PRESENT: All the Justices 

JAMES A. BROWN, ET AL. 

 

v. Record No. 971587 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 April 17, 1998 

FRENCH H. MOORE, JR., ET AL. 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Charles B. Flannagan, II, Judge 

 In this appeal, we consider whether the trial court erred 

in ruling that a certain “strip” of real property was not a 

public way but was acquired by an adjoining landowner through 

adverse possession. 

The disputed property is about 8 feet wide and is located 

in the Town of Abingdon.1 The property lies along the northern 

boundary of residential property owned by French H. Moore, Jr., 

and Mary Ann Garrett Moore (Moore), and along the southern 

boundary of a farm owned by James A. and Bliss M. Brown (Brown).2

The disputed property is located to the east of Henry 

Street and to the west of Crestview Drive. Each of these Town 

streets leads to the top of a hill and ends in a cul-de-sac. 

 1

 The exact width of the disputed property is not clear from 

the record. At various times it is described as 71⁄2 feet wide, 

8.34 feet wide, and 81⁄2 feet wide. The exact measurement is not 

required for purposes of deciding this appeal. 

2

 Although the property owned by Moore is located within 

Town boundaries, only the southern portion of the Brown farm is 

located within Town limits. 
The disputed property constitutes a portion of the land lying 

between the two cul-de-sacs. 

In March 1989, Brown filed an amended motion for 

declaratory judgment against Moore, seeking a declaration that 

the disputed property is a public right of way. In the 

alternative, Brown asked that if the court determined the 

disputed property is not publicly owned, the court declare that 

Brown has a private right of way over the property, and that 

Moore has failed to establish adverse possession of the 

property. 

The following evidence was presented in a bench trial. 

Prior to 1872, Edward M. Campbell owned certain real property, 

including the disputed property. In 1872, Campbell conveyed all 

but an approximately 18-foot-wide “strip” of his property (18-

foot strip) to Washington McClanahan. This 18-foot strip was 

located along the entire northern border of Campbell’s property. 

The disputed property lies within a portion of the 18-foot 

strip. 

Since 1872, deeds conveying property surrounding the 

disputed property reference the 18-foot strip, using various 

terms including, “lane,” “public pass way,” “right-of-way,” and 

“alley.” Also, a Town zoning map, a street plan, a “corporate 

boundary” plat, and a 1948 annexation order refer to Henry 

2
Street in the general area in which the disputed property is 

located. 

In June 1964, French H. Moore, Jr., James H. Bowden, Jr., 

and Paul F. Wagner acquired three contiguous tracts of land, 

including one tract from James and Dorothy Spencer (Spencer 

tract). The deed conveying the Spencer tract to Moore, Bowden, 

and Wagner (Spencer deed) provides that the property being 

conveyed is bordered on the north by an “alley.” The referenced 

“alley” is in the same location as the 18-foot strip. The 

Spencer deed describes the northern boundary of the Spencer 

tract as extending 199.5 feet from its southern line. 

Moore, Bowden, and Wagner later decided to divide the land 

they had acquired. To provide access to each lot, they sought 

to extend Crestview Drive in a westerly direction over a portion 

of the 18-foot strip. To accomplish this purpose, Moore, 

Bowden, and Wagner submitted a subdivision plat to the Abingdon 

Town Council for approval. 

Moore requested approval of the subdivision plat at the 

January 3, 1966 regular meeting of the Abingdon Town Council. 

The minutes of this meeting reflect that the surveyor who 

drafted the subdivision plat presented it to the Town Council 

“with [a] proposal for closing a part of the alley referred to 

in the request, and advised [the Council] regarding reference to 

the alley as a lane.” The minutes further state that “[s]ince 

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it was not determined if this were an alley and if the Town had 

any interest therein, [the council referred this issue] to the 

Town Attorney for advice as to what the Town can do, and for his 

recommendation on the matter.” 

