Bradford v. Nature Conservancy

Decision Date09 September 1982
Docket Number791297 and 791320,Nos. 791288,s. 791288
Citation294 S.E.2d 866,224 Va. 181
PartiesArchie L. BRADFORD, et al. v. The NATURE CONSERVANCY, et al. The NATURE CONSERVANCY, et al. v. Archie L. BRADFORD, et al. COMMONWEALTH of Virginia v. Archie L. BRADFORD, et al. Record
CourtVirginia Supreme Court

Herbert H. Bateman, Newport News (Jones, Blechman, Woltz & Kelly, P.C., Newport News, on briefs), for Bradford, et al. in No. 791288.

Daniel Hartnett, Accomac, Stewart A. Baker, Washington, D.C. (Henry B. Weaver, Alice L. Mattice, Washington, D.C., Ayres, Hartnett & Custis, Accomac, Steptoe & Johnson, Washington, D.C., on brief), for The Nature Conservancy, et al. in No. 791288 and 791297.

Herbert H. Bateman, Newport News, James E. Moore, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., Jones, Blechman, Woltz & Kelly, P.C., Newport News, on briefs), for Bradford, et al. in No. 791297.

R. Gordon Smith, Joseph L. S. St. Amant, E. Duncal Getchell, Jr., Richmond, on brief, for the Nature Conservancy and amicus curiae Virginia Land Title Ass'n, Inc., et al.

James E. Moore, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on briefs), for Com., in No. 791320.

Daniel Hartnett, Accomac, Stewart A. Baker, Washington, D.C., Herbert H. Bateman, Newport News (Henry B. Weaver, Alice L. Mattice, Washington, D.C., Ayres, Hartnett & Custis, Accomac, Steptoe & Johnson, Washington, D.C., Jones, Blechman, Woltz & Kelly, P.C., Newport News, on briefs), for Bradford, et al. in No. 791320.



In this appeal, we determine the various rights and privileges of owners and other users of Hog Island. This task requires us to trace the history of Virginia's land-grant statutes back to the 1700's.

Hog Island is one of a number of barrier islands located off the eastern coast of Virginia. It is approximately six miles long and ranges in width from one mile near the northern end to an estimated 300 yards at the southern end. The island has been greatly affected over the years by the forces of nature. Since 1930, the dimensions of the two ends of the island have virtually reversed themselves.

The island is characterized by three distinct ecological features. The eastern portion consists of sandy beaches. These beaches lead to a series of sand dunes and grassy areas, commonly known as the uplands. Adjacent to the uplands on the west side of the island, extending towards the mainland, are marshes.

Hog Island was well settled by the early 1800's. The majority of residents was located in the village of Broadwater, near the southern end of the island. By 1900, this village had a population of 250. Most islanders made their living from the wildlife found in the area. In the 1930's, a series of storms swept Broadwater into the Atlantic Ocean, and by 1942 all the inhabitants had left the island.

The federal government built a lighthouse on the southern end of Hog Island in 1851 and added a Coast Guard Station in the 1920's. A road led from a landing at Swan Gut past the station to Broadwater and the beach. In 1936, the government built a second station at the northern end of the island. A road was built leading from this station in an easterly direction towards the beach. A north-south road ran the length of the island, through the upland, connecting the other two roads. (These roads shall be referred to respectively as the cross-island, beach-access and north-south roads.) Despite the presence of the north-south road, the preferred route of travel between the ends of the island was along the beach, which is suitable for use by vehicles during low tide.

Some time after World War II, the Coast Guard abandoned both stations. In 1966, the northern station was conveyed to the Machipongo Club, a group of sportsmen.

In 1970, the Nature Conservancy, a nonprofit organization chartered in Washington, D.C., began to acquire property on Hog Island and other barrier islands. The Conservancy purchased large tracts on the northern and southern ends of the island and two smaller tracts in the middle. Title to one parcel in the northern tract can be traced to a land grant from the Commonwealth in 1901, and one of the small tracts in the middle of the island can be traced to a land grant in 1915. The Conservancy is unable to trace the title of its other properties to original grants.

