There was a 1935 Agreement that runs with the land that says the Commonwealth of Virginia is to provide the landowner for a crossing of the river. But I could not get any authority to recognize this Agreement or to offer a realistic alternative. Edward White's friend Senior Assistant Arrorney General John J. Beall, Jr., employed the illegal use of police power to ignore this clause. ("It was the opinion of the Attorney General, then and it still is today, that the inherent police power that the Department possesses would permit the Department to require the landowner to construct those features.")
"A road way is to be provided for a foard [ford] crossing at appx sta 1094+50"
I don't understand why the 1935 agreement that runs with the land that I owned as an individual in Highland County, Virginia, was not recognized. It means what it says.
1997.11.17 (Stuart Waymack to Anthony O’Connell)
"November 17, 1997
Mr. Anthony M. O'Connell
21 6 Governor's Lane, Apartment 12
Harrisonburg. Virginia 22801
Dear Mr. O'Connell:
As I promised when we met on Friday, November 14, 1997, enclosed is a copy of the September 15, 1935, agreement between VDOT and the "Hiners". Also enclosed is a copy of the actual deed conveying the property to VDOT, which is dated October 21, 1935, and recorded in the Highland County Courthouse in Deed Book 29, Pages 503 through 505.
For your benefit, the Virginia Department of Transportation reads the handwritten section of the agreement with the Hiners to be as follows:
"Consideration: $750.00 for land, fencing, tearing down or moving three buildings, apple and sugar trees, and all damages to residue.
It is agreed the State is to lay a 1" water line from the north side of road at Station 1077+90 to a point back of her house and construct a concrete watering trough 2' x 4' x 2'.
A road way is to be provided for foard crossing at approximate Station 1044+50. 'The timber is reserved by the owner and is to be cut under the standard timber clause.
'The owner agrees to clear the right of way before payment is made and in the event they should fail to do so, the State has the right to remove same and deduct the cost from the above consideration.
(Where handwriting was not clear, the words have been underlined and italicized.)"
(From Stuart Waymack, Director, Right of Way and Utilities Division, November 17, 1997)
As I indicated to you, I have no reason to believe the consideration described was not provided to the Hiners some 62 years ago. Also, the Attorney General's Office has provided comments on the legal aspects of this situation.
Should you need to meet with me again in the future, an appointment arranged through my secretary will assure that I will be here.
S. A. Waymack, Director
Right of Way and Utilities Division
(1) I don't understand why this was transcribed as Station 1044+50 instead of Station 1094+50. Station Station 1044+50 is not on the subject property; Station 1094+50 is on the subject property.
(2) The September 11, 1935, Agreement between the Landowner and the Commonwealth says "A road way is to be provided for a foard [ford] crossing at appx sta 1094+50". This means that the Commonwealth promises to provide a ford crossing for the Landowner at highway station 1094 +50. Highway station 1094+50 is the approximate location where the Landowner's original entrance was destroyed by the relocation of the Jackson River.
(3) I tried to get vehicular access to my property east of the Jackson River for about 16 years; from 1989 to 2005. From reading the Code of Virginia I learned that the Commonwealth replaces entrances they destroy.
(4) I was not aware of the 1935 Agreement until after VDOT's letter of January 5, 1995. VDOT sent me a copy of the 1935 Agreement on August 19, 1996. VDOT sent me their interpretation/transcription of the handwritten portion of the 1935 Agreement on November 11, 1997. I do not understand why VDOT interpretted highway station 1094+50 as 1044+50. Highway station 1044+50 is not within the Landowner's property.
(5) The 1935 Agreement was initally referred to as an "option" agreement. Nothing had expired. The 1935 Agreement is not an option agreement.
(6) The only option given me was to apply for permits which would be my agreeing to provide the access myself. Couldn't those permits be used to justify the Commonwealth not fulfiling the promise of the "A road way is to be provided for a foard crossing at appx sta 1094+50" clause in the 1935Agreement?
(7) Why would anyone enter into an Agreement with the Commonwealth if, according to Edward White's contact in the Attorney General's office, Senior Assistant John Buell, the Commonwealth would decide that it would not have to keep it's promise because of it's "inherent police power"
"The Department of Highways purchased the property that has led to the situation that you face in 1935. Any breach of that bargain with your predecessor in title would have had to be litigated long before now.
With respect to § 33.1-197, the Department of Transportation, successor to the Department of Highways, routinely grants entrance permits, subject to being satisfied that the safety of the users of such entrance and those on the main highway will not be compromised by the placement and utilization of the entrance. Construction of the entrance, however, is the responsibility of the landowner, including such items as curb and gutter or deceleration or acceleration lanes. The Attorney General in April 1975 was asked for an opinion whether a landowner can be required by the Department of Highways "to construct at his own expense, a turn-off or deceleration lane on the public right of way." It was the opinion of the Attorney General, then and it still is today, that the inherent police power that the Department possesses would permit the Department to require the landowner to construct those features. I enclose a copy of that opinion to then Delegate D. French Slaughter. While that opinion directly addressed § 33.1-198 (commercial entrances) the reasoning is equally applicable to 8 33.1-197 (private entrances). Thus, the Department of Transportation has no responsibility under the entrance permit statutes to construct the bridge that apparently is necessary to reach Route 220 from your property."