Although the request for approval of the subdivision plat 

was discussed two weeks later at the January 17, 1966 Council 

session, the minutes of the meeting do not refer to any 

discussion of the “alley” or “lane.” Instead, the minutes 

reflect that the Town Council informed Moore that a 50-foot 

right of way was required before the Council would approve the 

extension of Crestview Drive. To comply with this requirement, 

Moore agreed to provide the Town with a 17-foot parcel from the 

northern border of the Spencer tract. Landowners on the 

northern side of Crestview Drive also provided a 17-foot parcel 

from the border of their property. 

There also was no discussion of the 18-foot strip in 

February 1966, when the Town Council approved the subdivision 

plat which provided for the extension of Crestview Drive ending 

in a cul-de-sac at the northeast corner of the Spencer tract. 

This cul-de-sac ended just short of the eastern edge of the 

disputed property. The subdivision plat was recorded in October 

1967, and Crestview Drive later was extended in accordance with 

the plat specifications. 

4
Moore, Bowden, and Wagner then executed a partition deed in 

December 1967, which, among other things, conveyed the Spencer 

tract to Moore. The partition deed makes no reference to an 

“alley.” However, the metes and bounds description in the 

partition deed depicts the northern boundary line of the Spencer 

tract as extending 207.84 feet from the southern border, a 

distance of 8.34 feet more than the 199.5 feet set forth in the 

Spencer deed. This additional 8.34-foot portion of land 

comprises the disputed property. 

Shortly after the subdivision plat was approved in 1966, 

Moore graded his property in preparation for the construction of 

a house. As a result of the grading, the elevation of the 

disputed property was lowered 13 feet. Moore also planted trees 

on the disputed property. 

Brown obtained his property by deed dated September 20, 

1975. The plat attached to the deed shows a right of way which 

borders the southern boundary of the property and connects Henry 

Street to Crestview Drive. The right of way shown on this plat 

is in the same location as the 18-foot strip and includes the 

disputed property. In 1986, when Brown attempted to improve the 

disputed property to create another access to his property, 

Moore objected and Brown filed this action. 

At trial, Brown presented testimony from several witnesses, 

including Barry L. Proctor, an attorney who concentrated his 

5
practice in real estate title examinations. Proctor testified 

that the disputed property was dedicated for public use when the 

Campbell conveyance excluded the 18-foot strip and that, in his 

opinion, the Town “considered itself to have a public street in 

this vicinity.” Roy K. Balthis, a certified land surveyor, 

identified the above-mentioned discrepancies between the Spencer 

deed and the partition deed and noted the references in various 

deeds to the 18-foot strip. 

Elizabeth S. Jones, an attorney, testified that she found 

no documents of record indicating that the Town had accepted an 

offer of dedication of the disputed property. Jones stated 

that, in her opinion, there is not a public right of way over 

the disputed property. Herman McCormick, Jr., superintendent of 

public works for the Town from 1963 to 1990, whose 

responsibilities included supervision of street maintenance, 

garbage collection, snow removal, and traffic signs, testified 

that the Town never maintained the portion of land between the 

cul-de-sac at the end of Henry Street and the cul-de-sac at the 

end of Crestview Drive. 

The trial court held that Brown failed to establish that 

the disputed property was dedicated as a public right of way. 

The court also held that, even if Brown once had a private right 

of way over the disputed property, this right was extinguished 

by Moore’s adverse possession of the property. 

6
On appeal, Brown first argues that the disputed property 

was dedicated to public use by implication. In support of this 

argument, Brown relies on Campbell’s 1872 conveyance to 

McClanahan of all but 18 feet of Campbell’s property, and on the 

references in later deeds to a “lane,” a “public pass way,” a 

“right-of-way,” and an “alley”. 

