Kirby v. Town of Claremont

416 S.E.2d 695, 243 Va. 484, 8 Va. Law Rep. 2826, 1992 Va. LEXIS 38
CourtSupreme Court of Virginia
DecidedApril 17, 1992
DocketRecord No. 910933
StatusPublished
Cited by1 cases

This text of 416 S.E.2d 695 (Kirby v. Town of Claremont) 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
Kirby v. Town of Claremont, 416 S.E.2d 695, 243 Va. 484, 8 Va. Law Rep. 2826, 1992 Va. LEXIS 38 (Va. 1992).

Opinions

JUSTICE KEENAN

delivered the opinion of the Court.

This appeal involves a dispute over the use of a road constructed on an easement granted to the Town of Claremont. Ann K. Kirby, successor to the easement’s grantor, primarily asserts that the trial court erred in ruling that (1) pursuant to Code § 33.1-151, a public necessity exists for continuance of the road and that the welfare of the public would not be served best by abandonment of the road; (2) Kirby failed to prove that the Town violated the terms set forth in the Deed of Easement; (3) a reversion of the easement could not occur absent an abandonment of the road pursuant to Code § 33.1-151 et seq.\ and (4) Flying Point Bridge did not exist in 1951 and, thus, the purpose of the easement has not been extinguished.1 Asserting cross-error, the Town contends that the trial court erred in ruling that (1) the road does not include the old bridge abutment; and (2) the residents of the Town do not have the right to fish from within the area of the easement.

Prior to 1951, James Walter Carter owned a tract of land, known as Claremont Manor Farm, which is located in the Town of Claremont. A portion of the farm is bisected by a small body of water known as Brandon Gut. Brandon Gut flows into Chippokes Creek, which in turn flows into the James River. Before 1951, a small bridge known as Flying Point Bridge crossed Brandon Gut.

In 1951, Carter and the Town of Claremont negotiated an Agreement (the Agreement) in which Carter agreed to construct a road (the Road) on his property “from Cool Spring Road to the easterly beginning of Flying Point Bridge.” Carter also agreed to grant to the Town a 40 foot-wide easement along the Road to be [487]*487used “for public street purposes only.” Additionally, the Agreement provided that “said easement [will] continue only so long as the Roadway, as it may from time to time exist, shall be used solely for public street or road purposes.”

Carter conveyed the easement by Deed of Easement (the Deed) in December 1951. The Deed provided that the conveyance was made upon condition that “the Town of Claremont will not at any time use any portion of the property above described except for public street purposes.” The Deed also stated that the easement was granted upon the condition that “the Town of Claremont will not at any time use any portion of the property above described except so much thereof as shall actually lie within the bounds of the Roadway.” Additionally, the Deed provided that:

In the event that any one or more of the conditions aforesaid shall be broken, or if the Town of Claremont shall close or abandon the Roadway or any part thereof, the said Easement shall cease and determine and all right, title and interest in and to said land shall revert to the grantors herein, their heirs, devisees, or assigns.

In the early 1960’s, upon request of the Town, the Road was taken into the secondary system of state highways. In December 1964, Carter conveyed Claremont Manor Farm to the Felician Sisters of Virginia. In September 1976, the Felician Sisters sold the Farm to Ann K. Kirby as co-trustee for her children.

Kirby filed a suit against the Town and the State Department of Transportation alleging that the easement had been extinguished and had reverted to her because the Town breached the conditions outlined in the Agreement and Deed. Kirby also petitioned the Board of Supervisors of Surry County to have the Road abandoned pursuant to Code § 33.1-151, alleging that nó public necessity exists for the Road, that the purposes for which the Road was constructed no longer exist, and that the Road presents a danger to public safety and welfare. The Board of Supervisors did not grant the abandonment petition, and Kirby appealed its decision to the trial court pursuant to Code § 33.1-152.2 The trial [488]*488court consolidated the two cases, and it heard testimony on each case in March 1989.

Evidence presented at trial shows that Flying Point Bridge no longer exists. Additionally, Kirby presented evidence that members of the public often picnic and fish from the old bridge abutment at the end of the Road and from the beach nearby. Kirby also presented evidence that members of the public sometimes use the area for drinking and sleigh riding.

The Town presented evidence that, members of the public have used the Road and the old bridge abutment for many years for sightseeing, observation of wildlife, and fishing. The evidence further shows that the only accident on the Road involved a bicycle. Additionally, the Town’s mayor, Jean Wingfield, testified that she told people that fishing was allowed from the old bridge abutment and from areas outside the Road.

The trial court held that a public necessity exists for the continuance of the Road and that the welfare of the public will not be best served by abandoning the Road. The trial court further held that the Town has not violated the Deed, “and even if this had been proved, a reversion to the abutting landowner, Kirby, could not occur absent an abandonment of the road pursuant to Section 33.1-151.”

On appeal, Kirby first argues that the trial court erred in ruling under Code § 33.1-152 that a public necessity exists for continuance of the Road and that the welfare of the public would not be served best by abandonment of the Road. Either of these findings by the trial court, if supported by the evidence, is a sufficient basis upon which to uphold the denial of a petition for abandonment under Code § 33.1-152. The rulings of the trial court, based on its factual findings, will be upheld on appeal unless they are plainly wrong or without evidence to support them. Carter v. Carter, 223 Va. 505, 508-09, 291 S.E.2d 218, 220 (1982).

Kirby contends that sightseeing and recreational purposes are not a sufficient basis to establish a public necessity for continued use of the Road. She emphasizes the fact that the Road does not connect to any other road, facility or property. Further, she notes [489]*489that Flying Point Bridge, which the Road earlier joined, no longer exists.

Kirby also argues that the trial court erred in finding that the welfare of the public would not be served best by abandonment of the Road. She cites the testimony of her expert witness, T. Howard Noel, a civil engineer, who testified that the narrow width of the Road created a “potential hazard or danger from a traffic safety perspective.” Noel also testified that the Road does not meet the present minimum state standards for width, sight distance and slope.

In examining Kirby’s argument, we begin by considering the meaning of the term “public necessity” as it appears in Code § 33.1-152. As explained by this Court in Hiner v. Wenger, 197 Va. 869, 91 S.E.2d 637 (1956), the term “necessary” has a distinct meaning in the context of statutes and judicial decisions concerning the use of public roads. We stated that:

“[Wjhen applied to a public road, [’necessary’] is used in the statutes and judicial decisions, not in the sense of being absolutely indispensable to communications between two points, but with relation to the purposes for which public highways are established, namely, the reasonable accommodation of the traveling public.”

Id.

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Bluebook (online)
416 S.E.2d 695, 243 Va. 484, 8 Va. Law Rep. 2826, 1992 Va. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-town-of-claremont-va-1992.