Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and 

Agee, JJ., and Russell, S.J. 

BETHEL INVESTMENT COMPANY OPINION BY 

 SENIOR JUSTICE CHARLES S. RUSSELL 

v. Record No. 060043 November 3, 2006 

CITY OF HAMPTON 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Louis R. Lerner, Judge 

 This appeal requires us to consider whether a party to 

litigation in which the statute of limitations is at issue is 

entitled to a jury trial upon the preliminary issue of fact as 

to when the statute began to run. 

Facts and Proceedings

 In the mid-1990’s, the City of Hampton (the City) made 

plans for the development of a 470-acre industrial and 

commercial park as an enhancement to its tax base. A part of 

this plan entailed filling in an area then classified as 

wetlands by the U.S. Army Corps of Engineers (the Corps). The 

City and the Corps entered into an agreement whereby the City 

would mitigate this loss of wetlands by converting a 20-acre 

parcel of uplands owned by the City in another location (the 

mitigation parcel) into wetlands. Pursuant to the agreement, 

the City, in November 1998, constructed two weirs or “check 

dams” in a natural stream running through the City’s 

mitigation parcel. The City also constructed berms to contain 

rainfall within the mitigation parcel. These measures 
ultimately converted the mitigation parcel into wetlands 

meeting the Corps’ criteria.1 The original weirs leaked, 

however, and had to be rebuilt in order to satisfy the Corps. 

The final rebuilding was completed in the fall of 2001. 

 Bethel Investment Company (Bethel) owns six contiguous 

parcels of land, zoned for residential development, adjacent 

to the City’s mitigation parcel. In 1992, Bethel employed a 

“wetlands consultant” to examine all of its property to 

determine how much, if any, of its land would be classified as 

wetlands within the criteria established by the Corps. The 

consultant opined that more than 90 percent of Bethel’s 

acreage was upland, not wetland. In 1996, Bethel sent a 

written protest to the Corps, with a copy to the City, 

opposing the proposed conversion of the City’s mitigation 

 1

 Bethel cites 33 C.F.R. § 328.3(b)(2004) for the 

proposition that to be regulated as a wetland, an area must be 

“inundated or saturated by surface or ground water at a 

frequency and duration sufficient to support, and that under 

normal circumstances do support, a prevalence of vegetation 

typically adapted for life in saturated soil conditions.” The 

City explained that the test applied by the Corps requires 

that the water table be raised to a level whereby ground water 

would be within 12 inches of the surface of the land for 28 

consecutive days during the growing season, approximately 

March through October. Witnesses testified that the Corps 

would monitor test wells for ten years to determine whether 

its wetlands criteria were met, and in determining “normal 

circumstances,” excessively wet years and excessively dry 

years would be disregarded. 1998 and 1999 were described as 

excessively wet years. 

2
parcel into wetlands because of the anticipated effect on 

Bethel’s adjacent property. 

 On June 14, 2004, Bethel filed this action at law against 

the City, claiming $10,000,000 damages, alleging that the 

City’s construction on the mitigation parcel had raised the 

water table on Bethel’s property such that over 100 acres of 

it had been converted from uplands into economically 

undevelopable wetlands. The motion for judgment contained 

counts for inverse condemnation, continuing trespass, 

continuous private nuisance, diversion of surface water and 

negligence. 

 The City’s responsive pleadings denied that Bethel had 

suffered any damage, but asserted that if it had, Bethel’s 

claims were barred by the applicable statutes of limitations 

and by Bethel’s failure to give the City notice of its claim, 

as required by Code § 8.01-222, within six months after its 

cause of action had accrued. The City contended that this 

section barred Bethel’s claims sounding in negligence, that 

the inverse condemnation claim was subject to a three-year 

statute of limitations, and that the claims for damage to 

property were subject to a five-year statute of limitations. 

The City asserted that all of Bethel’s claimed causes of 

action had accrued more than five years before this action was 

3
filed, which was outside all of the applicable limitation 

periods. 

