Volume 5 Number 1



Title Tips by Tute

Volume 5, Number 1

Dear Readers: 

    Tute is about to quote Christian scripture. If you should find this offensive, please skip this portion of the column, and accept, in advance, my apologies.

    Once again, deadline snuck up on Tute, leaving this over-extended author bereft of topics for a column. However, as Tute rushes around town, listening to holiday carols and right wing talk radio programs on the radio, it occurs that this anniversary of the birth of the Christ does provide certain topics that, if stretched far enough, may apply to title examination.

    Virtually every school child is familiar with the story of the birth. Although Tute finds it hard to credit the left wing targets of the right wing radio hosts with the absolute lack of common sense the radio reports; it is possible the story has become such an urban legend that it bears repeating.

    The basis of the Nativity story appears in the Christian New Testament, in the Book entitled Luke, second chapter, verses 1-7. 

Now in those days a decree went out from Caesar Augustus to register all the empire for taxes. This was the first registration, taken when Quirinius was governor of Syria. Everyone went to his own town to be registered. So Joseph also went up from the town of Nazareth in Galilee to Judea, to the city of David called Bethlehem, because he was of the house and family line of David. He went to be registered with Mary, who was promised in marriage to him, and who was expecting a child. While they were there, the time came for her to deliver her child. And she gave birth to her first-born son and wrapped him in strips of cloth and laid him in a manger, because there was no place for them in the inn.1

(For the record, Tute is somewhat conservative, and thus places no credence in any politician's statement that Joseph and Mary were "homeless" in the modern sense of the word. They were called to register for a census, so they could be taxed, and their hotel reservations got messed up. Nor does it appear that Joseph was unemployed, rather he appears to have been a sole proprietor or entrepreneur - specializing in carpentry. It could be there are some elements of our world that would prefer that all self-employed persons be designated as unemployed, but Tute is not one of them. Since confession is supposed to be good for the soul, it is true that during some of the "bad years" for mechanics' lien claims, Tute did wish more carpenters were unemployed.)

    How, Tute asked, did Joseph and Mary get from Nazareth, a small town near Jerusalem, to Bethlehem? According to all the stories I've heard, they walked (well, OK, Mary got to ride a donkey), along one of the roads built by the Roman Empire. Part of the services for which taxes were due.

    Which, (finally, at last! I can hear you saying) brings us to the topic of title to streets and highways. What if that road ran through Virginia? What if that road were closed? What would the title examiner be expected to find? How would the title be reported?

    The earliest materials available to Tute date only to the late 1800s. This is comparatively recent, as far as the history of the Commonwealth is concerned, but where the author speaks of prior practices, I will attempt to incorporate those references. The primary source for the following paragraphs is Volume I, INSTITUTES OF COMMON AND STATUTE LAW, by John B. Minor, published originally in 1882 (3rd Edition, corrected and revised) pages 132 through 137.

    The power to establish or alter a road was within the jurisdiction of the County Court, to be exercised at its discretion, upon its own motion or upon the application of individual landowners. The County Court would, after receiving an application, appoint one or more commissioners of roads, or three or more viewers, to view the ground and report to the court the conveniences and inconveniences that will result, as well to individuals as to the public, if such road shall be as proposed. The Commissioner or viewers were to report specifically whether the proposed route would invade any yard, garden or orchard, and any other facts that, in their opinion, would be useful to the Court in determining its judgment. Other specific information required included a comparison of the route proposed with other routes, the reasons for preferring one or the other, the names of the landholders affected, which ones would require compensation and the probably amount, and return a map or sketch of the route. They were authorized to hire a surveyor.

    After receiving the report, and assuming the Court did not disapprove of the road based on that report, the Court would summon the landowners concerned to show cause against it; and then, if the court has enough before it to fix upon a just compensation to them, and they are willing to accept it, the Court could determine the matter without further proceedings. If there was no agreement with the landowners at that stage, the court would appoint five disinterested free-holders (designated commissioners) to ascertain just compensation.

