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Neighbors Dispute Who Owns Mystery Parcel

Who owns the land? Who wants it, and how can they get it?

Those are the questions being carved up this Thanksgiving by the residents in the 8500 and 8600 blocks of Buckboard Lane, Riverside Gardens, and their adversaries, over two plots some considered to be part of their "back yard."

In both cases the primary dispute centers around whether the residents have acquired ownership of the land through adverse possession or whether it belongs to those claiming legal ownership through deed. This has led to suit and countersuit.

The players in the initial evolving drama are Alexandria attorney James D. Turner; another Alexandria attorney and resident of 8513 Buckboard Lane, John W. Toothman; and residents Michael Falvey, 8630 Buckboard Lane, president, Riverside Gardens Civic Association; Thomas and Norman Roberts, 8623 Buckboard Lane; Charles and Susan Burroughs, 8515 Buckboard Lane; and the James D. Cosseys, 8605 Buckboard Lane.

CENTRAL TO THIS DISPUTE is a 50-foot-wide strip of land that runs from Fort Hunt Road to Elkins Street, just behind the properties on Buckboard Lane. It is identified on Fairfax County Tax Maps 102-3 and 102-4 as Lot 64. It is an alleged abandoned railroad right of way, once a part of the railway that carried passengers to and from Mount Vernon in the early 20th century.

According to a letter dated May 15, 2002, from James D. Cossey to Mount Vernon supervisor Gerald W. Hyland (D), when the rail carrier ceased operating in approximately 1930, the right of way reverted to the heirs of the original owners, identified as the Hunters. However, "these heirs have never been located," and "Fairfax County zoning personnel characterize Lot 64 as undevelopable," Cossey said.

Cossey goes on to explain, "Every other part of the old railroad right of way has been developed. For example, Wittington Boulevard is the old right of way, and the right of way extended northeastward through the property now occupied by Heritage Presbyterian Church and Waynewood subdivision. Perhaps there were different owners for these parts of the right of way, but clearly, development has occurred on all other parts of the abandoned right of way."

Over the years various property owners along Buckboard Lane have taken parts of the old right of way into their back yards. Some just assumed that the area would remain in its natural state as a wooded area behind their properties.

One of the primary points of the dispute is whether the land in question has accrued to the Buckboard Lane residents by "adverse possession." This is the dividing line between the various lawyers.

AS DEFINED BY BLACK'S LAW DICTIONARY, adverse possession is "a method of acquisition of title by possession for a statutory period under certain conditions." In Virginia that "statutory period" is 15 years.

However, there are other elements cited by Black's: (1) "The possession must be actual”; (2) it depends on "intent of occupant to claim and hold real property in opposition to all the world;" and (3) "payment of taxes alone is not sufficient in itself to establish adverse possession."

All was well until one day a construction crew showed up on a parcel of land immediately behind 8623 Buckboard Lane and commenced to clear it in preparation for building a house. The crew was working on orders from James Turner, who claimed he had acquired ownership of that plot from the heirs to the old right of way. Others claimed the heirs had not been located for years.

Among the residents’ counterclaims was (1) they had acquired the land through adverse possession and (2) there should have been public notice of Turner's intent to develop.

"I bought the property, and I'm building," Turner said.

He displayed documents indicating the purchase of Lot 44A, the one behind the Roberts' home, in 1991. The settlement date was listed as Nov. 15, 2000.

"I signed a contract with Ruth Higgins to buy Lot 44 A. She was represented to me and attested to be an heir. My deed comes from Ruth Higgins to me," Turner said.

ON OCT. 9, an open meeting was held by the civic association to which Hyland was invited and presented with a list of questions in an attempt the clarify the question, "Whose land is this?"

Under current law, if an owner has what is known as "a lot by right," no notice is required to surrounding landowners to commence development of that plot. "This is true throughout the county and is particularly applicable to infill development," Hyland clarified.

Following the meeting, Hyland asked the County Site Inspection Office to review the situation. On completion they reported, we "found it to be in general conformance with the approved site plan."

They also noted, "parcel of land ... Parcel 44 is owned by James D. Turner, trustee. Records indicate Turner acquired title by a quitclaim deed that was recorded among the land records of Fairfax County on April 18, 2001, in Deed Book 11840, Page 662. ... Turner paid $52,500 for the property."

