2012

3232 Page Ave. Condo. Unit Owners Ass’n v. City of Virginia Beach

Supreme Court of Virginia

284 Va. 639, 735 S.E.2d 672

In February 2009, the City of Virginia Beach filed a petition for condemnation to acquire or confirm easements on the Condo Association’s property for public access and sand replenishment easements. The Association argued that the City could not seek condemnation and to quiet title in the same action. Trial court ruled that an ownership hearing would be heard after the just compensation trial. The jury valued the easements at $152,000. After hearing evidence of the City’s police, sanitation and maintenance of the area of the easements for thirty-five years, the trial court ruled that the City had acquired easements by implied dedication, and gave the jury award to the City. Supreme Court affirmed, holding that the City was not condemning property it already owned, nor admitting it did not own the property. Rather, Va. Code § 25.1-222 states that where a controversy exists among the parties as to ownership of the property, the ownership rights of the respective parties will be determined as part of the condemnation proceeding. Therefore, the trial court was required to hear the ownership issue as part of the condemnation. Further, long use by the public of the property with the assent of the owner will justify the presumption of dedication to the public, and has continued for so long that interruption might materially affect private rights and public convenience. The evidence was sufficient to prove implied dedication and acceptance by the City.

Dissent by Chief Justice Kinser joined by Justices Millette and Mims, stating §§ 25.1-222 and 241 do not contemplate ownership claims asserted by the condemnor. The statutes used by the majority were never intended to be used by a condemnor to have the capacity to condemn private property while at the same time claiming ownership of the property. Also, there can be no dedication of the easement as there was no offer to donate, and there was nothing to accept. If the use by the public is not hostile to the interests of the landowner, then permissive use by the public is no more than a license.

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