once again that the east boundary of the city is the Potomac River. The state law also provides that the Alexandria east boundary "shall embrace all wharves, piers, docks and other structures" erected along the Potomac River. Va.Code 15.1-1031.
This brief history of the City of Alexandria demonstrates that the east boundary of the city was and is the Potomac River. Thus, it is clear that the Tract lies within the city, and is not within some other jurisdiction. In so holding, the Court emphasizes that the above relates to the political boundary and not to the ownership of the property making up the Tract.
Thus, the Tract claimed by the United States, Alexandria and OTYB lies within the City of Alexandria, Virginia.
It is not necessary to determine the question of title as between the United States and Alexandria in order to decide the instant motions. If OTYB asserts a valid title claim against the property making up the Tract, then it is obvious that title does not lie with either the United States or Alexandria, and the question concerning the Tract is at an end. On the other hand, if OTYB cannot demonstrate that, either there is a factual issue as to the question of its purported lack of a valid title claim, or if there is not a factual issue, that it asserts a valid title claim to the Tract, then summary judgment most be entered against OTYB. In the latter event, the case will then move on to the next step insofar as the Tract is concerned, that being determination of the respective claims asserted by the federal and city governments.
F. Old Town Yacht Basin's claim based on adverse possession.
OTYB claims title to Parcel A by adverse possession as well as under a deed, and claims title to Parcels B-1, and D by adverse possession. Alexandria contends that Parcels A and D are public streets and the city claims title to Parcels B-1, B-2 and C under deeds. As was noted above, Parcels B-2 and C are not at issue in this proceeding. The United States claims title to all currently submerged lands in the bed of the Potomac River and to all fast lands along the Alexandria waterfront that were created by filling in the Potomac River after 1791. In brief, the United States contends that after the American Revolution, Maryland owned the bed of the Potomac River to the high water mark on the Virginia bank in fee simple. As a result of the 1791 cession, Maryland conveyed all of its right, title and interest in the bed of the Potomac River within the limits of the District of Columbia which included the Potomac River at Alexandria, to the United States, and that under federal law and the law of Maryland in 1801, the law applicable to the United States' claim for title, title to any fill placed on the bed of the Potomac River after 1791 remains in the United States as sovereign owner of the bed.
Turning to the claims asserted by OTYB, assuming arguendo that the United States' claim to title is a valid one, then it follows that parcels A, B-1 and D are owned by the United States. OTYB cannot acquire title to lands owned by the United States by way of adverse possession. See United States v. California, 332 U.S. 19, 67 S. Ct. 1658, 91 L. Ed. 1889 (1947); United States v. Denby, 522 F.2d 1358 (5th Cir. 1975), reh. denied, 525 F.2d 693 (1975); United States v. 1629.6 Acres of Land, More or Less, in Sussex County, State of Delaware, 503 F.2d 764 (3d Cir. 1974); United States v. Springer, 321 F. Supp. 625 (C.D. Calif. 1974), aff'd per curiam, 478 F.2d 43 (9th Cir. 1972); United States v. Osterlund, 505 F. Supp. 165 (D. Colo. 1981).
If the United States' claim to Parcels A, B-1 and D is not a valid claim, then the question arises as to whether the claim asserted by Alexandria is valid. With respect to Parcels A and D, Alexandria contends that those parcels, which would be the logical extensions of Wilkes Street and Gibbon Street east of Union Street were dedicated as public streets and accepted as such by the city. OTYB disputes this contention.
In Virginia, neither adverse possession nor prescriptive rights can be acquired in property which is affected with a public interest or dedicated to a public use. See Lynchburg v. Chesapeake & Ohio Ry. Co., 170 Va. 108, 195 S.E. 510 (1938); DePriest v. Jones, 2 Va. Dec. 109, 21 S.E. 478 (1895); Bellenot v. Richmond, 61 S.E. 785 (1908). See also, Teter v. Teter, 260 S.E.2d 270, 163 W.Va. 770 (1979). Thus, assuming that Parcels A and D represent extensions of Wilkes Street and Gibbon Street, and further assuming that those parcels have been dedicated for that public use, OTYB would be unable to acquire title to those properties by way of adverse possession.
In 1762, the Virginia legislature enlarged Alexandria to include lands south of a line between what is now Wolfe Street and Wilkes Street. Va. Act 1762, Ch. 25, 7 Hen. Stat. 604. In a deed dated December 20, 1774, one John Alexander dedicated Wilkes Street running to the Potomac River and parallel with Wolfe Street. United States Exhibit 15. In a later deed dated April 21, 1785, Alexander's executors dedicated Gibbon Street running to the Potomac River and parallel with Wilkes Street. United States Exhibit 16. Alexandria has set forth in its memorandum, that it appears that Wilkes and Gibbon Streets were established as a result of the 1762 expansion of Alexandria.