Brown also relies on the separate doctrines of implied 

acceptance and partial acceptance. Under the doctrine of 

implied acceptance, Brown contends that the Town’s actions 

regarding the disputed property constituted an implied 

acceptance of the purported offer of dedication. Brown asserts 

that the Town considered at least a portion of the 18-foot strip 

to be a public way, since only 34 additional feet were required 

from the adjoining landowners to create the 50-foot right of way 

for the extension of Crestview Drive. Brown also argues that, 

by referring to the 18-foot strip on a Town map, a “corporate 

limit” plat, a street plan, and in the 1948 annexation order, 

the Town accepted the purported offer of dedication. Under the 

doctrine of partial acceptance, Brown argues that the Town’s 

acceptance of a portion of the 18-foot strip for the extension 

of Crestview Drive constituted an acceptance of the entire 18-

foot strip, including the disputed property. 

Lastly, Brown contends that he obtained a private right of 

way over the disputed property because a right of way was shown 

7
on the plat attached to his deed. He argues that the evidence 

does not support the trial court’s ruling that Moore acquired 

the disputed property through adverse possession. 

In response, Moore contends that even if the disputed 

property was dedicated for public use, the Town did not accept 

the offer of dedication. Moore also argues that any private 

right Brown may have had regarding the disputed property has 

been superceded by Moore’s adverse possession of that property. 

We agree with Moore. 

We recently stated the following principles relevant to our 

disposition of this appeal: 

Dedication, at common law, was a grant to the public, by a 

landowner, of a limited right of use[] in his land. No 

writing or other special form of conveyance was required; 

unequivocal evidence of an intention to dedicate was 

sufficient. Until the public accepted the dedication, it 

was a mere offer to dedicate. 

McNew v. McCoy, 251 Va. 297, 299, 467 S.E.2d 477, 478 (1996) 

(citing Brown v. Tazwell County Water & Sewerage Auth., 226 Va. 

125, 129-30, 306 S.E.2d 889, 891 (1983)); see also Bradford v. 

Nature Conservancy, 224 Va. 181, 198-99, 294 S.E.2d 866, 875 

(1982). Because a dedication imposes the burden of maintenance 

and potential tort liability on the public, a dedication is not 

completed until the public or competent public authority 

manifests an intent to accept the offer. Ocean Island Inn, Inc. 

8
v. City of Virginia Beach, 216 Va. 474, 477, 220 S.E.2d 247, 250 

(1975). 

The acceptance of an offer of dedication by the governing 

authority may be “formal and express, as by the enactment of a 

resolution by the appropriate governing body, or by implication 

arising from an exercise of dominion by the governing authority 

or from long continued public use[] of requisite character.” 

McNew, 251 Va. at 299-300, 467 S.E.2d at 478. The present 

record contains no evidence of a formal or express acceptance by 

the Town of the disputed property. Therefore, we consider 

whether the Town impliedly accepted the property by exercising 

dominion over the property or from long continued public use of 

requisite character. 

In determining whether an offer of dedication has been 

impliedly accepted, courts have given consideration to such 

governmental actions as the installation of public utility lines 

in or across a street, the opening and paving of a street, and 

the repair of a street. See Ocean Island Inn, 216 Va. at 477, 

220 S.E.2d at 250-51. These actions constitute affirmative 

conduct showing an implied acceptance by the governmental body. 

The record before us does not contain any such evidence of 

affirmative conduct by the Town regarding the disputed property. 

The record also provides no evidence that the Town 

exercised dominion over the disputed property by performing any 

9
maintenance on the property. In fact, Herman McCormick’s 

testimony provided contrary evidence that the Town did not 

maintain the land between the two cul-de-sacs from 1963 through 

1990, the period McCormick served as the Town’s superintendent 

of public works. 

We disagree with Brown’s contention that the Town exercised 

dominion over the disputed property by showing a portion of the 

18-foot strip, including the disputed property, on various maps 

and in the annexation order. These notations reflect only the 

physical location of the 18-foot strip and are not evidence of 

an assumption by the Town of any duty to maintain the property. 

The contrary conclusion urged by Brown is untenable because it 

would require the Town to maintain any road or way appearing on 

any Town document, without regard to whether the Town had 

engaged in affirmative conduct manifesting an implied acceptance 

of that particular road or way. 

