Martin v. Norfolk Redevelopment and Housing Authority

• Decision Date: 08 March 1965
• Citation: 140 S.E.2d 673,205 Va. 942
• Court: Virginia Supreme Court
• Parties: H. Dinwiddie MARTIN and Mariam W. Martin v. NORFOLK REDEVELOPMENT AND HOUSING AUTHORITY et al.

Page 673

140 S.E.2d 673

205 Va. 942

H. Dinwiddie MARTIN and Mariam W. Martin v. NORFOLK REDEVELOPMENT AND HOUSING AUTHORITY et al.

Supreme Court of Appeals of Virginia.

March 8, 1965.

Howard I. Legum, Norfolk (Fine, Fine, Legum, Schwan & Fine, Norfolk, on brief), for plaintiffs in error.

Francis N. Crenshaw, Norfolk (Baird, Crenshaw & Ware, Norfolk, on brief), for appellee, Norfolk Redevelopment and Housing Authority (S. W. McGann, Jr., Asst. City Atty., on brief), for City of Norfolk.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.

BUCHANAN, Justice.

The principal question in this case is whether the appellants, H. Dinwiddie Martin and Mariam W. Martin, have a reversionary interest in a tract of land formerly known as Taylor Park, in the city of Norfolk.

The appellants are the heirs of Joel W. Martin and others, grantors in a deed dated April 15, 1922, which conveyed to the city of Norfolk all the right, title and interest of the grantors by reason of their ownership of No. 314 York street, in Norfolk, in the land lying between a line parallel with and two hundred feet north of York street on the south and Smith Creek on the north, and between Yarmouth Street on the east and Dunmore street on the west.

As consideration for this deed, in addition to five dollars in cash, the city agreed and covenanted (1) to open a street extending from Yarmouth street on the east to Dunmore street on the west; (2) to obtain, simultaneously with the Martin deed, similar conveyances from the owners of all the other properties fronting on the north side of York street, between Yarmouth and Dunmore streets, for their interests in the same parcel of land; and (3) that it would bulkhead and fill in the land so acquired and construct a park or playground thereon for the benefit of the citizens of Norfolk; 'and the City of Norfolk hereby agrees that the said land shall not be used for any other purpose, and that no buildings shall be erected thereon, except such as are necessary and incidental to the use of the park, or play-ground.'

The concluding paragraph of the Martin deed stated that it was mutually understood between the parties 'that unless the city of Norfolk complies with its said covenant and conditions, as above set forth, within twenty-eight months from the date hereof, then this deed shall become null and void.'

It is not questioned, but is conceded by the appellants, that the city obtained deeds for the interests in said parcel of land from all the other described owners on York steet, all dated April 15, 1922, and containing the same provisions as the Martin deed; and that the city opened the street and constructed the park (naming it Taylor Park), all as covenanted in the deed and within the twenty-eight months therein specified.

Appellants say in their brief that the 'City of Norfolk complied with the conditions set forth in the deed until September 19, 1960.'

The park was constructed and maintained by the city until a redevelopment project, as defined in § 36-49 of the Code, was undertaken, with the approval of the city, which involved the abandonment of Taylor Park and the building and operating of another park in the same area in its place.

Pursuant to that plan the city, by deed dated September 19, 1960, conveyed said Taylor Park property to Norfolk Redevelopment and Housing Authority, one of appellees, hereinafter referred to as the Authority, a corporation and political subdivision of the Commonwealth, created by and operating under the Housing Authorities Law, Title 36 of the Code, as amended.

In October, 1963, the Authority instituted this proceeding by a petition to condemn and acquire the interest of the public, if any, in said property by reason of the provision in the above-mentioned deeds to the city from Joel W. Martin and others, which contained the provision quoted above, that the land conveyed thereby 'shall not be used for any other purpose' than a park or playground, under which provision the appellants, as heirs of the grantors in the Martin deed, claim a reversionary interest.

The Authority made defendants to its petition the city of Norfolk 'as Trustee for any of its citizens having an interest in the aforementioned property'; the heirs, devisees and assigns of the grantors in the Martin deed, and others similarly interested whose names and addresses were unknown. Process was issued and served, an order of publication was executed and the appellants filed their answer alleging that they were the heirs of the grantors in the Martin deed and stating that 'they do not know at this time whether they do or do not have any interest in the real estate, which is being condemned,' but that if they do then they ask the court to award them reasonable compensation for their interests.

The city answered and denied that it held as trustee for the benefit of any of its citizens any interest in said property, or that any interest had reverted to any other person.

By order entered December 4, 1963, commissioners were appointed and directed to ascertain what would be just compensation for any outstanding interest in said land and to award damages, if any, resulting to the defendants or other persons, and December 10, 1963, was designated as the time for the commissioners to meet. On that day appellants filed a plea to the jurisdiction of the court, in which they alleged that only a court of equity had jurisdiction to determine whether they had a reversionary interest.

On December 10, 1963, the appellants made a motion for the court to refrain from hearing the question of reversionary interests until the commissioners returned their award, whereupon the court heard evidence offered by the parties and then entered its decree overruling appellants' plea and motion and adjudicating that no reversionary interest existed in any of the defendants by virtue of the city's abandonment of the property for park and playground purposes, and that the fee simple title to said property was vested in the petitioner under the city's deed to it, 'subject only to any interest which the City of Norfolk may have therein as trustees for the benefit of any of its citizens by virtue of its covenants to use the same as a park or playground.'

Thereafter the commissioners reported that no compensation was required for the land described in the petition, and that the...