judgment the the basis of our appeal i have two main reasons that this court should reverse and it's based on three separate and distinct issues two of them are tied into one of the reasons and then one follows the first issue involves the jurisdiction of the virginia circuit courts the second is diffuse ability of title and the third issue states got it free of these no your honor did not because i always meant it that one well your honor there was an easement at that point because in this goes to the second issue which is to diffuse ability of title at that time as we know the right time at the time that the united states was conveyed the property i made to you the commonwealth of virginia as we know a basic tenet of of real property is you cannot give more than you have the right but you cannot condemn but the petition for condemnation the whole statutory scheme in virginia is the petition defines the property to be taken then it goes to the commissioners commissioners review that the land taken the residue the property value the land taken and the diminution of value to the residue and the court makes the determination in value and even back in one hundred fourteen that region or supreme court was saying pretty clearly without an amendment  condemnation petition there is no right to ask for a different estate than that set forth in the petition so where is there evidence in this case that the petition for condemnation was amended to reflect  case law says an amendment to the petition or the consent of the parties accurate with that your honor i don't believe so no because i don't think the role of the court is to mess with the title the role of the court is to confirm the value well the report can only confirm the value as assessed by the commissioners and the commissioners were looking at the be simple the commissioners were not looking at the reserve decent there's nothing in the record that shows that the commissioners valued the property with this is meant isn't that correct that is correct you're wrong ok so how can then we find that when the commissioners valued the property and the port passed on the value of the property that there was any contemplation of these me you're saying just the hand written in early nation without an amendment to the petition in condemnation and without the condemnation commissioners being given the opportunity to evaluate the property with the nice man how how can that be now the court could just write in the margin whatever it wants and the process is totally circumvented it's not because by the court of german general jurisdiction entering that order it was subject to appeal at that time not and it was just the amount the condemnation takes place pursuant to the petition and the petition  did not show the east under the petition the title went to commonwealth without the east to the commonwealth conveyed it to the united states on may eighteenth without the  right no your honor i don't believe that this is made a team i read your entry didn't come in total month and a half later and i understand your honor but the statute that controlled says that it is subject t confirmation by the court the circuit court now i understand us the amount well your honor i understand but he wanted to somebody wanted to expand title that have to file a separate but the condemnation the right of condemnation is determined by the commonwealth it defines the take and then it goes and assess the value but the value of the court and the court approved the value but if the title didn't pass at that time to genya way back in may something's wrong because then you're saying the united states and get title that is exactly what i'm saying your honor and if i did they not get title there's a deed in here i understand that there's a deed your honor but that was subject was a defeasible title at that point and it was defeasible based it was not even a party to that prosy your honor they received all that they could receive and again all that the commonwealth could have given them at that time because the comment did not have a deed but the commonwealth did not actually own that property and the recorded deed has the exact same handwritten note in it therefore the commonwealth of virginia whether you want to admit it or not as to whether or not they had the authority to do so at that time the circuit court the original condemnation order the recorded chancery deed and the recorded  order all have the exact same handwritten margin in i'm sorry your eyes were reported here i believe that it is on page one twenty i believe it's on page one forty one here but but your honor the the supreme court of virginia has also been clear about the circuit court having jurisdiction over condemnation proceedings and if it is circuit court can affect evaluation it can disagree with the commissioners it can you know ask for a reevaluation all those things the circuit court can do but it can't add or subtract to the land on to the nation of your previous job do you have any cases in the virginia supreme court that says that the circuit court of general jurisdiction can add or subtract to the land defined by the petition in condemnation not in those words what i have your honor is that the case law from the supreme court along the lines of the chesapeake and western railroad company in the washington since ninety st louis railway company and and and that line of cases your honor it does not say what which you are asking me but the court never did that the court never added that was defined by the titian condemnation your honor i do not have that case and i'll tell you i think the reason i don't have that case your honors because what we're dealing with here in this case is a collateral  attack by its interpretation of court order nobody's saying that the well there could court season one second and then i want to hear your answer nobody's saying that that order isn't valid and nobody's saying that the order doesn't value the property  it's not an attempt to invalidate the order it's just saying what was the lawful scope of the order well your honor this is a this is an attempt to believe and validate or to consider void the original condemnation or because the original condemnation or specifically sets forth the property that was condemned that is what is a matter for record but if the role in the court is the value the property as defined in the condemnation  evaluated by the commissioners both as to the take and as to the residue and damages they are to then if the court performs another act and decides to take a little bit away you're saying that that is that's good for the ages just because the parties didn't appeal it yes your honor i believe that it is and i believe again i don't want going back to the united states and what the united states actually received what they received was the land minus the easement because