Barner v. Chappell

• Decision Date: 12 September 2003
• Docket Number: Record No. 022710.
• Citation: Barner v. Chappell, 266 Va. 277, 585 S.E.2d 590 (2003)
• Parties: William M. BARNER, et al., v. Edward A. CHAPPELL, et al.
• Court: Virginia Supreme Court

585 S.E.2d 590

266 Va. 277

William M. BARNER, et al., v.Edward A. CHAPPELL, et al.

Record No. 022710.

Supreme Court of Virginia.

September 12, 2003.

John Tarley, Jr.(Susan Bradford Tarley; Spirn, Tarley, Robinson & Tarley, on briefs), Williamsburg, for appellants.

Christopher R. Papile, Norfolk (Alvin P. Anderson, Williamsburg; Mark A. Short, Newport News; Kaufman & Canoles, on brief), for appellees.

Present: All the Justices.

OPINION BY Justice LAWRENCE L. KOONTZ, JR.

In this appeal, we consider whether the chancellor correctly determined that a restrictive covenant prohibiting the building of a house, garage, or other structure on a lot in a residential subdivision is enforceable by one or more neighboring landowners.We further consider whether the chancellor correctly determined, in the alternative, that the restriction is enforceable by the neighboring landowners as an equitable servitude.

BACKGROUND

Beginning in 1922, John Garland Pollard, who would subsequently serve as the Mayor of the City of Williamsburg and Governor of Virginia, acquired property in the City of Williamsburg and James City County along what was then known as Texas Avenue.Between 1924 and 1938, Governor Pollard subdivided and sold portions of that property for use in the construction of single-family homes.A recorded plat of a portion of Governor Pollard's property dated May 30, 1930 reflects the subdivision of the property at that time.¹A short, dead-end road, subsequently designated "Ballard Lane," extending from Texas Avenue allowed access to the parcels designated on the plat as Lots 7, 7A, B, E, and F.A U-shaped road connecting to Texas Avenue at two points, subsequently referred to in some deeds as "Hairpin Road," allowed access to the parcels designated on the plat as Lots A, B, C, D, 7, 8, and 9.²In addition, another parcel, bounded by Texas Avenue and the interior curve of Hairpin Road, was designated as a "park."Along the outer curve of Hairpin Road between Lot 9 and Texas Avenue there was a large undivided parcel that was not given a number or letter designation.At the time the plat was prepared, Lots A, B, and 9 had already been conveyed.Over the next two years, Governor Pollard conveyed the remaining designated parcels, with the exception of Lot 7 where he maintained his residence.

The park, which remains undeveloped to this day, contains a natural, wooded ravine.The deeds conveying the lots designated as A, B, C, D, E, F, and 9 from Governor Pollard to the original grantees contain provisions requiring that the park be maintained perpetually for the mutual benefit of the owners of lots in Pollard Park.Additionally, provisions in these deeds limit development on the respective lots to single-family residences, and impose other construction restrictions such as twenty-foot setback lines and specified building sites.The deeds expressly state that these restrictions shall run with the land.

In 1932, Mary W. Craighill(Craighill) was the record owner of Lot A which is adjacent to Lot 8.By a deed dated December 3, 1932 and recorded on June 20, 1935, Governor Pollard conveyed Lot 8, a parcel containing less than one-tenth of an acre located at the midpoint of the outer curve of Hairpin Road, to Craighill (the Pollard/Craighill deed).This deed provides that "[t]he property hereby conveyed is to be used in connection with [Lot A] and no house, garage or structure of any kind shall be erected thereon."³This deed further provides that the restriction shall run with the land "forever."The Pollard/Craighill deed is the only deed relating to the conveyance of lots in Pollard Park that restricts all construction.

At the time of the conveyance of Lot 8 to Craighill, Governor Pollard had previously conveyed all the other lots designated on the 1930 plat by either numbers or letters with the exception of Lot 7, where he continued to reside.Governor Pollard, however, retained ownership of the undivided parcel located on Hairpin Road between Lot 9 and Texas Avenue.On January 16, 1937, Governor Pollard conveyed a portion of this parcel to Marion P. Morecock.The deed conveying this property contained the same restrictions concerning use of the property for residential purposes and preservation of the park as the deeds conveying the other Pollard Park lots prior to the conveyance of Lot 8.Through a series of subsequent conveyances, Eugene R. and Maureen B. Tracy(the Tracys) acquired this property on July 1, 1985.