The avowed purpose of the Conservancy is to preserve the barrier islands in their natural state by limiting intrusions by man. The restrictions placed on Hog Island by the Conservancy led to a dispute with the Machipongo Club. The Conservancy claimed the Club had no right to use the roads on the island or to hunt or fish on any of the Conservancy's properties, including the beach and marshes. The Conservancy brought suit in federal court. Nature Conservancy v. Machipongo Club, Inc., 419 F.Supp. 390 (E.D. Va. 1976), rev'd in part, 571 F.2d 1294, modified on rehearing, 579 F.2d 873 (4th Cir.), cert. denied, 439 U.S. 1047, 99 S.Ct. 724, 58 L.Ed.2d 706 (1978). The Fourth Circuit held the Club had no right to use the roads on the island, but stayed a determination regarding the beaches and the marshes because of the pendency of the instant suit. 579 F.2d at 876.

The present suit is a declaratory judgment action brought by Archie Bradford and 17 other complainants (collectively, Bradford) who either own land on the island or have hunted, fished and fowled there. (The Commonwealth later intervened as a plaintiff.) They asked the trial court to declare their right to carry out these activities and to use the disputed roads. The court held the Conservancy had no title to the marshes on the island. Further, it ruled that while the Conservancy had title to some portions of the beach, these areas could be used by citizens of the Commonwealth for hunting, fishing and fowling. Finally, the court held the beach-access road and the beach, but not the north-south road, had been dedicated by the landowners as public ways. 1 The court issued an injunction consistent with these rulings and all parties have appealed.


In 1888, the General Assembly passed an act, now codified as Code § 41.1-4, providing that:

All unappropriated marsh or meadowlands lying on the Eastern Shore of Virginia, which have remained ungranted, and which have been used as a common by the people of this State, shall continue as such common, and remain ungranted. Any of the people of this State may fish, fowl, or hunt on any such marsh or meadowlands.

Relying on this section, the trial court ruled that any grants of marshes on the island made by the Commonwealth after 1888 were void, and title to the land remained in the Commonwealth, for use by the people as a common. The court construed "meadowlands" to mean the same as "marsh," and therefore did not extend its ruling to include any of the uplands on the island.

The Conservancy makes a three-pronged attack on this holding. It first argues the plaintiffs are barred from challenging the validity of the land grants. Secondly, it argues the statute is inapplicable, since the marshes were not used as a common in 1888. If applicable, the Conservancy contends the statute is unconstitutional. In turn, Bradford and the Commonwealth argue the court erred in not extending the application of the statute to the uplands. We reject all these arguments and affirm the ruling of the trial court respecting the marshes.

The Conservancy relies on Code § 8.01-238 2 and 41.1-6 3 to buttress its argument that the plaintiffs cannot now challenge the land grants in its chain of title. It argues that under § 8.01-238 any such challenge must be brought within ten years of the date of such grant. It further contends that Code § 41.1-6 ratifies all grants previously made, even if unlawful at the time they were issued. Both arguments are without merit.

Code § 8.01-238 only applies to bills in equity to repeal grants. It is therefore inapplicable to the present suit, a declaratory judgment action to determine the rights of the parties. Moreover, because the statute does not, by its express terms, apply to the Commonwealth, it cannot bar an action by it. Code § 8.01-231. For these reasons, the suit is not barred by the statute of limitations.

The Conservancy argues Code § 41.1-6 ratifies all land grants made by the Commonwealth. By its terms, however, the section only applies to grants issued by the State Librarian, who only held the power to issue grants between 1948 and 1954. This section, enacted in 1966, applies only to grants made during that time.

The Conservancy correctly argues the 1888 statute only applies to land used as a common. Powell v. Field, 155 Va. 612, 155 S.E. 819 (1930). It argues "common" has a narrow legal definition and the evidence fails to support a finding that the marshes on Hog Island were used as a common within the meaning of the statute.

We discussed the meaning of the word "common" in Miller v. Commonwealth, 159 Va. 924, 166 S.E. 557 (1932). There, we said land can become a common in one of two ways. The first, inapplicable here, is for a government to specifically designate land for that purpose. Id. at 948, 166 S.E. at 565. The second is when land has been "used by the people as a common and come to be recognized as such." Id. See also French v. Bankhead, 52 Va. (11 Gratt.) 136, 166 (1854).

The trial court heard testimony from a number of elderly people knowledgeable about the history and traditions of Hog Island. Based on their associations with others much older than they, these witnesses related that for many years prior to 1888 the marshes had been used by the public at will for fishing, fowling and hunting. Indeed, this had been the primary source of livelihood for the island's inhabitants for generations. Moreover, the island was used not only by its inhabitants, but by people from other parts of the Commonwealth and nation. As a...

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