House."    Bay

House also asked that the chancellor grant "such other, further

and general relief as the nature of the case may warrant or to

equity shall seem meet."

     At an ore tenus hearing, Bay House presented expert

testimony from three witnesses who addressed various issues,

including the question whether the pond had become a navigable

body of water that could be traversed by boats entering and

exiting the pond's opening to the Bay.   The defendants did not


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present any evidence to the chancellor.    However, they argued,

among other things, that they had riparian rights to use the

waters and pond bed once the pond became open to the Bay.

        The chancellor held that Bay House has "a fee simple

ownership in the bed and waters of Gaskins Pond," and that the

water opening between the pond and the Bay "did not in any way

diminish" Bay House's ownership interest.    Further holding that

the defendants did not have any right to use the bed or waters

of the pond, the chancellor enjoined the defendants from

"trespasses upon the bed and waters of Gaskins Pond" and

directed them to disassemble and remove their piers from the

pond.

        In their appeal, the defendants do not challenge the

portion of the chancellor's decree holding that Bay House owns

the land beneath the pond and is entitled to an injunction

prohibiting the defendants from trespassing on Bay House's land.

Instead, the defendants argue that the chancellor erred in

awarding Bay House relief not requested in its pleadings by

holding that Bay House owns the pond's waters and by enjoining

the defendants from constructing or retaining any piers in those

waters.    The defendants observe that Bay House's bill of

complaint, including its prayer for specific relief, asserted

only an exclusive right to use the land beneath the pond, not

the pond's waters.    Thus, the defendants contend that Bay


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House's bill of complaint did not provide them notice that they

needed to defend their claimed right to use those waters, and

that the disputed portion of the chancellor's decree was

rendered without any allegations in the pleadings supporting

such relief.

     In response, Bay House argues that the portion of the

chancellor's decree enjoining the defendants from use of the

pond's waters was proper because this relief was "not

inconsistent" with the specific relief Bay House requested

concerning the defendants' trespass on Bay House's land.   Bay

House asserts that, therefore, its prayer for general relief

permitted the chancellor to award the additional unrequested

relief regarding use of the pond's waters.   We disagree with Bay

House's arguments.

     A litigant's pleadings are as essential as his proof, and a

court may not award particular relief unless it is substantially

in accord with the case asserted in those pleadings.    Brooks v.

Bankson, 248 Va. 197, 206, 445 S.E.2d 473, 478 (1994); Gwinn v.

Collier, 247 Va. 479, 484, 443 S.E.2d 161, 164 (1994); Ted

Lansing Supply Co. v. Royal Aluminum & Constr. Corp., 221 Va.

1139, 1141, 277 S.E.2d 228, 229 (1981).   Thus, a court is not

permitted to enter a decree or judgment order based on facts not

alleged or on a right not pleaded and claimed.   Hensley v.

Dreyer, 247 Va. 25, 30, 439 S.E.2d 372, 375 (1994); Harrell v.


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Woodson, 233 Va. 117, 121, 353 S.E.2d 770, 773 (1987); Ted

Lansing Supply Co., 221 Va. at 1141, 277 S.E.2d at 229; see

Ainslie v. Inman, 265 Va. 347, 356, 577 S.E.2d 246, 251 (2003);

Smith v. Sink, 247 Va. 423, 425, 442 S.E.2d 646, 647 (1994).

     The rationale supporting this basic rule is plain.     As we

have stated, "[e]very litigant is entitled to be told by his

adversary in plain and explicit language what is his ground of

complaint or defense. . . .   The issues in a case are made by

the pleadings, and not by the testimony of witnesses or other

evidence."   Ted Lansing Supply Co., 221 Va. at 1141, 277 S.E.2d

at 230 (quoting Potts v. Mathieson Alkali Works, 165 Va. 196,

207, 181 S.E. 521, 525 (1935)).

