COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Bumgardner 

Argued at Richmond, Virginia 

CHARLES JORDAN AND 

 ELAINE JORDAN 

 OPINION BY 

v. Record No. 0681-00-2 JUDGE RUDOLPH BUMGARDNER, III 

 JULY 31, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Margaret P. Spencer, Judge 

 Joseph E. Blackburn, Jr. (White, Blackburn & 

Conte, P.C., on briefs), for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 The trial court convicted Charles Jordan and Elaine Jordan 

of maintaining a public nuisance in violation of Code § 48-3,1

fined them $5,000 each, and ordered them to abate the nuisance. 

On appeal, they contend the evidence was insufficient to prove 

they owned the premises involved.2 We agree and reverse. 

 1

 Code § 48-3. Permitting continuation of 

 nuisance; presentment against premises. -- 

If any such nuisance be upon premises the 

owner of which did not create or cause such 

nuisance, but permitted its continuation, 

such owner shall, for the purposes of this 

chapter, be deemed responsible for such 

nuisance, and if such owner be not a resident 

or citizen of this Commonwealth, or one whose 

residence is not known, such presentment 

shall be against the premises upon which such 

nuisance is. 2

 The defendants also contend the trial court erred in 

finding that a nuisance existed and that they permitted it to 
 The Commonwealth received complaints that events held at 

The Marquee, a large banquet hall, created a public nuisance by 

causing increased noise from traffic, car stereos, and 

pedestrians yelling in the street. Cars parked illegally during 

the events, and garbage littered the streets after them. The 

Commonwealth also contended that certain events held at The 

Marquee violated zoning restrictions. 

 The Marquee is located at the corner of Cutshaw and Belmont 

Avenues in Richmond. Fee simple title is vested in The Marquee, 

L.L.C., a properly organized Virginia limited liability company. 

The defendants are the sole members of the company which has no 

employees. 

 Individuals and organizations leased The Marquee for the 

events that led to the complaints. The defendants did not 

promote or host the events held at the building, and the 

Commonwealth does not suggest they personally created or caused 

a nuisance. It brought the proceedings against the defendants 

under Code § 48-3, which makes the property owner responsible 

for a continuing nuisance. The Commonwealth acknowledges it 

must prove the defendants were the owners of the premises upon 

which the nuisance existed. 

 

continue, in instructing the jury that they are responsible for 

the nuisances caused by patrons, in excusing certain jurors, and 

in ordering abatement of the nuisance. Because we find that the 

defendants did not own the premises, we do not address the other 

questions presented. 

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 The Marquee, L.L.C. acquired fee simple title by deed of 

bargain and sale dated October 7, 1996. The City of Richmond 

issued a building permit to the limited liability company and 

authorized it to operate the facility as a social hall. All 

tax, zoning, and title records are in the name of The Marquee, 

L.L.C. 

 The Commonwealth acknowledges that title to the real estate 

is vested in The Marquee, L.L.C. but contends that the 

defendants, individually, should be deemed owners of The 

Marquee. The Commonwealth argues the defendants were the owners 

in fact because they were the sole members in the limited 

liability company, shared its profits, and represented 

themselves to be the owners. 

 The defendants moved to strike the Commonwealth's evidence, 

but the trial court ruled ownership was an issue of fact for the 

jury to decide. The defendants renewed their objection and 

moved to set aside the verdict. If reasonable men cannot differ 

on a finding of fact, there is nothing for the jury to resolve; 

the issue is one of law not of fact. Commonwealth v. McNeely, 

204 Va. 218, 222, 129 S.E.2d 687, 689-90 (1963). 

 A limited liability company is a hybrid business 

organization that has characteristics of both a partnership and 

a corporation. It provides its owners the limited liability of 

a corporation, but the federal income tax treatment of a 

partnership. See 4B Michie's Jurisprudence, Corporations § 5, 

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at 93 (1999). Organized under Chapter 12 of Title 13.1, 

Corporations, a limited liability company is a separate legal 

entity once certified by the State Corporation Commission that 

is empowered to sue and be sued and to acquire and hold legal or 

equitable title. Code § 13.1-1009. Title to real property 

acquired by the company vests in the company, Code § 13.1-1021, 

and a member of the company is not a proper party to a 

proceeding by or against the company, Code § 13.1-1020. In this 

case, The Marquee, L.L.C. was an independent legal entity that 

held title to the real estate where the nuisance occurred. 