    These commissioners would meet on the land in question and determine the just compensation for the land to be taken and for the damage to the residue of the tract beyond the peculiar benefit which will be derived in respect to such residue from the road (this appears to be a damage above the benefit derived sort of analysis). If the Commissioners awarded "not more than that previously proposed by the court," the landowner paid the costs of the commissioners (this would appear to limit the number of appeals from the initial order unless the landowner was truly affronted by the offer of compensation).

    If the court made a finding the road was for private convenience, it could condition establishment of the road on the benefited landowner paying for the costs of the proceeding, the costs of construction, and the costs of maintenance. If the cost of construction, alteration or repair would exceed $30.00, the court was to certify the cost to the County Board of Supervisors, who could over-turn the court decision by a two-thirds vote NOT to fund the work.

    The right acquired by the public as a result of this process was a right of passage (an easement). The freehold, and all of the profits still belonged to the landowner. If it is unknown from which of two adjacent proprietors a highway was at first taken, or if the highway be the boundary between them, they are understood to own to the center.

    Personal experience indicates that not all the orders of the early County Courts, and their municipal counterparts, the Corporation Courts, dealing with the creation of roads, were recorded in the deed books as they could have been. There were general statutes requiring recording of orders and decrees in some condemnation cases, see, for example, 1091 in the Code of 1887, dealing with recording and indexing decrees in private condemnations in the deed books, and 2510 in the Code of 1887, dealing with partition, assignment of dower, and recovery of land under judgment or decree.

    Tute has often heard references to the Byrd Act, as if that were a solution to title issues. I don't think it helps. Based on some discussions with surveyors, and based on their experience with the highway department, Tute believes the Byrd Act was an administrative rule, later incorporated into statute, that would allow state road officials to expend public funds on roadways of, shall we say, "dubious origin." It does not speak to the title of roads at all, but presents an evidentiary presumption of when a "way" may be deemed to be a "public" right of way. The statute reads:

When a way has been worked by road officials as a public road and is used by the public as such, proof of these facts shall be prima facie evidence that the same is a public road. And when a way has been regularly or periodically worked by road officials as a public road and used by the public as such continuously for a period of twenty years, proof of these facts shall be conclusive evidence that the same is a public road. In all such cases the center of the general line of passage, conforming to the ancient landmarks where such exist, shall be presumed to be the center of the way and in the absence of proof to the contrary, the width shall be presumed to be thirty feet. Va. Code Ann. 33.1-184.

    Another more modern method of creating streets is through showing the streets on a subdivision plat. The first subdivision act, effective March 5, 1833, provided that "the acknowledgment and recording of such plat shall operate to create a public easement or right of passage over such portions of the premises platted, as is set apart for streets or other public use . . . ". ( 2510a, 1904 Code; 5217 to 5222, 1942 Code) (Note: no governmental approval was required)

    There were a number of amendments to the original act:

1918 a plat act applicable only to cities with a population of more than 100,000 and areas within ten miles. ( 5222a to 5222f, 1942 Code)
1924 an act applicable to cities with a population of more than 150,000 and areas within five miles ( 5222g to 5222o)
1928  an act applicable to cities with populations of less than 100,000 and areas within three miles ( 5222p to 5222x (not applicable to Arlington County)
1930  act applicable to all incorporated cities and towns and areas within two miles ( 5222y to 5222gg) (also not applicable to Arlington County)

After 1922, each of these acts required governmental approval of the plat, and if the plats were recorded in compliance with the act, vested fee simple title in the Commonwealth of Virginia. In 1946, another amendment operated to vest title in the local city or county.

    The recordation of an approved subdivision plat under today's statutes operates to vest the municipality with fee simple title to the roadway, 15.2-2265, former 15.1-478, Code of Virginia.