     The pleadings in the present case did not contain any

assertions that the defendants committed a trespass on waters

owned by Bay House.   Instead, Bay House's bill of complaint

alleged only that Bay House owned the land beneath the pond, and

that the defendants had committed acts of trespass by affixing

their piers to Bay House's submerged land.   In accordance with

these facts alleged, Bay House requested that the defendants be

enjoined from such trespasses on "the land of Bay House."

     Based on these allegations, the case pleaded by Bay House

was limited strictly to its ownership of the land and to the

defendants' encroachment on that land.   The total absence from

these pleadings of any claim that Bay House owned the pond's


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waters and that the defendants were committing a continuing

trespass thereon precluded the chancellor from determining

ownership of the waters and from imposing a remedy based on such

facts not alleged.    See Sink, 247 Va. at 425, 442 S.E.2d at 647;

Hensley, 247 Va. at 30, 439 S.E.2d at 375; Harrell, 233 Va. at

121, 353 S.E.2d at 773.

     The chancellor's contrary decision permitted Bay House to

obtain relief without providing the defendants notice in the

bill of complaint of any claim regarding their use of the pond's

waters.   This absence of notice in the pleadings was especially

detrimental to the defendants because their right to use the

pond's waters rested on the issue whether the waters were

navigable, and the defendants bore the burden of proof on that

issue.    See Boerner v. McCallister, 197 Va. 169, 175, 89 S.E.2d

23, 27 (1955).   Thus, the defendants were placed in the

untenable position of bearing the burden of proof on an issue

that Bay House did not identify in its pleadings.

     We also find no merit in Bay House's assertion that its

general prayer for relief permitted the chancellor to issue an

injunction regarding the defendants' use of the pond's waters.

When a party prays for both special and general relief and no

relief may be granted under the special prayer, a court of

equity may grant proper relief under the general prayer that is

consistent with the case stated in the bill of complaint.


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Johnson v. Buzzard Island Shooting Club, Inc., 232 Va. 32, 36,

348 S.E.2d 220, 222 (1986); Winston v. Winston, 144 Va. 848,

858-59, 130 S.E. 784, 787 (1925); see Sink, 247 Va. at 425, 442

S.E.2d at 648; Wright v. Castles, 232 Va. 218, 222, 349 S.E.2d

125, 128 (1986).   However, a general prayer will support relief

only for those matters placed in controversy by the pleadings

and, thus, any relief granted must be supported by allegations

of material facts in the pleadings that will sustain such

relief.   See Johnson, 232 Va. at 36, 348 S.E.2d at 222; Parks v.

Wiltbank, 177 Va. 461, 465-66, 14 S.E.2d 281, 282 (1941); Dobie

v. Sears, Roebuck & Co., 164 Va. 464, 475, 180 S.E. 289, 293

(1935).   This rule reflects the principle that although the

power of an equity court is broad, that power does not permit a

court to adjudicate claims that the parties have not asserted.

See Sink, 247 Va. at 425, 442 S.E.2d at 647.

     Here, the failure of Bay House's pleadings to put ownership

of the pond's waters at issue, or to allege a trespass to those

waters by the defendants, placed these issues beyond the reach

of Bay House's general prayer for relief.   Therefore, the

absence of such charges and facts from the bill of complaint

excluded those issues from the scope of the relief that the

chancellor was permitted to consider.   Accordingly, we hold that

under the particular pleadings in this case, the chancellor




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erred in awarding Bay House any relief regarding the pond's

waters and the defendants' use of those waters.

     For these reasons, we will affirm that portion of the

chancellor's decree holding that Bay House owns the bed of

Gaskins Pond and enjoining the defendants from trespassing on

the pond bed.   We will reverse the portion of the decree 1)

holding that Bay House owns the pond's waters; 2) enjoining the

defendants from future construction of piers or other structures

in those waters and from other further trespasses to the pond's

waters; and 3) directing the removal of existing piers and

structures that do not touch the pond bed.   We will enter final

judgment in the case.

                                         Affirmed in part,
                                         reversed in part,
                                         and final judgment.




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