Williams v. Kendrick

• Decision Date: 04 March 1946
• Citation: 37 S.E.2d 8,184 Va. 1076
• Court: Virginia Supreme Court
• Parties: WILLIAMS. v. KENDRICK et al.

37 S.E.2d 8

184 Va. 1076

WILLIAMS.

v.KENDRICK et al.

Supreme Court of Appeals of Virginia.

March 4, 1946.

Appeal from Circuit Court, Washington County; W. H. Robertson, Judge.

Suit by C. E. Kendrick and another against T. F. Williams involving a disput ed right of way. From an adverse determination, T. F. Williams appeals.

Reversed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, and SPRATLEY, JJ.

Fred C. Parks, E. W. Potts, and T. L. Hutton, all of Abingdon, for appellant.

Thomas C. Phillips, of Abingdon, for appellees.

HOLT, Justice.

Under review is a disputed right of way.

A. W. Aston was an owner of much land in Washington county, among which was a valuable farm near Meadowview, formerly owned by Laura J. Stuart. In 1923, he found it desirable or necessary to sell a portion of his holdings and had this Meadowview farm surveyed and platted. That plat was duly recorded. The farm itself was divided into numbered lots. A sale at public auction was set for August 18, 1925, was widely advertised and was had on that date. Such sales as might be made were to be confirmed by the owner and no sales not so confirmed were to take effect, and that the auctioneer stated. There were actually sold to E. M. Kendrick, and confirmed, Lots Nos. 29 to 33, inclusive.

The deed from Aston to Kendrick bears date August 18, 1925, was acknowledged on September 21, 1925, and forthwith recorded. This is a description of the land conveyed:

"Beginning at a point in the Southern line of the Norfolk and Western Railway and E. M. Kendrick's other lands, thence with the line of said Kendrick's other land S 27³/₄ E 1440 ft. to a stake, corner to said Kendrick's other land, thence with said Kendrick's line S 63¹/₂ W 726 feet to a stake on Kendrick's line, thence with said Kendrick's and H. L. Browning's line S 24 E 1787 feet to a stake, Southwest corner of land hereby conveyed, thence N 57% E 916% feet to a post in Aston's line, thence with said Aston's line N 68¹/₂ E 445¹/₂ feet to a stake in said Aston's line, Southeast corner of land hereby conveyed, thence N 38¹/4 W 1004 feet to the center of the Southern terminus of a proposed twenty foot road, shown on recorded map, thence with the middle of said twenty foot road and the Western line of Wiley Darnell N 34¹/₂ W 1570 feet to a point in the middle of said twenty foot road, thence with themiddle of said road N 28 W 200 feet to a stake, Southwest corner of Lot No. 32 on said map, thence with Southern line of Lots Nos. 32, 31 and 30 N 70 E 522¹/₂ feet to the Northwest corner of W. A. Mc-Cracken's lot, thence with McCracken's Northern line N 62¹/₂ E 163 feet to a stake, Southeast corner of Lot No. 29 on said map, thence N 30 W 375 feet to a stake in the Southern line of the Norfolk and Western Railway, thence with said Southern line of the Norfolk and Western Railway S 71 W 818¹/₂ feet to the beginning, containing Fifty Seven acres (57 A.), be the same more or less."

The consideration there expressed was $7,187.50, of which $2,687.50 was paid in cash, the balance to be paid in three equal annual installments of fifteen hundred dollars, for which a vendor's lien was retained.

On the same day, August 18, 1925, there was sold to Wiley Darnell a tract of 9.85 acres, made up of lots 27 and 28 on this plat. The land so conveyed is thus described:

"Beginning at a stake, N. W. corner of W. A. McCracken's land; thence with line of said McCracken, D. G. Ritchie, the Colored Cemetery and Walker Sanders S 24¹/₂ E 946 feet to a stake, corner to Sanders and A. W. Aston, thence S 63¹/₂ W 358 feet to the center of a twenty foot (20 ft.) road, thence with the center of said road, N 34% W 830 feet to a stake in the center of said road, thence N 28 W 200 feet to a stake in the center of said road, Southwest corner of Lot No. 32 in map of a portion of the Laura J. Stuart farm, thence with the southern lines of Lots Nos. 32, 31 and 30 on said map running N 70³/₄ E 522¹/₂ feet to the beginning, containing nine and eighty-five hundredths acres (9.85 A.), be the same more or less."

From which it is plain that the proposed 20-foot road, bounded on the southeast by Lots Nos. 32, 28, 27 and 37 and on the northeast by Lot 33, is definitely established. This 20-foot proposed road continues to the southeast until it reaches a 30-foot road marked on this plat, which 30-foot road runs across the unsold portion of the Aston farm in a northeasterly direction. One of the purposes of this suit is to open this 30-foot road which on said map touches Lot 33, bought by Kendrick.

Before the sale to Kendrick was confirmed and before a deed to him was delivered, Aston was asked and replied:

"Q. When you confirmed the sale was any statement made to the purchaser as to how the sale was confirmed? If so, what statement was made? A. Yes. I don't remember the statement verbatim, but we were naturally--I was, and I will say we, too, because I had talked the matter over closely with Cumbow so as not to have any possibility of any mistakes as to the rights of way that might be provided, or mistake as to any road--what I had in mind then, and had in mind to make clear, was that I was on guard to protect myself against any possibility of having any rights of way through the land that was left, and I remember instructing Cumbow to make the announcement clearly along that way, but I don't remember his wording of it."

Not only was this statement made to this purchaser when his sale was confirmed, but convincing reasons also for the reservations were pointed out. Kendrick said at the sale, as an inducing cause, attention was called to the roadways which appeared on the plat, particularly to the 30-foot road marked out but not improved which led from the south end of the 20-foot proposed lane. Kendrick does not deny that such a statement was made to him when the deed was delivered. When that deed was delivered, he saw that nothing was said about the right of way through the unsold lands but "thought" that right was given.

Counsel for Kendrick relies upon Code, section 5219, which tells us the effect of recording plats. Sections 5217 and 5218 show that the matters there dealt with are lots, etc., laid out in cities and towns, but this case does not turn upon Code sections.

The roadway. laid out on the plat of 1925 is a farm roadway across a portion of the farm which the plat itself shows was not sold.

This was the situation in 1925, and it continued unchanged until 1929. In October of that year, Aston had platted that portion of the Stuart farm "Not Sold, " together with lands jointly owned by him and his ...