Present: All the Justices 

WILLIAM M. BARNER, ET AL. 

 OPINION BY 

v. Record No. 022710 JUSTICE LAWRENCE L. KOONTZ, JR. 

September 12, 2003 

EDWARD A. CHAPPELL, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG 

AND COUNTY OF JAMES CITY 

Samuel T. Powell, III, Judge 

In this appeal, we consider whether the chancellor 

correctly determined that a restrictive covenant prohibiting the 

building of a house, garage, or other structure on a lot in a 

residential subdivision is enforceable by one or more 

neighboring landowners. We further consider whether the 

chancellor correctly determined, in the alternative, that the 

restriction is enforceable by the neighboring landowners as an 

equitable servitude. 

BACKGROUND 

Beginning in 1922, John Garland Pollard, who would 

subsequently serve as the Mayor of the City of Williamsburg and 

Governor of Virginia, acquired property in the City of 

Williamsburg and James City County along what was then known as 

Texas Avenue. Between 1924 and 1938, Governor Pollard 

subdivided and sold portions of that property for use in the 

construction of single-family homes. A recorded plat of a 

portion of Governor Pollard’s property dated May 30, 1930 
reflects the subdivision of the property at that time.1 A short, 

dead-end road, subsequently designated “Ballard Lane,” extending 

from Texas Avenue allowed access to the parcels designated on 

the plat as Lots 7, 7A, B, E, and F. A U-shaped road connecting 

to Texas Avenue at two points, subsequently referred to in some 

deeds as “Hairpin Road,” allowed access to the parcels 

designated on the plat as Lots A, B, C, D, 7, 8, and 9.2 In 

addition, another parcel, bounded by Texas Avenue and the 

interior curve of Hairpin Road, was designated as a “park.” 

Along the outer curve of Hairpin Road between Lot 9 and Texas 

Avenue there was a large undivided parcel that was not given a 

number or letter designation. At the time the plat was 

prepared, Lots A, B, and 9 had already been conveyed. Over the 

next two years, Governor Pollard conveyed the remaining 

designated parcels, with the exception of Lot 7 where he 

maintained his residence. 

The park, which remains undeveloped to this day, contains a 

natural, wooded ravine. The deeds conveying the lots designated 

as A, B, C, D, E, F, and 9 from Governor Pollard to the original 

 

1

 See the attached copy of the 1930 plat. 

2

 The U-shaped road was subsequently designated “Pollard 

Park,” which also became the common designation for the 

neighborhood. For clarity, we will refer to the road as 

“Hairpin Road” and the neighborhood as “Pollard Park” in this 

opinion. 

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grantees contain provisions requiring that the park be 

maintained perpetually for the mutual benefit of the owners of 

lots in Pollard Park. Additionally, provisions in these deeds 

limit development on the respective lots to single-family 

residences, and impose other construction restrictions such as 

twenty-foot setback lines and specified building sites. The 

deeds expressly state that these restrictions shall run with the 

land. 

In 1932, Mary W. Craighill (Craighill) was the record owner 

of Lot A which is adjacent to Lot 8. By a deed dated December 

3, 1932 and recorded on June 20, 1935, Governor Pollard conveyed 

Lot 8, a parcel containing less than one-tenth of an acre 

located at the midpoint of the outer curve of Hairpin Road, to 

Craighill (the Pollard/Craighill deed). This deed provides that 

“[t]he property hereby conveyed is to be used in connection with 

[Lot A] and no house, garage or structure of any kind shall be 

erected thereon.”3 This deed further provides that the 

restriction shall run with the land “forever.” The 

Pollard/Craighill deed is the only deed relating to the 

 

3

 On January 29, 1937, Craighill conveyed her interest in 

Lot A to a third party. She again became the owner of Lot A by 

1951. No evidence was produced that the severance of title of 

Lot A and Lot 8 constituted a breach of this provision of the 

deed, transforming the restriction into a personal covenant that 

expired upon the death of Governor Pollard. 

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conveyance of lots in Pollard Park that restricts all 

construction. 

At the time of the conveyance of Lot 8 to Craighill, 

Governor Pollard had previously conveyed all the other lots 

designated on the 1930 plat by either numbers or letters with 

the exception of Lot 7, where he continued to reside. Governor 

Pollard, however, retained ownership of the undivided parcel 

located on Hairpin Road between Lot 9 and Texas Avenue. On 

January 16, 1937, Governor Pollard conveyed a portion of this 

parcel to Marion P. Morecock. The deed conveying this property 

contained the same restrictions concerning use of the property 

for residential purposes and preservation of the park as the 

deeds conveying the other Pollard Park lots prior to the 

conveyance of Lot 8. Through a series of subsequent 

conveyances, Eugene R. and Maureen B. Tracy (the Tracys) 

acquired this property on July 1, 1985. 

