Ocean Island Inn, Inc. v. City of Virginia Beach

Supreme Court of Virginia

Ocean Island Inn, Inc. v. City of Virginia Beach

220 S.E.2d 247, 216 Va. 474, 1975 Va. LEXIS 317

CourtSupreme Court of Virginia

DecidedDecember 1, 1975

DocketRecord 740892

StatusPublished

Cited by16 cases

This text of 220 S.E.2d 247 (Ocean Island Inn, Inc. v. City of Virginia Beach) 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

Ocean Island Inn, Inc. v. City of Virginia Beach, 220 S.E.2d 247, 216 Va. 474, 1975 Va. LEXIS 317 (Va. 1975).

Pincite

Opinion

Poff, J.,

delivered the opinion of the court.

The ultimate issue on this appeal is whether an offer of dedication 1 of streets in a subdivision platted by a predecessor in title to Ocean *475 Island Inn, Inc., was effectively accepted by the City of Virginia Beach or its governmental predecessor, Princess Anne County. 2 The chancellor resolved that issue in favor of the city.

In 1926, Lynnhaven Shores, Inc., recorded a subdivision plat 3 of its property lying in Princess Anne County along the southern shore of Chesapeake Bay just east of Lynnhaven Inlet. The plat depicted Ocean Avenue, a 100 foot wide street running parallel to the shoreline on the north and to blocks 2 and 3 on the south; Page Avenue, a street south of and parallel to blocks 2 and 3; Atlantic Avenue (now Shore Drive), a street south of and approximately parallel to Page Avenue; and Jordan Street (now Jade Street), a 60 foot wide street running north from Atlantic Avenue to Ocean Avenue between block 2 on the west and block 3 on the east.

The owner expressly reserved the fee in all streets. Subsequent to the time the plat was recorded, natural accretion caused the land lying between Ocean Avenue and the mean low water mark of the bay to increase to a width of approximately 250 feet. In 1959, a successor in title to the subdivider surrendered its corporation charter, and a receiver was appointed to execute deeds of correction conveying to owners of certain lots in blocks 2 and 3 the fee in Ocean Avenue and the expanded beach area opposite their lots. The receiver was also authorized to liquidate all other assets in the subdivision, and in 1966, he conveyed those assets, including the fee in the streets remaining, to one James Luster. By deed dated November 20, 1970, complainant acquired a portion of Luster’s property from one of Luster’s successors in title.

The land conveyed to complainant included, inter alia, the land in Jade Street between the northern line of Page Avenue and the northern line of Ocean Avenue, the property at issue on this appeal. To facilitate identification in this opinion, we divide the subject property into two parcels. Parcel A is the 60 foot by 175 foot portion of Jade Street between the northern line of Page Avenue and the southern line of Ocean Avenue. Parcel B is the 60 foot by 100 foot portion of Jade Street between the southern line of Ocean Avenue and the northern line of Ocean Avenue; this portion of Jade Street is also a portion of Ocean Avenue. The 1970 deed referred to parcel B *476 as “a closed portion of Ocean Avenue”, and conveyance of parcel A was made “subject to the rights of the public, if any, ... in and to the use of said Jordan Street (now Jade Street).”

Prior to acquisition of the subject property, complainant had constructed a motel on adjacent land in block 3. In 1971, complainant surfaced a portion of the subject property and installed fences, curbing, and outdoor lighting. Later that year, under a building permit granted by the city, complainant commenced construction of a “recreation shed” on parcel A. The city then issued a stop work order and directed complainant to remove the improvements, asserting that the structures “are in violation of the City Zoning Ordinance since they are located on a dedicated street right-of-way.”

Complainant filed a bill of complaint praying that the city “be temporarily and permanently enjoined from wrongfully interfering or trespassing upon its real property”. After granting a temporary injunction, the chancellor heard the cause on evidence ore terms and the several exhibits.

By final decree entered May 15, 1974, the chancellor ruled that an offer of dedication of “all of Jade Street and Ocean Avenue” had been made; that the offer had been effectively accepted “before withdrawal ... by plaintiff’s predecessors in title”; and that “the right of the public to the use of [parcels A and B] is vested in the City of Virginia Beach”. The chancellor denied complainant’s prayer for a permanent injunction and, in legal effect, dissolved the temporary injunction.

Preliminarily, complainant’s position is that, assuming an effective acceptance of the offer of dedication, such acceptance postdated revocation of the offer. Complainant contends that the 1959 court order authorizing the receiver to convey the fee in the streets to third parties, and the receiver’s deeds executed under that authority, constituted a revocation of the offer of dedication. We disagree. The subject of that offer was an easement, a property interest distinct from the fee and an encumbrance upon it. While revocation of an offer of dedication may be implied from an act of the dedicator inconsistent with the purpose contemplated in his offer, 11 E. McQuillin, Municipal Corporations § 33.60 (796-98) (3d ed. rev. 1964), conveyance of the fee in these streets was subject to the outstanding encumbrance and was an act fully consistent with the enjoyment of the easement originally offered.

Complainant’s principal argument is that the offer of dedication was never effectively accepted.

*477 The chancellor’s ruling that there had been an effective acceptance was based on alternative grounds, viz., long public user of the subject property; the dedicatee’s action “in refusing [complainant’s petition] to close” parcel A and “in leaving open” parcel B at the time Ocean Avenue was closed in 1954; and the dedicatee’s action “in opening and developing” other platted streets and in installing and franchising public utilities in those streets.

Recordation of a subdivision plat and sale of lots by reference thereto manifest an intent to make available for public use the platted streets (or easements therein) and constitute a common law offer of dedication. See Payne v. Godwin, 147 Va. 1019, 1024, 133 S.E. 481, 482 (1926). Since a completed dedication imposes the burden of maintenance and potential tort liability upon the public, a dedication does not become complete until the public or competent public authority manifests an intent to accept the offer. Such intent can be manifested expressly; by implication from public user of requisite character, Buntin v. Danville City, 93 Va. 200, 204-205, 24 S.E. 830 (1896); or by implication from an “exercise of jurisdiction and dominion” by the governing authority, Staunton v. The Augusta Corporation, 169 Va. 424, 436, 193 S.E. 695, 699 (1937).

Thus, in determining whether an offer of dedication has been accepted by implication, courts have looked to such governmental actions as installing or franchising public utility lines in or across a street, Greenco Corp. v. City of Virginia Beach, 214 Va. 201, 198 S.E.2d 496 (1973); opening and paving a street, Agardy v. Borough of Pleasant Hills, 394 Pa. 350, 147 A.2d 366

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