A map prepared in 1763 by George West (Alexandria Exhibit 3) shows that east -- west streets were added to the southern end of Alexandria during that expansion. As the city notes, the map depicts a "Wolf" Street as the southern most named street in Alexandria and shows that the expansion created two additional but unnamed streets south of Wolf which ran to the river. Subsequent maps demonstrate that those two streets immediately south of "Wolfe" Street are Wilkes and Gibbon. See Gilpin Map (Alexandria Exhibit 4).
In 1796, the Virginia legislature, observing that proprietors had laid off lots contiguous to the town of Alexandria, expanded the boundaries of the town to include such areas, an expansion that included Wilkes Street and Gibbon Street. Va. Act 1796, Ch. 32, 2 Va. Stat. 40 as amended by Va. Act 1797, ch. 60, 2 Va. Stat. 122. Under the law applicable at that time, the deeds from John Alexander and his executors amounted to a dedication of Wilkes Street and Gibbon Street and the act of incorporating those areas into the town constituted an acceptance of that dedication.
After Wilkes Street and Gibbon Street had been accepted as public streets, as noted above, the bank of the Potomac River was moved eastward as a result of accretion or fill. When a public street is laid out running to a river, the street automatically extends over any new land created by accretion or fill. See Frater v. Baylen Street Wharf Co., 57 Fla. 63, 49 So. 188 (1909).
Thus, if it is assumed that the title to the Tract is with the United States, then OTYB could not have acquired title to that property by virtue of adverse possession. Assuming that title to the Tract was not with the United States, but with Alexandria, OTYB could not have acquired title by adverse possession to those portions of the Tract which had been dedicated as public streets.
With respect to Parcel B-1, any claim that OTYP would assert against title in the United States by virtue of adverse possession would be defeated for the reasons set forth above. On the other hand, if the United States does not have title in Parcel B-1, the question arises whether OTYB has satisfied the requirements to establish adverse possession. Under the law of Virginia, adverse possession does not result in good title until the possession is actual, exclusive, hostile, open and notorious, accompanied by a bona fide claim of title, and continuous without interruption for a period of 15 years. See McIntosh v. Chincoteague Volunteer Fire Co., 220 Va. 553, 260 S.E.2d 457 (1979); Payne v. Consolidation Coal Co., 607 F. Supp. 378 (E.D. Va. 1985). As Alexandria argues, proof of the element of hostility requires the claimant to show that the possession was adverse to and inconsistent with the title of the true owner. If, the claimant's original possession was with the recognition of the title holders' superior title, then the possession would not be "hostile" to the owner's legal title. See Hall v. Clinchfield Coal Corporation, 161 Va. 177, 170 S.E. 564 (1933). As to the question of "open" and "notorious," OTYB must demonstrate that its possession was open and demonstrated to the extent that it was enough to be known actually or constructively by the title holder of the property who despite this fact failed to take any steps to terminate OTYB's possession and who in effect accedes to it. If the claimant's claim is not accepted by the titleholder, then the claimant's possession is not as a matter of law "open" or "notorious".
With respect to Parcel B, which includes Parcels B-1 and B-2, on September 1, 1955, the then owner of Parcel B, the Southern Railway Company, granted a license to George T. Crowder (Crowder) and Arthur C. Saffelle (Saffelle) for use of Parcel B. Alexandria Statement Of Material Facts As To Which There Is No Genuine Dispute (Alexandria Statement), par. 12 and Exhibit F. Thereafter, on December 19, 1957, Crowder and Saffelle assigned that lease to OTYB. Alexandria Statement, par. 13, Exhibit G. In 1972, after OTYB refused the request of Southern Railway Company to vacate Parcel B, Southern Railway Company filed an eviction action in Alexandria Circuit Court, Southern Railway Company v. Old Town Yacht Basin, Inc., At Law No. 10223, Circuit Court for the City of Alexandria. Id., par. 14. The Circuit Court ruled in favor of the Southern Railway Company in January, 1973, holding that OTYB was holding possession unlawfully. Id., par. 15, Exhibit H. On June 21, 1974, that court issued a writ of possession for Parcel B against OTYB. Id., par. 16, Exhibit I. When OTYB refused to vacate the land, the Virginia Circuit Court held it in contempt on June 25, 1975. Id., par. 17, Exhibit J. Finally, the Southern Railway Company conveyed all of Parcel B to Alexandria. Id., par. 18, Exhibit E.