 Bethel contended that its causes of action accrued when 

its previously developable uplands were converted into 

economically undevelopable wetlands in 2004 by reason of the 

City’s actions, and not before. This, Bethel argued, was a 

disputed issue of fact upon which it was prepared to offer 

expert testimony and requested trial by jury. 

 The trial court heard argument on these questions, 

including Bethel’s jury demand, heard some evidence, and took 

the case under advisement. The court then issued a letter 

opinion ruling that “Plaintiff’s claims arose more than five 

years before Plaintiff filed the Motion for Judgment,” 

sustaining the City’s pleas of the statute of limitations and 

motion to dismiss under Code § 8.01-222, and dismissing the 

motion for judgment. The court’s opinion made no mention of 

Bethel’s assertion of its right to a jury trial on the issue 

of the time its causes of action had accrued. Bethel moved 

the court to reconsider, but that motion was denied and the 

court entered an order dismissing the motion for judgment with 

prejudice. We awarded Bethel an appeal. 

Analysis

 Bethel asserts four assignments of error: (1) That the 

trial court ascertained that Bethel’s causes of action had 

4
accrued more than five years before suit was filed without any 

evidence from the City as to when the damage to Bethel’s 

property first occurred; (2) that the court deprived Bethel of 

its right to trial by jury of the issue as to when the damage 

occurred; (3) that the court failed to view the facts and 

inferences before it in the light most favorable to Bethel; 

and (4) that the court erred in barring Bethel’s right to 

recover damages occurring within the five years preceding the 

filing of this action. We consider the first and second 

assignments of error to be dispositive of this appeal. 

 The Constitution of Virginia, art. I, § 11, provides in 

pertinent part: “That in controversies respecting property, 

and in suits between man and man, trial by jury is preferable 

to any other, and ought to be held sacred.”2 This provision is 

not applicable to proceedings in which there was no right to 

jury trial when the Constitution was adopted, such as ordinary 

suits in chancery, but it is clearly applicable to common-law 

actions seeking to recover damages. Stanardsville Vol. Fire 

Co. v. Berry, 229 Va. 578, 583, 331 S.E.2d 466, 469 (1985). 

 2

 This sentence still resounds with George Mason’s 18th 

Century language and is very close to the original. In the 

“Declaration of Rights made by the Representatives of the good 

People of Virginia,” unanimously adopted June 12, 1776, it 

differs from the present Constitution only in that “trial by 

jury” appears in the original as “the ancient trial by jury.” 

See generally 1 A. E. Dick Howard, Commentaries on the 

Constitution of Virginia 244-45 and n. 303 (1974). 

5
The Virginia Constitution guarantees that a jury will resolve 

disputed facts, and that has been the jury’s sole function 

from the adoption of the Constitution to the present time. 

Speet v. Bacaj, 237 Va. 290, 296, 377 S.E.2d 397, 400 (1989). 

Code § 8.01-336(A) provides that the constitutional right of 

trial by jury “shall be preserved inviolate to the parties.” 

Subsection (B), which follows, provides that in any action at 

law for the recovery of any sum greater than $100, the case 

may be tried without a jury “unless one of the parties demand3

that the case or any issue thereof be tried by a jury.” 

(Emphasis added.) 

 In Southern Railway Co. v. Watts, 134 Va. 503, 114 S.E. 

736 (1922), we were presented with questions nearly identical 

to those now before us. There, the defendant railway company 

had constructed a fill that diverted a creek on the company’s 

own land. The partial obstruction caused by this diversion 

resulted in an accretion of “sand and dirt” in the bed of the 

stream at and above the point of diversion, which gradually 

increased and extended back up the stream. Ultimately, the 

accumulation resulted in flooding damage to the lands of the 

plaintiff, upstream from the railroad’s land. The defendant 

contended that the damage of which the plaintiff complained 

 3

 A 2005 amendment, not pertinent to this appeal, changes 

“demand” in this sentence to “demands.” 2005 Acts ch. 681. 