The evidence also was insufficient, as a matter of law, to 

establish implied acceptance of the disputed property by public 

use of requisite character. This principle of implied 

acceptance is applicable when the public has made such long use 

of property offered for dedication as to render its reclamation 

unjust and improper. See Body v. Skeen, 208 Va. 749, 752, 160 

S.E.2d 751, 753-54 (1968); City of Norfolk v. Meredith, 204 Va. 

10
485, 491, 132 S.E.2d 431, 436 (1963); Buntin v. Danville, 93 Va. 

200, 204-05, 24 S.E. 830, 830-31 (1896). 

James Brown testified that when he purchased his farm in 

1975, a “roadbed” was visible on the disputed property but the 

property was “grown up in briars and brush.” He also stated 

that in 1975, the disputed property was passable by means of a 

four-wheel-drive vehicle. The evidence also showed that some 

people crossed over the disputed property in traveling between 

Henry Street and Crestview Drive. However, the evidence does 

not show the duration of such usage or its frequency over any 

period of time. Thus, while the record indicates that at some 

time in the past the disputed property was used as a passageway, 

the evidence of this use is insufficient to demonstrate “long 

continued public use[] of requisite character.”3 See McNew, 251 

Va. at 299-300, 467 S.E.2d at 478; Body, 208 Va. at 752, 160 

S.E.2d at 753-54; Meredith, 204 Va. at 491, 132 S.E.2d at 436; 

Buntin, 93 Va. at 204-05, 24 S.E. at 830-31. 

Under the doctrine of partial acceptance, however, Brown 

argues that the Town’s approval of the subdivision plat for the 

extension of Crestview Drive manifested its acceptance of at 

 3

 We also find no merit in Brown’s contention that, in 1966, 

Moore “admitted” that the disputed property was part of a public 

right of way. A statement by a landowner cannot create an 

implied acceptance by a local governing body, and Brown had the 

burden of proving such acceptance irrespective of any statement 

by Moore. 

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least a portion of the 18-foot strip. Brown contends that, 

without a portion of that strip, the additional 17 feet from the 

landowners on the north and south of Crestview Drive would have 

been insufficient to create a 50-foot right of way for the 

extension of Crestview Drive. Brown concedes that the disputed 

property is not located within the particular portion of the 18-

foot strip that the Town accepted. However, Brown argues that 

in accepting a portion of the 18-foot strip, the Town has 

accepted the entire 18-foot strip. 

This argument is without merit. We have limited 

application of the doctrine of partial acceptance to instances 

in which “a governing body has accepted part of the streets 

appearing on a recorded plat and no ‘intention to limit the 

acceptance’ is shown.” Ocean Island Inn, 216 Va. at 479, 220 

S.E.2d at 252; see Hurd v. Watkins, 238 Va. 643, 651-52, 385 

S.E.2d 878, 883 (1989). “[S]uch partial acceptance constitutes 

acceptance of all of the streets, provided the part accepted is 

sufficiently substantial to evince an intent to accept the 

comprehensive scheme of public use[] reflected in the plat.” 

Ocean Island Inn, 216 Va. at 479, 220 S.E.2d at 252. Since the 

disputed property does not appear on a recorded subdivision plat 

which depicts a group of streets, the doctrine of partial 

acceptance is inapplicable. 

12
We disagree with Brown’s contention that a different result 

is required based on the minutes of a January 1994 regular 

meeting of the Town Council. These minutes contain a statement 

that the Council construes its act of approving the subdivision 

plat in 1966 as an “official ruling” closing Henry Street. 

Brown contends that this statement in the minutes demonstrates 

that the Town previously accepted the offer of dedication of the 

18-foot strip. Such a statement, made 28 years after the 

described action, is of no probative value on this issue.4

We also conclude that the trial court was not plainly wrong 

in ruling that any claim by Brown to a private right of way over 

the disputed property has been extinguished by Moore’s adverse 

possession of the disputed property. “To establish title to 

real property by adverse possession, a claimant must prove 

actual, hostile, exclusive, visible, and continuous possession, 

under a claim of right, for the statutory period of 15 years.” 

