Dykes v. Friends of the C.C.C. Road

• Court: Supreme Court of Virginia
• Decided: January 13, 2012
• Docket: 101630
• Status: Published

Opinion

Present: Kinser, C.J., Goodwyn, Millette, Mims, McClanahan, and Powell, JJ., and Koontz, S.J.

DAVID S. DYKES, ET AL. OPINION BY v. Record No. 101630 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR. January 13, 2012 FRIENDS OF THE C.C.C. ROAD

FROM THE CIRCUIT COURT OF HIGHLAND COUNTY Humes J. Franklin, Jr., Judge

In this appeal, we consider whether the circuit court

erred in concluding that a certain road traversing private

land in rural Highland County is a public road. The case was

decided by the circuit court on stipulated facts and the

appeal presents pure questions of law applied to these

undisputed facts. Accordingly, we apply a de novo standard of

review. Johnson v. Hart, 279 Va. 617, 623, 692 S.E.2d 239,

242 (2010).

BACKGROUND

On March 17, 2009, Friends of the C.C.C. Road, an

unincorporated association purporting to represent the general

public, filed a complaint for injunctive relief in the Circuit

Court of Highland County against David S. Dykes, John W.

Burch, and Elizabeth H. Burch (collectively, "the property

owners"). The complaint alleged that the property owners

possessed three tracts of land in Highland County comprising

over 500 acres through which ran a mostly gravel road known locally as the "C.C.C. Road." Asserting that the property

owners "knew or should have known that the C.C.C. Road [is] a

public road," the complaint alleged that they had blocked

access to the road by the general public by erecting pole

gates where this road intersects with Jackson River Road and

Bratton McGuffin Trail, two nearby public roads. Alleging

that obstructing access to the C.C.C. Road with the pole gates

violated Code § 33.1-345(3) (Class 1 misdemeanor to obstruct

any road), the complaint sought an injunction requiring the

property owners to remove the pole gates and take no further

action to obstruct access to the road by the public.

The property owners filed a joint answer on April 21,

2009 in which they denied that the C.C.C. Road is a public

road. The answer expressly asserted that the road had not

become public by operation of law under Code § 33.1-184 or as

a result of an express or implied dedication and acceptance,

and that there could be no prescriptive easement in favor of

the general public to use the road. 1

1 On brief, the parties address the application of Code § 33.1-184, as well as the Byrd Road Act, 1932 Acts ch. 415 (now codified in part at Code § 33.1-69), to the facts of this case. Because the circuit court made no express ruling on the application of either law with respect to its ultimate determination that the C.C.C. Road is a public road, and neither law impinges on our analysis of the dispositive issues, we need not address them in this opinion.

2 On May 15, 2009, the parties filed an agreed stipulation

of facts. According to that stipulation, the C.C.C. Road was

constructed by the Civilian Conservation Corps sometime in the

late 1930s. 2 Since its construction, the road has been used by

the general public as a thoroughfare between the Jackson River

Valley and the Back Creek Valley as well as for access to the

George Washington National Forest. Officers of the Highland

County Sheriff's Office, the county surveyor, and the Bolar

Volunteer Fire Department consider it as a public road and

have used the road for at least 25 years for official

purposes.

In 1941, the Highland County Board of Supervisors noted

the agreement of the then owner of the property where the

C.C.C. Road intersected with a state road to maintain a gate

and cattle guard at that intersection "and further agreed

should he fail to do so, [the] State Highway Department may

remove [the] gate and cattle guard." However, no government

record shows that the County has formally adopted the road

into the County's road system, nor has the County ever

2 The Civilian Conservation Corps was a federal agency created by an act of the United States Congress "for the purpose of providing employment, as well as vocational training . . . through the performance of useful public work in connection with the conservation and development of the natural resources of the United States." Civilian Conservation Corps Act of 1937, Pub. L. No. 75-163, 50 Stat. 319 (1937).

3 maintained or repaired the road. Likewise, the road has not

been adopted into the state road system by the Virginia

Department of Transportation ("VDOT") and does not appear on

the official VDOT map for the County.