Following Governor Pollard's death in 1937, the remainder of the previously undivided parcel was subdivided into two lots which were conveyed in 1938 by the executors of Governor Pollard's estate to the predecessors-in-title respectively of Lloyd A. Julien, Jr. and Sarah B. Julien(the Juliens) and Pat C. Fulmer and Robert M. Fulmer(the Fulmers).The original deed in the Juliens' chain of title contained restrictions similar to those in the deeds conveying lots in Pollard Park prior to Governor Pollard's death; the original deed in the Fulmers' chain of title did not contain these restrictions, although it did reference the 1930 plat.On August 5, 1941, the executors conveyed Lot 7 to the predecessor-in-title of Genevieve T. Barrett and Jack C. Barrett(the Barretts).The original deed in the Barretts' chain of title contained restrictions similar to those in the deeds conveying other lots in Pollard Park prior to Governor Pollard's death.

By recorded deed dated August 5, 1998, William Maxwell Barner, III and Sandra E. Barner(the Barners) became the owners of Lot 8.⁴Because they failed to conduct a title examination, the Barners did not have actual notice of the Lot 8 building restriction originating from the Pollard/Craighill deed.However, the Barners do not dispute that the restriction was discoverable within their chain of title and, thus, that they had record notice of this restriction.Soon after acquiring Lot 8, the Barners made preparations to construct a single-family residence upon this lot.⁵

On August 26, 1999, the Tracys, the Juliens, the Fulmers, Edward A. Chappell, Susan S. Geary, William T. Geary, Elizabeth A. Rutgers, Marcia T. Smith, Victor H. Smith, and Joseph S. Wheeler(collectively, the neighboring landowners), who were at that time residents and record owners of lots in Pollard Park, filed a bill of complaint seeking to enforce the restriction in the Pollard/Craighill deed.⁶The bill of complaint alleged that the construction of a residence on Lot 8 would violate this covenant and, therefore, requested that the Barners be permanently enjoined from building a residence thereon.Although the bill of complaint did not state the precise theory under which all the neighboring landowners asserted that they were entitled to enforce the covenant, it subsequently developed that the majority of these parties, who trace their ownership of lots in Pollard Park to deeds that predated the Pollard/Craighill deed, were relying upon the theory that the restrictive covenant represented an equitable servitude intended to benefit all the lots in Pollard Park.

During an ore tenus hearing held September 27, 2001, the parties presented conflicting evidence on the purpose of the covenant.The Barners' expert witness testified that, in 1932, the City of Williamsburg had a sewage disposal problem and that Governor Pollard supported a drainage plan which would run a new sewer line through Lot 8.The Barners contended that the building restriction on Lot 8 was intended solely to prevent any structures from obstructing the proposed sewer line.Because the Barners were willing to reroute the existing sewer line around the footprint of their proposed residence, they asserted that the covenant was no longer needed for its intended purpose and, thus, had lapsed.

On cross-examination, the Barners' expert testified that Lot 8 was naturally a part of the ravine in the center of Pollard Park prior to the construction of Hairpin Road.Additionally, he testified that Governor Pollard could have chosen to place the sewer line along the edge of Lot 8 instead of permitting the sewer line to bisect this lot so that no dwelling could be built on it.The neighboring landowners contended that this indicates that facilitation of the proposed sewer plan was not Governor Pollard's primary purpose in creating the building restriction on Lot 8.Rather, they contended that Governor Pollard's intention, as demonstrated by the building restrictions in all the deeds conveying lots in Pollard Park, was to preserve the natural, green character of the subdivision.

In a final decree dated August 21, 2002, the chancellor, based on the evidence and a view of Pollard Park, found that Governor Pollard intended to preserve Lot 8 as an open, green space and that the purpose of the covenant, therefore, had not lapsed.The chancellor further found that there was sufficient vertical privity between at least one of the neighboring landowners and Governor Pollard and that the restrictive covenant in the Pollard/Craighill deed met all other requirements for a covenant running with the land.Thus, the chancellor determined that this covenant could be enforced against the Barners.The chancellor also...