Bond v. Green

• Decision Date: 07 March 1949
• Citation: Bond v. Green, 189 Va. 23, 52 S.E.2d 169 (1949)
• Parties: BOND . v. GREEN et al.
• Court: Virginia Supreme Court

52 S.E.2d 169

189 Va. 23

BOND .

v.GREEN et al.

Supreme Court of Appeals of Virginia

March 7, 1949.

.

Appeal from Circuit Court, Fairfax County; Paul E. Brown, Judge.

Suit for injunction by Eugene A. Green and another against Vernard F. Bond. From the decree, the defendant appeals.

Reversed and final decree.

Before HUDGINS, C. J, and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

Henry P. Thomas and John W. Waller, both of Alexandria, for appellant.

Charles Pickett, of Fairfax, for appellees.

HUDGINS, Chief Justice.

In 1942, Vernard F. Bond acquired 4.68 acres of land, designated as Lot No. 9 of a subdivision lying in Fairfax county, known as "Cameron Villa Farms." In 1925, a plat of this subdivision was made and recorded, whereby approximately 40 acres of an old farm known as the "Javins Tract, " was subdivided into thirteen lots. Six of these lots, including Lot No. 9 sold to Bond, had a combined eastern frontage of l, 682y₂ feet on the "Triplett Road, " and an equal western frontage on a new road extending north and south through the subdivision and parallel to the Triplett road. In 1947, Bond divided his Lot No. 9 into eight lots, four fronting east on the Triplett road and four fronting west on the new road. A plat of this subdivision, designated "Resubdivision of Part of Cameron Villa Farms, " was approved by the proper authorities of Fairfax county, and duly recorded.

Bond was using the Triplett road for the purpose of hauling building materials to several houses which he had under construction on his lots fronting on this road, when Eugene A. and Merle B. Green obtained a permanent injunction "forever" enjoining and restraining "Vernard F. Bond, his servants, agents, employees, assignees, alienees and successors in title * * * from going upon that certain outlet road situated in Mount Vernon District, Fairfax County, Virginia, known as the Chase or Triplett outlet road, either in person or by the use of vehicles, machinery or otherwise." From this decree Bond obtained this appeal.

The only question presented is whether the Chase or Triplett road is a private or a public way.

The established facts are that, in 1857, one J. Edward Chase owned a farm situated in Fairfax county, adjacent to and south of a farm owned by F. F. Triplett. Thompson Javins owned a farm just north of Triplett and between his land and the Rolling road, a county road extending east and west between Alexandria and Fairfax courthouse. Chase, at the October term, 1857, made application to the county court of Fairfax to establish a road across the Triplett and Javins lands to the Rolling road. On this application the following order was entered: "On the motion of J. Edward Chase. Ordered that one of Commissioners of Roads for this County do view a way for a road from the lands of said Chase through the lands of F. F. Triplett and Thompson Javins to the Rolling Road, and that he report to the Court the convenience and inconvenience that will result as well to the public as to individuals if said road shall be established as proposed, and especially whether any yard, garden, orchard or any part thereof will in such case be taken."

Pursuant to this order one of the Commissioners of Roads made the following report: In obedience of the order of the County Court of Fairfax county at its October Term, I have viewed the route for a road for J. Edward Chase, through the lands of F. F. Triplett and Thompson Javins, the road as shown by Chase papers through Triplett's land on the edge of his yard and on the line of T. Javins and John H. Broders, on Javins' side of the land to the R. Road and taking from Triplett about one and a half acres of land for which I assess the damages at fifty dollars--and about one and a quarter acres from Javins, for which I assess at twenty five dollars."

The application or petition for the establishment of the road, if in writing, was not found in the clerk's office of Fairfax county. However, there is attached to the report a rough sketch designating the road with its southern terminus on the lands of F. F. Triplett, and its northern terminus in Rolling road.

At the May term, 1858, this report was approved and the road established, as appears from the following order:

"In the matter of the application of J. Edward Chase for a road--

"The Court having considered the report, doth hereby establish the road according to the report of the Commissioner and the endorsements thereon by Thompson Javins & F. F. Triplett, & order that the width of said road shall be reduced to twenty feet. And that forty dollars be assessed upon the County for said Thompson Javins as his damages (the said F. F. Triplett waiving all claim to damages) and that the costs of this proceeding be levied upon the County."

Subsequently, another order was entered on the same subject matter: "F. F. Triplett is appointed Surveyor of the precinct of roads established on the application of J. Edward Chase & the following persons assigned to work thereon, to-wit: F. F. Triplett, J. Edward Chase, Uriah Dove, & Charles Quander."

The foregoing excerpts from the minutes of the county court of Fairfax reveal that every step required by pertinent statutes (Code 1849, Ch. 52), to establish a public road was taken. The court exercised the discretion given it by section 5 of this chapter (see Code of 1873, chap. 52, sec. 22), which provides "Every road shall be thirty feet wide, unless the court order it to be less, " and reduced the width from thirty to twenty feet.

The county court was empowered to condemn private property for public use. Acting on this authority, it seized the lands of Triplett and Javins, determined and assessed the amount of damages sustained by them, and on the waiver by Triplett of any damage to him, ordered the damages to Javins to be paid out of public funds. No court has power to condemn private property for private use. The mere fact that damages for the seizure of the Javins land was ordered paid out of county funds is conclusive proof that the court intended to, and did, establish the route in question as a public road.

The record chain of title of neither appellant nor appellees was traced to the respective owners of the land in 1857 and 1858. However, oral testimony was introduced, without objection, tending to prove that the 4.64 acres fronting on the Triplett road, now owned by appellant, was a part of the land formerly owned by Thompson Javins, and that the 1.64 acres of land, now owned by appellees, was a part of the land formerly owned by F. F. Triplett. It is clear from the evidence that so much of the present location of the Chase or Triplett road extending approximately 1, 682 feet northward from the Triplett land across the old Javins land to the county road is the identical location of the route established in 1858, and that the main public highway formerly called the Rolling road, is now designated as the Franconia road.

Appellees contend that the road in question is a private way, because (1) it was conveyed to them by deed as such, and (2) that the road was abandoned as a public way.

Appellees acquired the 1.64 acres of land upon which they reside by deed from Nannie M. and A. E. Francis, bearing date June 20, 1944. This deed purports to convey to the grantees the right to use the Chase or Triplett road, in the following language: "Together with a right of way over the Chase outlet road; together with the Triplett heirs and purchasers only, the said road being a private road to be used solely by Triplett and Chase purchasers and their assignees."

No other record evidence was introduced tending to show how or in what manner Nannie M. and Albert E. Francis acquireda right to convey an interest in the Chase or Triplett road.

One of the exhibits filed is a deed bearing date July 19, 1943, from Albert E. Francis and Nannie M. Francis to the Virginia Realty Company, Inc. This deed purports to convey to the grantee the right to use the Triplett road in the following language: "There is conveyed as appurtenant to the above tract of land a right of way from this same to the County road, which right of way was ordered to be surveyed by the County Court of Fairfax County at its October term 1867, and the report of Commissioner confirmed by this order entered May term 1868, across the land of Triplett and Javins from what was then the Chase property to the Rolling road of a width of 20 feet; this road has been in constant use as an appurtenance to the above tract of land from that time to the present, and particularly within the knowledge of the grantors hereof same has been used without interference or interruption for a period in excess of 22 years."

In the absence of evidence tending to...