In 2001, an official of the Virginia Department of

Forestry advised a landowner whose property is located along

the C.C.C. Road that "emergency fire trails . . . established

on private property, with the permission of the landowners, by

the Civilian Conservation Corps . . . were never official

state maintained roads, nor did the Commonwealth have legal

easement to use them. The trails belong to landowners on

[whose property] they cross."

Other nearby landowners who access their land along the

C.C.C. Road favor the restriction of access to the road and

have been provided with keys to the pole gates. Keys to these

gates also have been provided to the Sheriff's Office and a

utility company, and keys have been offered to the Forestry

Service.

Although the case was initially set for trial, the

parties filed memoranda of law in conjunction with the

stipulated, undisputed material facts. On March 2, 2010, the

circuit court issued an opinion letter in which it stated that

the C.C.C. Road could have become a public road by either of

"[t]wo common law principles." Relying on Bradford v. Nature

4 Conservancy, 224 Va. 181, 294 S.E.2d 866 (1982), the court

first opined that private roads could become public either

through an express or implied dedication by the landowner and

acceptance of that dedication by the government. 3 There was no

assertion of an express dedication of the C.C.C. Road as a

public road by the landowners or their predecessors in title,

and there are no facts which would support such an assertion

in this case. The circuit court concluded that even if there

had been an implied dedication of the road by the various

owners of the land over which it crossed, there was "[n]o

indication or record of a public authority formally accepting

dedication of the Road." The court further noted that the

notion of implied acceptance was not applicable to a rural

road. Thus, the court ruled that Friends of the C.C.C. Road

"failed to prove that the Road is public . . . by a dedication

and acceptance."

The circuit court then undertook an analysis of whether

the public could acquire a "right-of-way" by prescription.

The court's analysis began with the recognition that "[t]he

general public cannot acquire a right-of-way by prescription

because the public as a whole lacks the requisite element of

3 A private road may also be acquired for public use through eminent domain, but clearly such was not the case here.

5 exclusiveness, which is a component of the factors necessary

to give rise to a prescriptive easement." To support this

proposition, the court relied upon Burks Brothers of Virginia,

Inc. v. Jones, 232 Va. 238, 246, 349 S.E.2d 134, 139 (1986),

which involved an unsuccessful claim of a prescriptive

easement in favor of the public over a trail also constructed

on private property by the Civilian Conservation Corps. The

court concluded that Friends of the C.C.C. Road "failed to

prove that the Road is public . . . by prescription."

Nonetheless, the court concluded that Burks Brothers

implicitly supported the possibility of a public right-of-way

being created on private property through "recognition" by the

government of a long and continuous use by the public, and

thus that Friends of the C.C.C. Road had proven that the

general public is entitled to unrestricted use of this road.

On May 25, 2010, the circuit court entered a final order

granting injunctive relief to Friends of the C.C.C. Road

requiring the property owners to remove the pole gates and

allow the general public to have access to the road. Both

parties entered objections to this order. In an order dated

December 10, 2010, we awarded the property owners an appeal

from this judgment and also granted assignments of cross-error

by Friends of the C.C.C. Road.

6 DISCUSSION

The property owners principally assign error to the

circuit court's judgment that, while there had been no

dedication and acceptance or acquisition of a prescriptive

easement in favor of the general public, the C.C.C. Road is

nonetheless a public road or subject to a public right-of-way

by virtue of long and continuous use by the public and

recognition by the government of this fact. Friends of the

C.C.C. Road assign cross-error to the court's determination

that the road has not become a public road by traditional

principles of prescription or dedication and acceptance.