Following Governor Pollard’s death in 1937, the remainder 

of the previously undivided parcel was subdivided into two lots 

which were conveyed in 1938 by the executors of Governor 

Pollard’s estate to the predecessors-in-title respectively of 

Lloyd A. Julien, Jr. and Sarah B. Julien (the Juliens) and Pat 

C. Fulmer and Robert M. Fulmer (the Fulmers). The original deed 

in the Juliens’ chain of title contained restrictions similar to 

those in the deeds conveying lots in Pollard Park prior to 

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Governor Pollard’s death; the original deed in the Fulmers’ 

chain of title did not contain these restrictions, although it 

did reference the 1930 plat. On August 5, 1941, the executors 

conveyed Lot 7 to the predecessor-in-title of Genevieve T. 

Barrett and Jack C. Barrett (the Barretts). The original deed 

in the Barretts’ chain of title contained restrictions similar 

to those in the deeds conveying other lots in Pollard Park prior 

to Governor Pollard’s death. 

By recorded deed dated August 5, 1998, William Maxwell 

Barner, III and Sandra E. Barner (the Barners) became the owners 

of Lot 8.4 Because they failed to conduct a title examination, 

the Barners did not have actual notice of the Lot 8 building 

restriction originating from the Pollard/Craighill deed. 

However, the Barners do not dispute that the restriction was 

discoverable within their chain of title and, thus, that they 

had record notice of this restriction. Soon after acquiring Lot 

8, the Barners made preparations to construct a single-family 

residence upon this lot.5

 

4

 The Barners are also the record owners of Lot A where they 

currently reside. 

5

 To build this home, the Barners needed a variance because 

of certain setback requirements in the Williamsburg Zoning 

Ordinance. On November 3, 1998, the Board of Zoning Appeals for 

the City of Williamsburg granted the requested variance for Lot 

8. An appeal of that decision is pending in the trial court 

until the resolution of this appeal. 

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On August 26, 1999, the Tracys, the Juliens, the Fulmers, 

Edward A. Chappell, Susan S. Geary, William T. Geary, Elizabeth 

A. Rutgers, Marcia T. Smith, Victor H. Smith, and Joseph S. 

Wheeler (collectively, the neighboring landowners), who were at 

that time residents and record owners of lots in Pollard Park, 

filed a bill of complaint seeking to enforce the restriction in 

the Pollard/Craighill deed.6 The bill of complaint alleged that 

the construction of a residence on Lot 8 would violate this 

covenant and, therefore, requested that the Barners be 

permanently enjoined from building a residence thereon. 

Although the bill of complaint did not state the precise theory 

under which all the neighboring landowners asserted that they 

were entitled to enforce the covenant, it subsequently developed 

that the majority of these parties, who trace their ownership of 

lots in Pollard Park to deeds that predated the 

Pollard/Craighill deed, were relying upon the theory that the 

restrictive covenant represented an equitable servitude intended 

to benefit all the lots in Pollard Park. 

 

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 The current record owner of Lot 7, Genevieve Barrett, also 

joined in the bill of complaint, but was granted a nonsuit early 

in the proceedings below. Two other lot owners who initially 

joined in the suit have subsequently sold their respective 

properties, although they have not formally withdrawn from the 

suit. However, the parties remaining in the suit with a current 

interest in the litigation are sufficient to allow us to 

consider all the issues raised in this appeal. 

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During an ore tenus hearing held September 27, 2001, the 

parties presented conflicting evidence on the purpose of the 

covenant. The Barners’ expert witness testified that, in 1932, 

the City of Williamsburg had a sewage disposal problem and that 

Governor Pollard supported a drainage plan which would run a new 

sewer line through Lot 8. The Barners contended that the 

building restriction on Lot 8 was intended solely to prevent any 

structures from obstructing the proposed sewer line. Because 

the Barners were willing to reroute the existing sewer line 

around the footprint of their proposed residence, they asserted 

that the covenant was no longer needed for its intended purpose 

and, thus, had lapsed. 

On cross-examination, the Barners’ expert testified that 

Lot 8 was naturally a part of the ravine in the center of 

Pollard Park prior to the construction of Hairpin Road. 

