Scott v. BURWELL'S BAY IMP. ASS'N
708 S.E.2d 858
Va.2011Background
- This Court previously held Poole’s 1925 order created a non-transferable license, not a full property right, and remanded to consider adverse possession or prescription.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for adverse possession/prescription | Bracey asserts mixed law/fact review; de novo on law with deference to trial court’s factual findings. | Burwell's Bay argues mixed standard; uphold trial court if findings are not plainly wrong. | Mixed de novo/factual; appellate reviews de novo on law, with deference to trial court on facts. |
| Elements and sufficiency for adverse possession of riparian rights | Bracey claims exclusive, continuous possession for 15 years with actual, hostile use. | Bracey failed to show continuous, exclusive possession post-2003; tacking not proven. | Not proven by clear and convincing evidence; no exclusive, continuous claim. |
| Tacking period and predecessor rights | Time from prior pavilion owners should be tacked to Bracey reliance; continuity shown by public/open use. | Tacking not allowed for right to adverse possession where predecessors did not assert exclusive rights; pre-2003 periods inadequate. | Tacking not established; prior occupancy did not prove adverse, exclusive use. |
Key Cases Cited
- Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 (1958) (actual, hostile, exclusive, continuous possession required for adverse possession)
- Leake v. Richardson, 199 Va. 967 (1958) (elements and concept of adverse possession; land under water special considerations)
- Harkleroad v. Linkous, 281 Va. 12 (2011) (clear and convincing evidence required for adverse possession/prescription)
- McNeil v. Kingrey, 237 Va. 400 (1989) (tacking requires when periods begin; not allowed to add non-adverse periods)
- Clatterbuck v. Clore, 130 Va. 113 (1921) (early articulation of tacking and possession principles)
- Calhoun v. Woods, 246 Va. 41 (1993) (tacking requires same claims of possession; prior occupancy must be adverse)
- Hafner v. Hansen, 279 Va. 558 (2010) (prescription time frame for easement; clear and convincing standard applied)
- Quatannens v. Tyrrell, 268 Va. 360 (2004) (mixed standard of review for possessory claims; de novo on law, defer to trial on facts)
- Taylor v. Commonwealth, 102 Va. 759 (1904) (riparian rights and public trust concepts; navigation rights and duties)