The report to Hyland continues, "However, a review of the instrument ... suggests that this document may not have conveyed to Mr. Turner title to the entire parcel in question." The reason given in the report is "the person identified as ... Ruth Theresa Higgins" is reported "as only a one-sixth owner of the parcel.

"It appears Higgins acquired her partial interest by inheritance. As a result, in order to determine with certainty the identities of all the owners of the parcel, a title search should be performed." Turner says this has already been done as an element of the sale.

To further cloud the matter, county tax records indicate, on Tax Map 102-3 (1), Parcel 44A as owned by John M. Ballenger, trustee. These same records attest Ballenger acquired title by a recorded instrument on April 29, 2001. Supposedly Ballenger paid $4,000 to Roger Earl Coffman, Diane L. Coffman and Katheryn E. Parker for the property.

THE COUNTY DECIDED that, based on research, it had no ownership interest in the properties and that a title search would have to be done by a private attorney or title company for each property.

Robert Dittman, chief, Site Inspections, gave the following answers to questions raised:

* The developer has a right of way for ingress and egress by Fairfax County;

* He has the necessary permits for clearing and grading;

* The builder has the necessary permit to construct a 1 1/2-story dwelling with a basement;

* Building on the lot is "by right";

* Access is obtained through an existing easement. Since

access is being obtained through such an easement, the "public is not required to be informed. The easement is already a part of the public record." That easement comes off Elkin Street at its intersection with Linton Lane.

Among those opposed, only Roberts and Cossey would comment. Falvey said, "The whole situation has been just too stressful, and I have no comment."

When reached by phone, Susan Borroughs would offer no comment. John Toothman did not return a series of phone calls to his Old Town Alexandria office, 300 N. Lee St. He heads up a group known as "The Devil's Advocate," which specializes in litigation advocacy, according to a spokesperson in that office.

The Cosseys indicated they were not directly affected by the position of either side in the controversy.

Roberts appears to be the most impacted by Turner's actions, since his property backs up to the lot in question.

"To wake up one morning and find a bulldozer and surveyors out there working was rather unnerving," Roberts said.

As a result of that bulldozer and surveyor, the lot has been cleared, and there is now a foundation on the site. But the rest of the action, thus far, has been at the opposite end of the county in the courthouse.

ANOTHER ELEMENT of this scenario, linked only by a common engagement with the rear of the properties on Buckboard Lane and John Toothman, is a dispute between Clarence W. Gosnell Inc., Toothman and other Buckboard Lane residents over a plot near the intersection of Fort Hunt Road, Buckboard Lane and Old Stage Road.

Here again the claim of adverse possession is being raised, this time by Toothman, who lives at 8513 Buckboard Lane. According to documents, Toothman has alleged he owns all or part of the plot in question, referred to as "the Gosnell lot," through adverse possession.

The old railroad right of way is cited by attorneys for Gosnell as a buffer between their client's lot and the homeowners’ lots on Buckboard Lane. The only linkage between this dispute and the Turner controversy, according to Gosnell attorneys, was Turner granting Gosnell the right to enter the right of way to conduct a survey of the Gosnell lot.

As a result of other owners on Buckboard Lane claiming ownership by adverse possession of a portion of the Gosnell lot, Blankingship & Keith, attorneys for Gosnell, filed a declaratory judgment in Fairfax County Court naming three homeowners, whose lots face the Gosnell lot, disputing their claim.

In this action, Gosnell attorneys claim that any encroachment by Toothman and the other homeowners, if one exists, involves only the old railroad right of way and does not impact the Gosnell lot. It was the purpose of the survey to establish that fact, Gosnell attorneys assert.

Thus the battle has been joined in Virginia Circuit Court, Fairfax County, in three separate actions: Gosnell vs. Boroughs, Jeens, Walker, heirs of Hunter; Gosnell vs. Group for Declaration Judgment and Ejectment; and Gosnell vs. Toothman.

The street immediately perpendicular to Buckboard Lane and just off Elkin Street, the access thoroughfare for Turner's lot, is named Pilgrim Court, and the street intersecting with Fort Hunt Road just beyond the Gosnell lot is Plymouth Road. How appropriate for Thanksgiving.