Dykes v. Friends of the C.C.C. Road ( 2012 )

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).
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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.
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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.
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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
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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
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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
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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
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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.
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