We begin by addressing the issue raised by Friends of the

C.C.C. Road that the circuit court erred in concluding that

this road is not a public road under principles of dedication

and acceptance. As stipulated, there are no facts in the

record indicating that the property owners or their

predecessors in title ever made a formal offer to dedicate the

C.C.C. Road to public use or of a formal acceptance of such

offer by the government. Thus, in this case for dedication

and acceptance to apply, both actions would have to arise by

implication. In that regard, we have recently observed,

"'[w]hile a dedication may be implied from the acts of the

owner, these acts must be unmistakable to show the intention

of the landowner to permanently give up his property. This

7 Court has long recognized that what may amount to a dedication

in an urban area will not serve the same purpose in a rural

one. This is because landowners in rural areas frequently

allowed roads to be opened through their property without

intending a dedication to the public. Just as important, the

government might not have any intention to accept the road and

be responsible for its maintenance. Thus, before a rural road

can be dedicated, there must be a formal acceptance by the

public.' " Mulford v. Walnut Hill Farm Group, LLC, 282 Va.

98, 106, 712 S.E.2d 468, 473 (2011) (quoting Bradford, 224 Va.

at 198-99, 294 S.E.2d at 875).

It is not disputed that the C.C.C. Road traverses private

property in a rural area. Because there can be no implied

acceptance of an implied dedication of a rural road, and there

is no evidence of a formal acceptance of the road in this

case, the circuit court did not err in finding that there had

been no dedication and acceptance of the C.C.C. Road as a

public road.

We turn now to the principal issue raised by the property

owners in their appeal and the closely-related issue asserted

in the first assignment of cross-error. The property owners

contend that the circuit court correctly concluded that there

cannot be a prescriptive easement in favor of the general

public to use a private road, but that it erred in finding

8 that the same effective result can be obtained by showing that

the public's use of the private road has been "long and

continuous" and has been "recognized" by the government.

Friends of the C.C.C. Road maintains that even if the court

erred in finding that a recognized long and continuous use of

a private road creates a public right-of-way for its use, the

court further erred in finding that a prescriptive easement

could not accrue in favor of the general public.

We may readily resolve the question whether a public

easement or right-of-way may be acquired solely through long

and continuous public use of a private road "recognized" by

the government without a formal acceptance of the

responsibility to maintain the road. As we have previously

noted, the circuit court correctly found that there had been

no formal acceptance of an implied dedication of the C.C.C.

Road as a public road by the Board of Supervisors of Highland

County. The 1941 acknowledgement by the Board of an agreement

by a then owner of the property to maintain a gate and cattle

guard where this road intersected a state road is clearly not

a formal acceptance of the road as a public road. The Board

has never agreed to maintain the road as a public road would

require. Nevertheless, the circuit court concluded that the

long and continuous use of this road, coupled with a

recognition of that use by the Board, supports the

9 determination that the road is a public road. In reaching

this conclusion, the circuit court relied upon another circuit

court's decision which in turn relied upon Virginia Hot

Springs Co. v. Lowman, 126 Va. 424, 101 S.E. 326 (1919). That

case, however, does not equate recognition of a long and

continuous use of the road by the public with a formal

acceptance by the appropriate governmental authority.

In Virginia Hot Springs, we explained that the issue of

whether there was a public right-of-way regarding the width of

a particular road was "founded upon dedication and acceptance"

of which long and continuous use by the public was merely part

of the evidence of an implied dedication, and the recognition

by the government was merely part of the evidence of an

acceptance. Id. at 428-29, 101 S.E. at 327-28. Accordingly,

we hold that the circuit court erred in finding that Friends

of the C.C.C. Road had established that the road is public

solely by virtue of its long and continuous use by the general

public and recognition of that use by the County. The law of

this Commonwealth simply does not allow for a conversion of

private property to public property solely by public use.

Finally, we turn to the issue whether the public can

claim a prescriptive easement over a private road, as Friends

of the C.C.C. Road asserts. The language of Burks Brothers

alluded to by the circuit court to support the proposition

10 that such a prescription could arise is as follows:

"[B]ecause . . . there was no evidence of long-continued use

of the CCC trail by the general public, as distinguished from

use by landowners, residents, and their guests, we do not

agree with the trial court's conclusion that the general

public has acquired a prescriptive right to use the CCC

trail." Burks Brothers, 232 Va. at 249, 349 S.E.2d at 141.

