Day v. Vaughn & Usilton, Inc.

67 S.E.2d 898, 193 Va. 168, 1951 Va. LEXIS 252
CourtSupreme Court of Virginia
DecidedDecember 3, 1951
DocketRecord No. 3821
StatusPublished
Cited by5 cases

This text of 67 S.E.2d 898 (Day v. Vaughn & Usilton, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Day v. Vaughn & Usilton, Inc., 67 S.E.2d 898, 193 Va. 168, 1951 Va. LEXIS 252 (Va. 1951).

Opinion

Smith, J.,

delivered the opinion of the court.

The appellee, Vaughn & Usilton, Incorporated, a Virginia corporation, hereinafter referred to as the complainant, was the owner and original subdivider of a tract of land in Arlington county known as “Vaughn & Usilton’s Addition to Arlington Heights”. The land was subdivided into 147 lots and certain streets, including the controversial “South Lincoln Street”, as shown on a plat duly recorded with a deed of dedication on November 12, 1937. A sketch of the plat, drawn approximately to scale (although the scale has been somewhat distorted by the reduction of the drawing), is included herein as a part of this opinion. This is a composite sketch, embracing all of the successive plats which were recorded, and containing other information which will appear therefrom.

At the time this suit was instituted, “South Lincoln Street” existed only on paper. It had not been physically laid out as a public street, nor had it been accepted for public use by Arlington county or the highway department. Complainant had sold ninety of the lots and continued to own the remaining fifty-seven which comprised the entire northwest section of the subdivision including the area designated as “South Lincoln Street”. Among the lots owned by the complainant, those numbered 99 through 127 and the area which constitutes “South Lincoln Street”, are now zoned “C-2” for commercial use. This area is clearly shown within the double boundary lines on the accompanying sketch.

Desiring to vacate the area designated as “South Lincoln Street” as a street, in order to permit the erection of a large department store on the block shown on the sketch as “zoned C-2”, complainant secured deeds of vacation from the owners of 140 of the 147 lots. In furtherance of its plan, complainant filed its bill in equity on July 19, 1948, against the remaining seven of the original 147 owners, praying, “that your complainant may be decreed to be the owner in fee simple of that area of land embraced within the bounds of what was formerly shown as ‘South Lincoln Street’ on the plats aforesaid, free and clear of the claims of all or any of the defendants named herein; that it may be decreed that none of the defendants named herein have any interest in said area formerly included within the said ‘South Lincoln Street’; that the title of your complainant to that [171]*171area of land embraced within the former bounds of said ‘South Lincoln Street’ may be quieted and established as against any and all claims that have been, or may in the future be, asserted by any of the defendants named herein, their heirs, successors or assigns; and that your complainant may be granted all such other, further and general relief * *

The original defendants to the bill of complaint were thus all the owners of the seven lots not included in the deeds of vacation. Two of these seven lots were owned by the Commonwealth of Virginia which filed its answer in the suit consenting to the closing of the street and the trial court entered a decree on July 7,1950, which has now become final, adjudicating that the Commonwealth of Virginia has no interest in the area in question. Two of the remaining five lots are owned by defendants who did not file any answer or appear and as to whom the prayer of the bill has been taken for confessed, which is now final and from which no appeal has been taken. The three remaining lots are owned by the appellants, sometimes referred to herein as defendants, as follows: Mr. and Mrs. William E. Day, No. 52; Mr. and Mrs. Jalmer O. Rolfson, No. 75; and Miss Margaret R. Redmond, No. 74.

The trial court heard the case ore terms and after mature consideration of the evidence and arguments of counsel, entered its order of July 7, 1950, decreeing (1) the complainant to be the owner in fee simple of that area of land embraced within the bounds of what is shown as “South Lincoln Street”, and (2) that its title be quieted and established as against any and all claims that have been, or may in the future be, asserted by any of the defendants. From this decree of July 7, 1950, the defendants obtained this appeal.

The first assignment of error we shall discuss is the alleged wrongful action of the trial court in denying the motion of the defendants to dismiss the complaint for lack of jurisdiction of the subject matter. The contention is made that this was a suit to condemn private property for private purposes under the guise of a proceeding to quiet title by removing a cloud thereon.

In Virginia it is well established that equity has inherent jurisdiction to quiet title to land and remove a cloud therefrom. 8 Michie’s Digest of Virginia and West Virginia Reports, Quieting Title, § 1, et seq.; 1 Hogg’s Equity Procedure, § 125 (3rd [172]*172ed., Miller, 1943). See also section -55-153, Code of Virginia, 1950.

“What is a cloud? Black’s Law Dictionary defines it to be an outstanding claim or incumbrance which, if valid, would affect or impair the title of the owner of a particular estate, and which apparently on its face has that effect, but which can be shown by extrinsic proof to be invalid or inapplicable to the estate in question.” Gardner v. Buckeye Sav., etc., Co., 108 W. Va. 673, 152 S. E. 530, 78 A. L. R. 1, 5. “A cloud is said to be the semblance of a title, either legal or equitable, or a claim of an interest in lands, appearing in some legal form, but which is in fact unfounded, or which it would be inequitable to enforce.” Rigdon v. Shirk, 127 Ill. 411, 19 N. E. 698, Anno. 78 A. L. R. 27. See Surry Lumber Co. v. Wellons, 129 Va. 536, 106 S. E. 382; Kane v. Virginia Coal, etc., Co., 97 Va. 329, 33 S. E. 627; Sulphur Mines Co. v. Boswell, 94 Va. 480, 27 S. E. 24.

What is the cloud sought to be removed, as disclosed by the bill of complaint? The complaint alleges that (1) complainant is the owner of all lots abutting upon the “South Lincoln Street” area, as shown on plats of record; (2) that complainant was the original subdivider of these lots; (3) that the defendants own certain lots shown on plats of record; (4) that the street has never been accepted as such by the public; (5) that the lots of defendants do not abut upon “South Lincoln Street”, and that all of the defendants’ lots have adequate access, over streets formally dedicated, laid out and improved, to main thoroughfares of Arlington county; (6) that the use of said “South Lincoln Street” area, as a street, would not constitute any benefit to defendants’ properties; (7) that defendants claim that they have an interest in the area formerly included within “South Lincoln Street”, as an incident to their ownership of lots described as owned by the defendants and shown on the plats of record.

Assuming the truth of the facts alleged, what is the legal consequence of this situation? Since the complainant must have been the owner or proprietor in order to subdivide and dedicate in the first instance, and since complainant owns all the lots abutting on the “South Lincoln Street” area, there would seem to be no doubt that the complainant has the fee simple title to the entire area designated as “South Lincoln Street”. Nusbaum v. Norfolk, 151 Va. 801, 145 S. E. 257.

[173]*173The public acquires no ownership in a street shown on a plat unless and until the appropriate authorities properly accept the dedication, before which time the dedicator and those claiming under him may revoke the dedication. Fugate v.

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Bluebook (online)
67 S.E.2d 898, 193 Va. 168, 1951 Va. LEXIS 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-vaughn-usilton-inc-va-1951.