As the above demonstrates, OTYB occupied Parcel B with the consent of the owner between 1957 and as late as 1972 when the Southern Railway Company filed an action to have OTYB vacate the property. Between 1972 and the present date, OTYB has been in litigation over the ownership of Parcel B; accordingly, it is clear that OTYB's possession of Parcel B was not "open" and "notorious." This being the case, OTYB could not have established title by virtue of adverse possession.
The facts relating to Parcels A, D and C are similar. Alexandria acquired title to Parcel C by deed on August 11, 1942. Id., par. 25, Exhibit L. On March 29, 1956, Alexandria entered into a lease agreement for a term of ten years with Alexandria Marina, Inc. The lease was signed on behalf of the company by Crowder and Saffelle, and the agreement was later assigned to OTYB. Id., par. 26, Exhibit M. Prior to the end of the lease agreement on Parcel C, Alexandria and OTYB engaged in negotiations in an effort to agree to new terms for the lease of the property, see Exhibit N, and during this period OTYB's occupation of Parcel C occasionally spilled over onto Parcels A and D. Id., par. 27. When Alexandria and OTYB could not reach an agreement on a new multi-year lease, the Alexandria City Manager informed OTYB that it could occupy the property on a month to month basis with rent at the rate of $ 300.00 per month. Id., par. 28. OTYB paid Alexandria $ 300.00 per month between July 1968 to December 1971, at which time OTYB ceased making payments. Id., par. 29. Alexandria then filed an action against OTYB to recover rental amounts due on the rental agreement, and on July 10, 1974, the Alexandria Circuit Court entered judgment for Alexandria in the amount of $ 7,800.00. Id., pars 30, 31, Exhibit O. When OTYB refused to honor the judgement, Alexandria served notice on OTYB to pay the rent or deliver Parcel C to the city. Id., par. 32, Exhibit P. OTYB filed a motion for temporary restraining order in this case on November 21, 1974, and that motion was granted on November 26, 1974 and extended to December 4, 1974. Id., pars. 33 and 34. Alexandria's efforts to collect the rent or have OTYB vacate Parcel C were fruitless, and on one occasion, the United States Court of Appeals for the District of Columbia Circuit enjoined Alexandria from seeking to remove OTYB from the property. Id., par. 36, Exhibit R (Order entered in United States v. Herbert Bryant, Inc., 177 U.S. App. D.C. 152, 543 F.2d 299 (D.C.Cir. 1976)).
It is clear then that to the extent that OTYB may seek to acquire title to Parcels A and D, pursuant to its occupation of Parcel C, the claim must fail. As was the case with Parcel B, OTYB entered the property by agreement with Alexandria, remained on the property pursuant to the agreement, and when the agreement broke down, efforts by Alexandria to collect rents due or to have OTYB vacate the property were restrained by orders entered in the District Court and the Court of Appeals. Under these circumstances, OTYB cannot make out a claim that its possession of the property was "open" and "notorious." To the extent that OTYB's occupation of Parcel C spilled over onto Parcels A and B, and to the extent that OTYB's claim to Parcels A and D is based upon that occupation, it is clear that OTYB cannot claim title to Parcels A and D based on adverse possession for the same reason it cannot claim title to Parcel C.
Based upon the above discussion, the Court must conclude that any claim OTYB asserts to the Tract by virtue of adverse possession again the United States or Alexandria is without merit.
G. Claims Made By Old Town Yacht Basin Based On Deed.
The last issue raised with respect to the claim made by OTYB is whether it holds a valid deed to the Tract or any portion of the Tract. It is the Court's understanding that OTYB also claims title to Parcel A by virtue of a deed. The deed is a quitclaim deed, recorded on April 5, 1957, from Edward Dean, sometimes known as "Turk" Dean to Crowder and Saffelle which purports to convey title to all or almost all of Parcel A. Alexandria Statement, par. 6, Exhibit C. By deed recorded on October 23, 1957, Crowder and Saffelle purported to convey all or almost all of Parcel A to OTYB. Id. par. 7, Exhibit D. OTYB does not claim title to Parcel A or any portion thereto by any deed other than by virtue of the above deed from Crowder and Saffelle. Id., par. 8, OTYB Admissions No. 39.
Alexandria contends that Dean did not acquire title to Parcel A or any portion thereof by virtue of a deed or any other legal instrument; in other words, Alexandria contends that Dean did not convey any title to Crowder and Saffelle because he had no title to convey. If this be the case, then obviously, Crowder and Saffelle could not have conveyed any title to OTYB.