Hollander v. World Mission Church, 255 Va. 440, 442, ___ S.E.2d 

___, ___ (1998) (quoting Calhoun v. Woods, 246 Va. 41, 43, 431 

S.E.2d 285, 286-87 (1993)). These elements must be proved by 

 4

 We need not address Brown’s argument that the Town did not 

properly close the public way, and that the Town’s attempt to 

close Henry Street “violates public policy against sanctioning 

and perpetuating racially segregated residential communities.” 

These issues are moot, in light of our ruling that the Town did 

not accept the purported offer of dedication. 

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clear and convincing evidence. Calhoun at 43, 431 S.E.2d at 

287. 

Brown contends that Moore failed to meet his burden of 

proving adverse possession because Moore occupied the disputed 

property under the mistaken belief that it belonged to him under 

the terms of the partition deed and subdivision plat. This 

“mistake,” according to Brown, defeats Moore’s claim of adverse 

possession. 

We agree with the principle that one who possesses 

another’s land under a mistake regarding the boundaries of the 

property and does not intend to claim land beyond the “true” 

property line, cannot adversely hold the land in question. See

Hollander, 255 Va. at 443, ___ S.E.2d at ___; Christian v. 

Bulbeck, 120 Va. 74, 102-03, 90 S.E. 661, 670 (1916). However, 

[w]hether the positive and definite intention to claim as 

one’s own the land up to a particular and definite line on 

the ground existed is the practical test . . . . The 

collateral question whether the possessor would have 

claimed title, claimed the land as his own had he believed 

the land involved did not belong to him, but to another, 

that is, had he not been mistaken as to the true boundary 

line called for in his chain of title, is not the proximate 

but an antecedent question, which is irrelevant and serves 

only to confuse ideas. 

Hollander, 255 Va. at 443, ___ S.E.2d at ___ (quoting Christian, 

120 Va. at 111, 90 S.E. at 672) (emphasis deleted). 

In Hollander, a landowner occupied disputed land under the 

mistaken belief that it belonged to her under the terms of a 

14
deed. The evidence indicated that the landowner performed 

maintenance and upkeep on the disputed land for more than 15 

years. We held that the landowner possessed the property with 

adverse or hostile intent because her claim was not based solely 

on the deed description, but also on her belief that the 

property belonged to her. We noted that this belief was 

evidenced by the landowner’s maintenance and upkeep performed on 

the disputed land. Hollander, 255 Va. at 443, ___ S.E.2d at 

___. 

Similarly, although the Moores may have believed that the 

disputed property belonged to them under the terms of the 

partition deed, the testimony of French Moore was clear that he 

intended to claim the disputed property “against anybody.” 

Moreover, this belief was manifested by Moore’s acts of 

excavating and planting trees on the disputed property. 

The evidence also supports the trial court’s ruling that 

Moore met his burden of proving the other elements of adverse 

possession by clear and convincing evidence. As stated above, 

soon after the subdivision plat was approved in 1966 and before 

his home was completed in 1968, Moore excavated his property and 

lowered the level of the disputed property by about 13 feet. 

Brown acknowledged that he could not drive a vehicle on the 

“actual alley, because it had been disturbed by the grading 

there and was too steep to drive on.” Further, the evidence is 

15
uncontradicted that shortly after the subdivision plat was 

approved, Moore planted trees on the disputed property. Thus, 

the evidence showed that Moore proved actual, hostile, 

exclusive, visible, and continuous possession, under a claim of 

right, for at least 15 years. See Hollander, 255 Va. at 442, 

___ S.E.2d at ___; Calhoun, 246 Va. at 43, 431 S.E.2d at 286-87. 

For these reasons, we will affirm the trial court’s 

judgment. 

 Affirmed.

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