the title at the time that it was convey was to feasible subject to the confirmation of the circuit court and what the search circuit court is that commonwealth and the sample to such extent as may be prayed for in the petition that's when the commissioners return which i think restricts the court's role good cause be shown against the commissioner's report this the same shall be confirmed by the court and further that upon such payment either to the person and title there to or into the court and confirmation of the report the title to the part of the land and to the other property taken for which such compensation is allowed shall be absolutely vested in the company in fee simple the keys core you getting to the part that helps well yes your honor the keys three sixty nine in conjunction nine hundred sixty nine is silent as to the nature of the title which best in the commonwealth it doesn't say as your honor pointed out it doesn't say whether it's indefeasible or defeasible title  forty three sixty nine says that absent title does not transfer until the the confirmation of the trial court now i understand judge kane and pointed analysis of whether or not the court had the actually what you say is possible i suppose but if we really wanted to accommodate both of those statutes it seems to me with the way that you report guns in the or other cases it's pretty clear for confirming the state take i think you have to be right and i think if it's taken only for confirming the amount of compensation then it seems to me  but you're basically we have to to get to go along with you we have to conclude that the court had the authority to read online estate is that right well there's actually one more argument which i haven't  gotten to yet which hopefully i'll get to but i want to come back up here but and that involves the fact that the district court granted summary judgment to all of the defendants and said that for the private defendants the granting of summary judgment was appropriate because there was no federal easement and i believe that that the two issues can be separately read and all right well hang ups i want to ask him to address this but basically on may eighteenth the title was conveyed to the united states without east yes or and his argument is that even after you've got the property without easements somehow that conveyance to the united states which was not before the court back conveyance to the united states is subject to the reason i guess the word he's using which i'm not sure what it means how they can go when it's conveyed to a third party here you have you start off with a commonwealth condemning it and the whole proceedings that we've been arguing about involve how the commonwealth gets title and what title but then the commonwealth did convey it to the united states on may eighteenth without the least yes or now his argument i suppose united states can't get any more than the commonwealth ha have had to have been valued by the land commissioners there were two sets of them the when the bowens when the bones lost their land to condemnation the first set of land commissioners went out in a set of him enough money right they said we want more so judge draper under the statute appoints a second which is one of the things he can do appointed a second settle and commissions it out and gave him more money when they filed their objection to the first lang commissioner report they never mention anything about any zone there is never in this entire record any mention of any easement whatsoever until you look at the anonymous order and it's right curious because some page ninety two the order says something entirely different it says at the very bottom and doth confirm to the commonwealth of virginia as provide attorney or anything anything like that it just kind of appears out of nowhere when the in judge stripers order and on body was standing before him and he had that order and said i'll forget to put in our virginia supreme court in this case these are now claimed was never pled never alleged never claim it was not part of this litigation ok let me let's assume that something was said judge draper that prompted him second if i'm on the the fee that's condemned has to be based upon the law the ha my commissioner's original petition well thought out makes a lot of sense and he did that and the money was paid into  court and the united states was given title right now the state proceedings still had to confirm the amounts and the judge did that but in doing that he adjusted the estate he produced he estate yes i don't think it affected the united states now his argument i think he'll make is that the united states got the title subject to this thesis practice right and and therefore it was going to be bound if it turned out later but that's sort of strange is no finality indeed for them right you can go on forever and judge turk i think recognize that when he said in both the general condemnation statutes and in the specific one nine hundred sixty nine j statute that dealt with the highway commissioners condemnation process the entire eminent domain scheme and that there were only certain circumstances one of which was that the highway commissioner decided to be didn't want the land or the government or the entity decide it did not want the land in question prior to the vesting of any interest  could withdraw its its condemnation the other thing would be if the governmental entity never paid the money into the clark co op and judge turkmens he said then then the court was absolutely right the district court when it when it ruled that way and that together with the fact that no east was ever played no but i thought they had an easement here the bottom one stone even think they had an easement here in their success rs an interest in neither because they applied for special use permits from national park service twice at least twice maybe yes all right they they did not their successor have had they would have gone through the special use permit process with the with the park service and up put those we put those on those as you please and mark them as part of the joint appendix in this case and the corps can see the reason that they were needed was because they were cut off when the blue ridge parkway was built the state the commonwealth rerouted a state route basically cut the bowen successor's off from entry n the owner of the land when all this missed started you have put me in a position referee like it's dangerous for me to argue very much of the central part of the case we do agree with your comments and you expressed very well our argument that the circuit court only fixes damages the commissioner determines what to take and so when you consult the petition you see that he took everything and the inter asian has no effect because that's just not within the judge's purview it's not a part