    The original plat act provided for alternate methods of vacation of the streets. They could be vacated by the owners, provided the vacation did not abridge or destroy the rights of other owners in the subdivision. The alternative was to close the street in the same manner as a county road. This required an application for closing the street submitted to the governing body, the posting of notices, an ordinance, and a right of appeal of the decision to the Circuit Court. As an owner never knew when a neighbor would object, the latter course provided the greatest security.

    The amendments were more restrictive. They provided that vacation could be had only with the consent of all the owners of lots on the plat, and through no other method.

    In 1947, the legislature adopted a vacation procedure applicable to all cities and towns. The procedure required application to the governing body and allowed a right of appeal to the circuit courts. (Repealed 55-176) Another amendment in 1950 permitted vacation by an instrument of all the adjoining lot owners, and approved by the governing body, provided the vacation did not destroy the right of other owners in the subdivision. (Repealed 55-176.1 and 55-176.2)

    Currently 15.2-2006 (formerly 15.1-364) provides the method of alteration or vacation of streets in cities and towns. The governing body may condition the vacation upon the purchase by the applicant. Va. Code Ann. 15.2-2008 (former 15.1-366).

    Subdivision plats may be vacated by following the procedures set out in 15.2-2272 (former 15.1-482). Subdivision plats could also be vacated by the procedures in effect at the time they were recorded, even if the sections setting out that procedure was repealed. Former Va. Code Ann. 15.1-484. Under the current statutes, a plat may be vacated using 15.2-2272, whether or not the plat was created using the current procedures. 

    The execution and recordation of an ordinance of vacation shall operate to destroy the effect of the instrument which created the governing body's interest so vacated and to divest all public rights in and to the property and vest title in the streets, alleys, easements for public rights of passage, easements for drainage, and easements for a public utility as may be described in, and in accordance with, the ordinance of vacation. 15.2-2270. Notice that this statute does not deal with title unless the ordinance specifically deals with that issue.

    The recordation of the instrument as provided under provision 1 of 15.2-2272 or of the ordinance as provided under provision 2 of 15.2-2272 shall operate to destroy the force and effect of the recording of the plat or part thereof so vacated, and to vest fee simple title to the centerline of any streets, alleys or easements for public passage so vacated in the owners of abutting lots free and clear of any rights of the public or other owners of lots shown on the plat, but subject to the rights of the owners of any public utility installations which have been previously erected therein. If any street, alley or easement for public passage is located on the periphery of the plat, the title for the entire width thereof shall vest in the abutting lot owners. The fee simple title to any portion of the plat so vacated as was set apart for other public use shall be revested in the owners, proprietors and trustees, if any, who signed the statement required by 15.2-2264 free and clear of any rights of public use in the same. 15.2-2274.

    The instrument vacating the street should (and as in the section just quoted, must) be recorded in the land records in order to provide notice of the termination of the public rights.

    Best wishes for the New Year, Decade, Century and Millennium, and may we finally bring to Earth, Peace, and Good Will toward men (in the politically correct sense of "all" of Humanity, including women, children, and persons who think they've been abducted and implanted with intergalactic DNA).


1 The Bible, New Testament, Luke 2:1-7, New English Translation, Copyright © 1997, 1998, 1999 by Biblical Studies Press, L.L.C. and the authors. All rights reserved. Available on the internet at: http://www.bible.org. For the more traditionalist, the King James version can be found at http://www.bprc.org/bible/KJV/Luke/2.html, and for the purists, the 1611 text of the King James version is found at http://users.iafrica.com/i/im/imre/luke.html.

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Webmaster's note:  The website for the 1611 King James version was not operating when I attempted to verify the link, so I have removed it.  As was the case with paper book publishing, bibles appear to enjoy a prominent position in internet publishing.  Some other sites found include:  The Blue Letter Bible, which primarily relies on the 1769 King James Version, but has alternatives to other translations at the same website; the Douay-Rheims Version, New Testament dates to 1582, Old Testament dates to 1609-1610; and the University of Virginia, which has a loaned version of the 1611 King James.

"Trust the computer industry to shorten "Year 2000" to Y2K. It was this kind of thinking that caused the problem in the first place."


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