§ 41.1-1. Librarian of Virginia in charge of Land Office.
The Librarian of Virginia shall be in charge of and keep and preserve all records of the Land Office.
History. Code 1950, § 41-1 ; 1952, c. 185; 1970, c. 291; 1998, c. 427.
At its regular session of 1968, the General Assembly directed the Code Commission to revise certain titles, including Title 41, relating to the Land Office. In October of 1969, the Commission sent to the Governor and General Assembly its report containing the proposed revision of Title 41, which was published as House Document 9 of the 1970 session. The Commission’s draft of the revision of Title 41, became chapter 291 of the Acts of 1970. It repeals Title 41 and enacts in lieu thereof a new Title 41.1.
Some of the cases cited in the notes under the various sections of this title were decided under corresponding provisions of former law.
Acts 1970, c. 291, cls. 4 and 5 provide as follows:
“4. Whenever in Title 41.1 any of the conditions, requirements, provisions or contents of any section, article or chapter of Title 41, as such title existed prior to October 1, 1970, are transferred in the same or in modified form to a new section, article or chapter, and whenever any such former section, article or chapter is given a new number in Title 41.1, all references to any such former section, article or chapter of Title 41 appearing elsewhere in this Code than in this title shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions or contents or portions thereof.
“5. It is the intention of the General Assembly that this act shall be liberally construed to effect the purposes set out herein, and if any clause, sentence, paragraph or section of this act shall ever be declared unconstitutional, it shall be deemed severable, and the remainder of this act shall continue in full force and effect.”
The 1998 amendment deleted “State” preceding “Librarian” and inserted “of Virginia.”
For related discussion, see 15 M.J. Public Lands, §§ 3, 10, 11.
§ 41.1-2. Act changing name of Denny Martin taken as true; records, etc., of Northern Neck and other lands.
In all suits, either at law or in equity, in which title to any land is derived or sought to be derived from Lord Fairfax, through Denny Martin Fairfax, it shall not be necessary in order to make out a chain of title, to prove the act of Parliament authorizing Denny Martin, the devisee of Lord Fairfax, to take the name of Fairfax, but the same shall be presumed and taken to be true to the same extent as if a properly authenticated copy of such act had been adduced in evidence.
The records, documents, and entries of land granted by the former lord proprietor of the Northern Neck, and of all land granted, or to be granted, by the Commonwealth, shall be in the keeping of the Librarian of Virginia in the Land Office in the City of Richmond.
History. Code 1950, § 41-2; 1970, c. 291; 1998, c. 427.
The 1998 amendment, in the second paragraph, deleted “State” preceding “Librarian” and inserted “of Virginia.”
§ 41.1-3. Grants of certain lands, etc., to be void; such lands, etc., under control of Governor.
No grant shall be valid or effectual in law to pass any estate or interest in (i) any lands unappropriated or belonging to the Commonwealth, which embrace the old magazine at Westham, or any stone quarry now worked by the Commonwealth, or any lands which are within a mile of such magazine, or any such quarry; (ii) any ungranted beds of bays, rivers, creeks and the shores of the sea under § 28.2-1200 ; (iii) any natural oyster bed, rock, or shoal, whether such bed, rock, or shoal shall ebb bare or not; (iv) any islands created in the navigable waters of the Commonwealth through the instrumentality of dredging or filling operations; (v) any islands which rise from any lands which are property of the Commonwealth under § 28.2-1201 ; or (vi) any ungranted shores of the sea, marsh or meadowlands as defined in § 28.2-1500 . Every such grant for any such lands, islands, bed, rock, or shoal shall be absolutely void; however, this section shall not be construed to affect the title to grants issued prior to March 15, 1932. Such magazine and every such stone quarry and the lands of the Commonwealth adjacent to or in their neighborhood, shall be under the control of the Governor, who may make such regulations concerning the same as he may deem best for the interests of the Commonwealth.
History. Code 1950, § 41-8; 1970, c. 291; 1991, c. 378; 1995, c. 850.
For article, “Public Access to Virginia’s Tidelands: A Framework for Analysis of Implied Dedications and Public Prescriptive Rights,” see 24 Wm. & Mary L. Rev. 669 (1983).
For related discussion, see 15 M.J. Public Lands, §§ 4, 10.
Common-law and statutory antecedents discussed. —
See Bradford v. Nature Conservancy, 224 Va. 181 , 294 S.E.2d 866, 1982 Va. LEXIS 281 (1982).