of his job i'd do lad one one factor to the extent this is a real estate case we are concerned with the deeds and the deeds do matter you've already pointed out the deed to the commonwealth of virginia from the commonwealth of virginia to the united states had already been recorded but i will note that if you take time to examine the other deeds in the record you'll see that the deed from recorded in favor of the commonwealth or does the commonwealth in this case commonwealth conveyed it right out to the united states i don't believe there's an intervening b there's about an intervening recorded  arrangement between the federal government who endeavored to construct the parkway and the states through which it passed was that the states would exercise the condemnation power to condemn the land and then convey it to the federal government and that is what happened so the state acquired oh well in this case the state only acquired a condemnation order however if we examine the lands conveyed by the commonwealth of the united states many of those lands were acquired agreeably with the land others so i made an offer and landowner agreed to sale and therefore the commonwealth acquired me deeds just none that affect this case i would like to address the second argument that mr burns has alluded to which is that the easement across rental lands and of on lands has some viability even if they can't cross the federal government property the parkway  pair graphs but when they get to what they ask for they ask for the easement across the parkway land at that location and i will direct your attention to the joint opinion is that page forty five that is by far the most useful diagram parkway purposes for the special use permit but they're both accurate in that they both depict that the bolen's do not own any property joining the public road there is a tiny sliver of land that is all the way across the road frontage two or three property owners if you can't reach your ultimate destination you can't cross the first two and go back you know it ends just a really a statement of common sense if you're in that case they were trying to cross ten different lots to get to a cemetery but since they couldn't cross the last couple of watts they also had no easement across the first eight you can't go part way if you can't get all the way so in this case if one of the plaintiffs fail to cross the parkway they also cannot cross rental limbo and we would that the court sustain the summary judgment granted by the district court thank you mr burns clean it up referring to this argument has been made all along as far as the deeds that were subject to the federal court below the district court the deeds that were given to the court and the relief that was well i'm sorry your honor that argument was made in conjunction with the rights across the federal property but it was always in conjunction never made three lodhi against the private defendant that you had some right we had rights over brittle and boland but not the federal because at the same time we would like it over the federal as well you made the argument you have against all three parties correct that you ever say even if we don't have a right show state road as it existed at that time and one twenty eight i know that is blown up and you lose some of the better visual from from looking at a four but one twenty eight shows  you if you look down at the the box on the right side it says route seven seventy eight as shown on plat of map acquired for the blue ridge parkway sheet fourteen of twenty six dated may thirteenth nine hundred thirty eight well that's i f you see that road that road was was was in that place in one nine hundred thirty eight and the deeds that were required by the appellants date back to that time and you can see state road seven seventy eight actually does touch the bowl and property away from the federal lands and it is possible to access the state road as it was then without the federal without it's moved quite a bit but but what you were to to i mean today you would have to go across federal property you it i believe that the only fair thing to do at that time would be to grant them access either across the federal property even a smaller portion of the federal property to access the new state road as it as it stands now because it moved about twenty feet or so  south and they should either be granted a special use permit across that property to access it across the bridge tolls to boland's and then across the federal property or if you get that is by making it plain as of  eight to apply and now to two thousand and thirteen well that's why we're asking the court for declaratory judgment on declaratory action as to what our rights were asked to the title because the title as it was conveyed in include yours well in your honor that goes back to to your ultimate question which is what did the united states get when it when it received its deed from the commonwealth of virginia and they thought you know their deed does not have the there's no reason they would have recorded it in their list because they thought it i mean you know the united states now conveys it to sixteen other people developers in the developers convey it to the indians for reservation how long do we keep on doing nine case and it says that the fees will total is one that is liable to be an old or made for it and a feasible title was subject to defeat since and other steps were necessary before it could ri title which just means it's subject to something that's going to happen later and by statute by statute specifically something did have to happen and that something was it had to be confirmed by the court it appoints permission it does and then its role is not to make missioners decisions just to prove well the question is when it's approving the mission report and of course in this case jurisdiction and if he did not have if judge draper did not have the authority to enter the order that he entered then it is subject to attack on a  or his order is void and that means his whole order is void you don't take out a portion of the order you don't say well we don't like this port this or if we  strike down the whole water call out and see he didn't have authority then then the united states doesn't have a federal court we're not yes it will than then the united states doesn't own that property i mean i'm never going to come to rest and  that's where we go back which is why i don't believe that the district court's ruling in this case was correct because i believe based upon his logic based upon the district court's logic i believe that you would have to determine that one thousand nine hundred thirty eight condemnation order as void which means that the commonwealth of virginia never received that property which means the united states of america did not receive that property it's much easier to