Additionally, he testified that Governor Pollard could have 

chosen to place the sewer line along the edge of Lot 8 instead 

of permitting the sewer line to bisect this lot so that no 

dwelling could be built on it. The neighboring landowners 

contended that this indicates that facilitation of the proposed 

sewer plan was not Governor Pollard’s primary purpose in 

creating the building restriction on Lot 8. Rather, they 

contended that Governor Pollard’s intention, as demonstrated by 

the building restrictions in all the deeds conveying lots in 

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Pollard Park, was to preserve the natural, green character of 

the subdivision. 

In a final decree dated August 21, 2002, the chancellor, 

based on the evidence and a view of Pollard Park, found that 

Governor Pollard intended to preserve Lot 8 as an open, green 

space and that the purpose of the covenant, therefore, had not 

lapsed. The chancellor further found that there was sufficient 

vertical privity between at least one of the neighboring 

landowners and Governor Pollard and that the restrictive 

covenant in the Pollard/Craighill deed met all other 

requirements for a covenant running with the land. Thus, the 

chancellor determined that this covenant could be enforced 

against the Barners. The chancellor also expressly found, in 

the alternative, that the restriction was enforceable by all the 

neighboring landowners as an equitable servitude. Based upon 

these findings, the chancellor permanently enjoined the Barners 

and their successors from building a house, garage, or structure 

of any kind on Lot 8. We awarded the Barners this appeal. 

DISCUSSION 

Under well established principles of appellate review, we 

will affirm the chancellor’s judgment unless it is plainly wrong 

or without evidence to support it. Code § 8.01-680. Moreover, 

we consider the evidence in the light most favorable to the 

parties who prevailed in the proceedings before the chancellor. 

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Willard v. Moneta Building Supply, Inc., 258 Va. 140, 149, 515 

S.E.2d 277, 283 (1999). 

We first consider whether the chancellor correctly 

determined that the restrictive covenant in the 

Pollard/Craighill deed originally conveying Lot 8 in Pollard 

Park is enforceable by at least one of the neighboring 

landowners. A restrictive covenant is enforceable if a 

landowner establishes: (1) horizontal privity; (2) vertical 

privity; (3) intent for the restriction to run with the land; 

(4) that the restriction touches and concerns the land; and (5) 

that the covenant is in writing. Waynesboro Village, L.L.C. v.

BMC Properties, 255 Va. 75, 81, 496 S.E.2d 64, 68 (1998); Sloan 

v. Johnson, 254 Va. 271, 276, 491 S.E.2d 725, 728 (1997). The 

parties agree that the only requirement at issue in this appeal 

is whether any of the neighboring landowners can establish 

vertical privity to enforce the restrictive covenant. In 

addition, the Barners contend that the chancellor erred in 

failing to find that the purpose of the restrictive covenant has 

lapsed. 

Vertical privity exists when there is privity between the 

original parties and their successors-in-interest. Id. More 

precisely, vertical privity requires that the benefit of a 

restrictive covenant extend only to “one who succeeds to some 

interest of the beneficiary in the land respecting the use of 

9
which the promise was made.” Old Dominion Iron & Steel Corp. v. 

Virginia Electric & Power Co., 215 Va. 658, 663, 212 S.E.2d 715, 

719-20 (1975) (citing Restatement of Property § 547 (1944)). In 

the present case, the neighboring landowners who trace their 

ownership of property in Pollard Park through chains of title to 

conveyances from Governor Pollard that pre-date the 

Pollard/Craighill deed have not established the necessary 

vertical privity. This is so because the interests of their 

predecessors pre-date the creation of the covenant in the 

Pollard/Craighill deed and, thus, they did not succeed “to some 

interest of the beneficiary” of the covenant.7 These landowners 

are Edward A. Chappell, Susan S. Geary, William T. Geary, 

Elizabeth A. Rutgers, Marcia T. Smith, Victor H. Smith, and 

Joseph S. Wheeler. 

By contrast, the Tracys, the Juliens, and the Fulmers trace 

their ownership of property in Pollard Park to original grantees 

in deeds executed after the execution of the Pollard/Craighill 

deed and, thus, meet the requirements for vertical privity 

 

7

 We recognize that the beneficiary of an express covenant 

in a deed may not always be limited to the grantor. Here, 

however, there was no express intention to extend the benefit of 

the covenant directly to third parties. The absence of such an 

express extension of the benefit of the covenant does not, 

however, preclude the possibility that third parties may claim 

the benefit as an equitable servitude, as will be discussed 

infra. 