To support its claim with respect to the questioned Parcel A deed, Alexandria relies upon the affidavit of Frederick R. Garner, Jr., who has served as a title examiner since December 7, 1953. Alexander Statement, par. 2, Exhibit B (Garner affidavit). Garner states that he has reviewed the land records of Parcel A and that in this opinion, Parcel A is a part of Wilkes Street. Exhibit B, par. 6. He traced the property back to May 18, 1785. Id., par. 7. He found only two deeds conveying title to the bed of Wilkes Street east of Union Street. Id., par. 12. One deed was the above mentioned deed from Dean to Crowder and Saffelle. He notes that the deed recites that Dean has been in possession of the property for more than 40 years. Id., par. 12(a), Exhibit C. Garner states that his review of the records reflects that there is no record of Dean ever acquiring title to the property, and his review of the records relating to the Dean claim went back as far as 1910. Id. He expresses the opinion that the deed from Dean to Crowder and Saffelle is a complete nullity. Id. The second deed was the deed from Crowder and Saffelle to OTYB.
A careful review of the Dean deed reveals that Dean does not allege that he acquired title by deed or other instrument, but rather, he suggests he acquired title by adverse possession. The deed provides that: "The party of the first part [Dean] represents that he has been in hostile, open, exclusive, notorious, visible, continuous and uninterrupted possession and control of the land hereby conveyed for more than forty years under a claim of ownership of said land." Exhibit C.
Assuming that Dean purported to acquire title by adverse possession, his claim faces the same impediments as the claim asserted by OTYB; that is, he sought to claim the land by adverse possession, but he cannot do so since Parcel A was dedicated as a public street, if owned by Alexandria, or was owned by the United States. Under these circumstances, the Court must conclude that OTYB did not acquire title to Parcel A by deed.
In sum, the Court concludes that the 1945 line establishes the political boundaries between the District of Columbia and the Commonwealth of Virginia but that Act does not affect the title of the claimants to the Tract, namely, the United States, Alexandria, or OTYB. The Court further concludes that it can dispose of the instant cross motions without resolving the title dispute between the United States and Alexandria. The Court further concludes that the Tract is located in the Commonwealth of Virginia and in the City of Alexandria. Finally, the Court concludes that OTYB cannot establish title to the property, or any portion thereof, by virtue of adverse possession. To the extent that OTYB seeks to establish title to Parcel A, by virtue of the Dean deed, that claim must also fail because the deed from Dean to Crowder and Saffelle reflects that Dean claimed title to the land by virtue of adverse possession. Parcel A is the extension of Wilkes Street, and as this Court has already recognized, one cannot acquire title to land by adverse possession when the land has been dedicated for a public purpose, here, a street. Moreover, while Dean asserted in his quit claim deed to Crowder and Saffelle that he had title to the land by virtue of adverse possession, nothing in the record supports that claim.
Taking all of the above matters into consideration the Court must conclude that OTYB has not asserted a valid claim to any of the parcels making up the Tract. Accordingly, the Court denies OTYB's motion for summary judgment and grants Alexandria's motion for summary judgment in part and denies it in part. So much of Alexandria's motion which contends that OTYB does not have title to the Tract or any portion thereof, is granted, so much of Alexandria's motion for summary judgment which contends that there are funds and rents due from OTYB to Alexandria by virtue of Alexandria's ownership of the property, cannot be determined at this time and must await a decision respecting the claims made by Alexandria and the United States. To that extent, Alexandria's motion for summary judgment is denied.
An appropriate Order has been entered.
Date: May 14, 1990
[SEE APPENDIX I IN ORIGINAL]
ORDER -- May 14, 1990, Filed
This comes before the Court on cross motions for summary judgment filed by the City of Alexandria and Old Town Yacht Basin, Inc. After giving careful consideration to the motions and opposition thereto, together with the record in this case, and the Memoranda submitted by the United States, the Court concludes, for the reasons set forth in the accompanying Opinion that the motion for summary judgment submitted by Old Town Yacht Basin, Inc. must be denied, and that the motion for summary judgment submitted by the City of Alexandria should be granted in part and denied in part, and it is further
ORDERED that Old Town Yacht Basin, Inc. does not have valid title in the Tract of land set forth in Appendix 1, said Tract made up of Parcels A, B-1, B-2, C and D; and it is further
ORDERED that the Court will enter such other orders as may be necessary to effectuate this judgment.
[SEE ILLUSTRATION IN ORIGINAL]