 Maintaining a public nuisance is an indictable offense. 

Taylor v. Commonwealth, 70 Va. (29 Gratt.) 780, 784 (1878). It 

is a common law offense of ancient origin. Public nuisance "was 

dealt with by the machinery established for the prosecution of 

crime, since no other was readily available . . . ." Rollin M. 

Perkins & Ronald N. Boyce, Criminal Law 717 (3d ed. 1982). 

"We have no statute defining a public nuisance or declaring 

its constituents, or prescribing the form of an indictment 

therefor. The offense, therefore, remains as defined at common 

law, and the indictment for its commission may be framed 

substantially as at common law . . . ." Tisdale v. 

Commonwealth, 114 Va. 866, 868, 77 S.E. 482, 483 (1913). 

"'Nuisances are of two kinds - public or common nuisances, which 

affect people generally, and private nuisances which may be 

defined as anything done to the hurt of the lands, tenements, or 

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hereditaments of another. . . . An indictment will lie for a 

public nuisance but not for a private nuisance.'" White v. Town 

of Culpeper, 172 Va. 630, 636, 1 S.E.2d 269, 272 (1939) (quoting 

John F. Dillon, 2 Commentaries on the Law of Municipal 

Corporations § 8 (5th ed. 1911)). 

Title 48, Chapter 1 establishes the procedure by which the 

Commonwealth proceeds against public nuisances. It authorizes a 

special grand jury to investigate a complaint of nuisance made 

by five citizens, Code § 48-1, and to make a presentment against 

the person who created or caused the nuisance, Code § 48-2. 

Code § 48-3 makes an owner responsible for the nuisance if he 

allows it to continue on the premises. If the owner is not a 

resident or citizen, or cannot be located, the special grand 

jury may make a presentment against the property itself. When 

the proceeding against the property is in rem, anyone 

"interested, or for and in behalf of the owner" may defend the 

action. Code § 48-4. 

Once a public nuisance is declared, it may be abated as 

part of the criminal proceedings. Code § 48-5; White v. King & 

M'Call, 32 Va. (5 Leigh) 726, 730 (1835). Though it is a direct 

action against private property that impinges upon private 

property rights, "[t]he abatement of such a nuisance for the 

public safety comes under the police power of the State, and is 

not a taking of private property for a public use in the sense 

contemplated by the Constitution, for which compensation must be 

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allowed." Jeremy Improvement Co. v. Commonwealth, 106 Va. 482, 

490, 56 S.E. 224, 226 (1907). "The theory is that the owner of 

an enterprise carried on for his profit by agents or servants is 

liable for a nuisance . . . caused by their acts in carrying on 

the enterprise." Perkins & Boyce, Criminal Law, at 717. 

 When placed in its ancient common law context, Code § 48-3 

can only be understood to authorize prosecution of the person or 

entity that holds actual title to the property on which a 

nuisance continues. The sovereign's effort3 to stop conduct that 

creates a public nuisance can only be effective if directed at 

the person with ultimate authority over the premises where the 

nuisance exists. The person who can assert the rights, 

privileges, powers, and immunities of ownership to real property 

is the entity vested with title in fee simple. In this case, 

The Marquee, L.L.C. 

Code § 48-3 required the Commonwealth to prove the 

defendants were the owners of The Marquee. The evidence proved 

 3

 As stated in Perkins & Boyce, Criminal Law, at 897: 

 The development of the public-nuisance 

concept was not in any sense a result of a 

desire to deal harshly with the offender. 

Quite the opposite, it was intended for his 

protection. If every member of the community 

who was annoyed by a public nuisance could 

maintain an action therefor, the result would 

be disastrous to the one who had caused it. 

Hence, the theory was that the King, acting 

for all the people, would maintain one action 

which, if it resulted in a judgement against 

the defendant, would call him to pay for the 

damage done, in the form of a fine, and to 

bring an end to the nuisance under an order 

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conclusively that they were not. The trial court erred in 

submitting the issue of ownership to the jury. Accordingly, we 

reverse. 

Reversed.

 of abatement. 

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