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because they can trace their interests directly to Governor 

Pollard, the beneficiary of the restrictive covenant contained 

in that deed. 

There is no merit to the Barners’ contention that the 

Tracys, the Juliens, and the Fulmers do not have the necessary 

vertical privity because their lots were originally a part of 

the previously undivided parcel between Lot 9 and Texas Avenue 

as shown on the 1930 plat. The mere fact that this parcel was 

not given a specific number or letter designation on this plat 

is of no significance and does not preclude the conclusion that 

Governor Pollard intended for this parcel also to benefit from 

the restriction imposed upon Lot 8. No evidence in the record 

suggests that Governor Pollard intended only Lot 7, upon which 

he maintained his residence, to benefit from the restriction he 

placed upon Lot 8. 

Once a restrictive covenant has been established, the party 

asserting that the restriction is unenforceable because changed 

conditions have defeated the purpose of the restriction has the 

burden of proving that the purpose of the restriction no longer 

exists. Conditions must have changed so substantially that the 

essential purpose of the covenant is defeated. Smith v. 

Chesterfield Meadows Shopping Center Associates, L.P., 259 Va. 

82, 84, 523 S.E.2d 834, 835 (2000); Booker v. Old Dominion Land 

Co., 188 Va. 143, 148, 49 S.E.2d 314, 317 (1948). The only 

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evidence presented by the Barners regarding this issue was that 

Governor Pollard supported a plan to run a sewer line through 

Lot 8, the plan would not have worked without the sewer line in 

that approximate location, and currently the sewer line can be 

relocated on Lot 8 so as not to prevent the construction of a 

single-family home upon the lot. 

The neighboring landowners, however, presented sufficient 

evidence to support the chancellor’s determination that the 

purpose of the restrictive covenant was to maintain Lot 8 as an 

open, green area in Pollard Park. This purpose is consistent 

with the setback requirements and building restrictions in the 

various deeds and the provisions that the ravine area be 

maintained as a park. The evidence that Lot 8 was a natural 

extension of the ravine prior to the construction of Hairpin 

Road is also consistent with the determination that the 

grantor’s intent was to maintain Lot 8 as an open, green area. 

Finally, the chancellor’s view of Pollard Park clearly 

established that the conditions in the neighborhood have not 

changed so substantially that the purpose of the restrictive 

covenant has been defeated. Indeed, the evidence shows that 

Pollard Park remains substantially unchanged. Accordingly, we 

hold that the chancellor’s determination that the restrictive 

covenant on Lot 8 is enforceable by at least one of the 

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neighboring landowners is supported by the evidence and not 

plainly wrong. 

Finally, we now address the question whether those 

landowners who acquired their interests in lots in Pollard Park 

through chains of title to conveyances from Governor Pollard 

that pre-date the Pollard/Craighill deed may enforce the 

restriction contained in that deed as an equitable servitude 

benefiting their properties. 

By definition, an equitable servitude can only arise when a 

common grantor imposes a common restriction upon land developed 

for sale in lots. Forster v. Hall, 265 Va. 293, 300, 576 S.E.2d 

746, 749-50 (2003) (citing Duvall v. Ford Leasing Development 

Corp., 220 Va. 36, 41, 255 S.E.2d 470, 472 (1979)). The burden 

is on the party claiming the benefit of the equitable servitude 

to show that a common restriction was intended. Minner v. City 

of Lynchburg, 204 Va. 180, 188, 129 S.E.2d 673, 678 (1963). 

The prohibition against erecting a “house, garage or 

structure of any kind” is not a common restriction on the lots 

in Pollard Park because only Lot 8 is restricted in that way. 

Accordingly, we hold that the chancellor erred in determining 

that this restriction contained in the Pollard/Craighill deed is 

enforceable as an equitable servitude. 

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CONCLUSION 

For these reasons, we will affirm the chancellor’s judgment 

that Lot 8 is burdened by a restrictive covenant that is 

enforceable by those neighboring landowners who acquired their 

interests through original grantees in deeds executed after the 

execution of the Pollard/Craighead deed. In this case, those 

neighboring landowners are the Tracys, Juliens, and Fulmers. We 

will reverse the chancellor’s judgment that the restrictive 

covenant is enforceable by the other neighboring landowners as 

an equitable servitude, and enter final judgment upholding the 

permanent injunction issued against the Barners. 

Affirmed in part,

reversed in part,

and final judgment. 

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