Applicant must comply with all requirements before title vests in him. —
It appeared that appellees’ predecessor in title duly made entry on the land in 1887, pursuant to a land office treasury warrant. The county surveyor made the necessary legal survey and the affidavit required by former § 41-8. Before the applicant made the affidavit required of him by former § 41-8 and filed his proof with the application with the Register of the Land Office (now State Librarian), the General Assembly withdrew the land from patent. It was held that appellants must prevail as the patent granted to appellees’ predecessor in title was void. Powell v. Field, 155 Va. 612 , 155 S.E. 819 , 1930 Va. LEXIS 184 (1930).
But once vested, State can reclaim only by eminent domain. —
Where valid grants are once made by the State the property granted can only be resumed by it when needed for the public use, under the right of eminent domain, upon making compensation. Miller v. Commonwealth, 159 Va. 924 , 166 S.E. 557 , 1932 Va. LEXIS 231 (1932).
Grants prior to 1932 not ratified. —
Under this statutory scheme grants issued in accordance with this section are ratified, but expressly excluded from the operation of this section are grants issued prior to 1932. The retroactivity provisions of § 41.1-6 , therefore, do not apply to a grant of 1901. Nature Conservancy v. Machipongo Club, Inc., 419 F. Supp. 390, 1976 U.S. Dist. LEXIS 14138 (E.D. Va. 1976), aff'd in part and rev'd in part, 571 F.2d 1294, 1978 U.S. App. LEXIS 12336 (4th Cir. 1978); 579 F.2d 873 (4th Cir.).
§ 41.1-4. Repealed by Acts 1995, c. 850.
§ 41.1-4.1. Repealed by Acts 1992, c. 836.
§ 41.1-5. Circuit courts authorized to dispose of waste and unappropriated lands.
The circuit courts of the counties and cities in which waste and unappropriated lands are alleged to lie are vested with authority to sell and dispose thereof in proceedings brought under §§ 41.1-16 through 41.1-20 ; however, no sale or disposition shall be made of lands mentioned in § 28.2-1200 or of lands as to which a grant could not have been issued by the Librarian of Virginia under § 41.1-3 .
History. Code 1950, § 41-8.2; 1952, c. 185; 1970, c. 291; 1991, c. 378; 1995, c. 850; 1998, c. 427.
The 1998 amendment deleted “State” preceding “Librarian” and inserted “of Virginia.”
For related discussion, see 20 M.J. Waters and Watercourses, § 26.
§ 41.1-6. Ratification of grants issued pursuant to § 41.1-3.
Any grants for land heretofore issued by the Librarian of Virginia pursuant to § 41.1-3 are hereby ratified and confirmed and title is confirmed in the grantees thereof.
History. Code 1950, § 41-8.3; 1966, c. 427; 1970, c. 291; 1998, c. 427.
The 1998 amendment deleted “State” preceding “Librarian,” inserted “of Virginia” and deleted “(§ 41-8 of the Code of 1950)” following “§ 41.1-3 .”
For related discussion, see 15 M.J. Public Lands, § 12.
Applicability to grants from 1948 to 1954. —
By its terms, this section only applies to grants issued by the State Librarian, who only held the power to issue grants between 1948 and 1954. This section, enacted in 1966, applies only to grants made during that time. Bradford v. Nature Conservancy, 224 Va. 181 , 294 S.E.2d 866, 1982 Va. LEXIS 281 (1982).
CIRCUIT COURT OPINIONS
Applicability to lands with creeks. —
Two grants to an owner’s predecessors in title were invalid since even if one of the grants was issued under former § 41-8, the grant was not ratified by § 41-8.3, now § 41.1-6 , since the land contained a creek, and was protected under former § 62-1 ; it did not matter that the creek was later diverted. Commonwealth Transp. Comm'r of Va. v. Ourisman Dodge, Inc., 73 Va. Cir. 485, 2007 Va. Cir. LEXIS 111 (Fairfax County Aug. 2, 2007).
§ 41.1-7. Copies of unsigned grants admissible in evidence; Commonwealth’s right relinquished when certain taxes paid; correction of record.