6
had arisen when it completed the construction of its fill, 

which occurred more than five years before the action was 

filed, and filed a plea of the statute of limitations. The 

plaintiff contended that his cause of action did not accrue 

until his land suffered damage as a result of the defendant’s 

construction, which was within the five-year period. We held 

that the question of when the first actual damage resulted in 

the injury complained of was an issue of fact for 

determination by the jury. We further held that the defendant 

bore the burden of proof upon that issue. Id. at 508-11, 114 

S.E. at 737-38. In the related case of Southern Railway Co. 

v. Leake, 140 Va. 438, 125 S.E. 314 (1924), we were urged to 

depart from our holdings in Watts, but refused to do so. 

 Here, Bethel contends that the damage to its property 

occurred, and the statute of limitations began to run, in 

2004, when its property became undevelopable wetland within 

the criteria applied by the Corps. The City, on the other 

hand, contends that whatever damage Bethel’s land might have 

suffered occurred no later than March, 1999, when a witness 

stated that he had seen surface water backed up from the 

City’s mitigation parcel in a ditch that extended partially 

into Bethel’s land. The issue of the time at which Bethel’s 

land first suffered damage as a result of the City’s acts was 

one of disputed fact. Bethel, having demanded it, was 

7
entitled to a jury trial of that issue, and the trial court 

erred in denying it. 

 Nevertheless, we will not remand the case for a jury 

trial of that issue because the City, which submitted its case 

to the trial court on that issue,4 failed entirely to present 

evidence sufficient to support the trial court’s finding. 

 The City’s evidence consisted of photographs, maps, and 

the testimony of a single witness who stated that he had 

visited the City’s mitigation parcel sometime in March 1999, 

after the City had completed its initial construction of the 

weirs, and had observed water backed up into a drainage ditch. 

Asked if this ditch extended into Bethel’s property, he stated 

that he “believe[d]” that it extended into a “small portion of 

it.” He based his belief on “the City of Hampton’s survey 

department’s line that they kept.” Because drainage ditches 

exist for the purpose of carrying surface water away from 

adjacent land in order to prevent flooding, we cannot say that 

 4

 The City contended that the trial court could decide the 

issue without a jury if there were no material issue of fact 

in dispute and that its evidence would satisfy the court that 

“there’s no material factual dispute here.” The court ruled 

that it would hear the evidence and determine whether this "is 

indeed a jury issue.” The court then heard the evidence, took 

the case under advisement, and the following day issued its 

letter opinion, making the factual finding that the 

plaintiff’s cause of action had accrued more than five years 

before the motion for judgment was filed. 

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the mere presence of water in such a ditch is, in itself, 

injurious or damaging to the land and there was no further 

evidence from which injury or damage could be inferred. The 

City presented no additional evidence to support its 

contention that the cause of action had accrued more than five 

years before the motion for judgment was filed. The City bore 

the burden of proof on that issue, Louisville & N. R. Co. v. 

Saltzer, 151 Va. 165, 172, 144 S.E. 456, 458 (1928), and 

failed to carry it. Because the evidence supporting the trial 

court’s finding was insufficient as a matter of law, the City 

is not entitled to relitigate that issue on remand.5

Conclusion

 Because the trial court erred in sustaining the City’s 

affirmative defenses based on the statutes of limitations and 

Code § 8.01-222, we will reverse the judgment appealed from 

and remand the case for trial upon all the issues raised by 

the motion for judgment. 

Reversed and remanded. 

 5

 Code § 8.01-222 is limited by its terms to claims 

sounding in negligence. It requires that notice of the claim 

be given to a city or town “within six months after such cause 

of action shall have accrued.” Consequently, the issue of 

fact as to when the damage first occurred, and the cause of 

action accrued, is common to all three limitation periods 

asserted by the City. 

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