This statement, however, is not conclusive on whether an

easement in favor of the public can be acquired by

prescription. To the contrary, at most it simply makes clear

that a necessary element for prescription was lacking because

there was no evidence of prescriptive use of the putative

easement by the claimants, that is, by the general public.

Moreover, we are of opinion that the circuit court's broad

interpretation of this single sentence is so contrary to the

well-established law of this Commonwealth, that it cannot be

sustained.

In Commonwealth v. Kelly, 49 Va. (8 Gratt.) 632 (1851),

we rejected the notion that under English common law mere use

over a long period could result in the conversion of a private

road into a public road by prescription, noting that "[e]ven

in England there must be an intention to dedicate the road

. . . of which the use is the evidence and nothing more." Id.

at 635. And it cannot be inferred through use alone "that an

11 individual makes a gift of his property to the public from an

equivocal act, which equally proves an intention to grant a

mere revocable license[.] The public is not injured by this

view of the subject. It has the accommodation of the road as

long as the license continues, and after the license is

revoked, the road may be made public if the public convenience

requires it, by making compensation to the owner." Id. at

635-36. We went on to affirm that there were distinctions

between urban and rural areas as to what would be sufficient

to prove a dedication and acceptance, but we were clear that

in no case could a private road become public merely by an

allegedly prescriptive use of it by many individuals over a

long period of time. Id. at 636-37.

In many subsequent opinions we have been clear that to

acquire an easement or right-of-way over a road by

prescription, an essential element must be that the claimant

is asserting the right to the exclusion of others. See, e.g.,

Craig v. Kennedy, 202 Va. 654, 657-58, 119 S.E.2d 320, 322-23

(1961). Thus, "where the use of a way by persons owning

property in the immediate area has been in common with the use

of the roadway by members of the general public, the essential

element of exclusiveness is lacking because the use of the

roadway is dependent upon the enjoyment of similar rights by

others, and no rights by prescription arise." Ward v. Harper,

12 234 Va. 68, 71, 360 S.E.2d 179, 181 (1987); see also Rhoton v.

Rollins, 186 Va. 352, 363, 42 S.E.2d 323, 328-29 (1947);

Totten v. Stuart, 143 Va. 201, 203-04, 129 S.E. 217, 218

(1925); Kent v. Dobyns, 112 Va. 586, 587-88, 72 S.E. 139, 139

(1911). In other words, mere use by the general public is not

evidence of prescriptive use, but of a license by the owner

permitting the use, and such evidence will defeat a claim by

one individual, by a group, or by the general public asserting

a prescriptive easement.

While on occasion we have discussed the conversion of a

private road into a public road by "prescription," it has

always been clear in the context of those cases that the

elements of prescription were being used to establish that an

implied dedication of the property had been made. As we

explained in Board of Supervisors of Tazewell County v.

Norfolk and Western Railway Company, 119 Va. 763, 773, 91 S.E.

124, 128 (1916), "[w]hen the dedication is implied from the

long and continuous use by the public for the prescriptive

period of twenty years, and there has been acceptance by

competent authority title to a right-of-way for a public road

may be obtained by prescription." (Second emphasis added.)

Viewed in the light of this prior case law, the statement in

Burks Brothers relied upon by the circuit court should be

interpreted as meaning that "long-continued use" of a private

13 road can result in a "prescriptive" taking of the road if

there is an affirmative act by competent authority of

acceptance of the dedication the use implies. Accordingly, we

hold that the circuit court's ruling on this point was in

error insofar as it would allow a traditional prescriptive

easement to be created in favor of the general public, but its

ruling that prescription had not been proven was nonetheless a

correct result in light of its finding that there had been no

acceptance.

CONCLUSION

For these reasons, we will reverse the judgment of the

circuit court granting a permanent injunction to Friends of

the C.C.C. Road and requiring the property owners to remove

the pole gates and to allow the general public unrestricted

access to the C.C.C. Road, and we will enter final judgment

here for the property owners.

Reversed and final judgment.