Where the records in the Land Office disclose the fact that the land warrants used as the foundation for a grant of any of the public lands of the Commonwealth, subject to grant, were fully paid for and that the right to such grant was finally and fully completed in the manner prescribed by law and a grant therefor made out and spread upon the record book in the Land Office, in due form of law and regular in every respect only that the name of the then Governor of Virginia was not recorded at the foot thereof on the record book, it shall be the duty of the Librarian of Virginia, upon the request of any person interested, to furnish a copy of such grant as it appears of record in the Land Office, together with a certificate to the effect that the land warrants upon which such grant was founded, were fully paid for; that the right to such grant had been finally and fully completed in the manner prescribed by law, and that the grant was regular in every respect except only that the signature of the Governor did not appear at the foot thereof on the record. Such copy and certificate shall be received in evidence in any legal proceeding in which the title to the land described in such grant, or any part thereof, is brought in controversy, and shall be prima facie evidence of title to such land; and when the land embraced in such grant, or any part thereof, shall have been regularly on the proper land books and the taxes and levies regularly assessed thereon and paid by the claimants thereof, claiming under such grant, for a continuous period of ten years, any title which may rest in the Commonwealth, to so much of the land as has been so on the land books and upon which the taxes and levies shall have been so paid, shall be relinquished to the person so claiming the same, and any such claimant of such land, on which the taxes and levies shall have been so paid, may file a petition in the circuit court of the county or city in which such land lies, after ten days’ notice in writing to the attorney for the Commonwealth for such county or city who shall appear and defend the same on behalf of the Commonwealth and the county or city; and upon satisfactory proof of the fact that such land has so been on the land books of the county or city and all the taxes and levies regularly paid thereon for the period of time hereinbefore specified, and the production before the court of the copy of such grant and the certificate of the Librarian of Virginia, hereinbefore provided for, the court shall make an order which shall recite and set forth all of such facts so proved and shown, which order, when so made and entered of record on the proper order book of the court, shall operate to effectually relinquish to the person so claiming such land through and under such grant, whatever right and title may rest in the Commonwealth, thereto; and a copy of such order shall be conclusive evidence of the better right of the claimant under such grant, in any caveat proceeding, or in any other controversy between such claimant and any other person claiming under a location of such land or any part thereof, made after the date of such order.
But nothing contained in this section shall in any manner affect any right adverse to any person claiming under such grant, which vested prior to June 22, 1926, nor divest the right or title, if any, of any junior grantee of any part of the land embraced within the exterior bounds of such grant, claiming under a junior grant which was regularly issued prior to June 22, 1926, or anyone holding or claiming through or under such junior grantee, but in any controversy between such adverse claimants or junior grantees, or persons claiming or holding through or under them, and any person holding or claiming through or under such grant as is first herein mentioned, the contesting parties shall be left to the strength of their respective rights and titles according to the nature of the case, independent of this section, and just as if it had not been enacted.
If it shall appear from the original of any such grant as is first hereinbefore referred to, that such original was actually signed by the Governor, the Librarian of Virginia shall, upon the presentation to him in the Land Office, of such original grant so signed, correct the record thereof so as to conform to such original grant, and affix thereto the date of such correction and a certificate of the fact that such original, duly signed by the Governor, had been presented to him.
History. Code 1950, § 41-9; 1970, c. 291; 1998, c. 427.
The 1998 amendment deleted “State” preceding “Librarian” and inserted “of Virginia” throughout this section.
§ 41.1-8. When grant invalid; when Commonwealth’s right relinquished to land settled on.
No grant of any land which shall have been settled continuously for five years previously, upon which taxes shall have been paid at any time within such five years by the person having settled the same, or any person claiming under him, shall be valid; and any title which the Commonwealth may have to such land shall be relinquished to the person in possession of the land claiming the same under such settlement and payment to the extent of the boundary line enclosing the same. But such boundary line shall not include more than 1,500 acres; and any person who has made such settlement and paid such taxes, or anyone claiming under him, may have the land surveyed, and prove the settlement and payment before the circuit court of the county where the land, or a greater part thereof, lies, whereupon such court shall order the plat and certificate of survey to be recorded. Such record shall be conclusive evidence in any controversy between the claimant thereunder and any person claiming under a location of the land made after the date of such order. This section shall relate as well to land forfeited for nonpayment of taxes, or for the failure to have the same entered on the commissioner’s books, or both those causes, and to land escheated or escheatable, as to waste and unappropriated lands.
History. Code 1950, § 41-39; 1970, c. 291.
For related discussion, see 1A M.J. Adverse Possession, § 49.
This statute is an exception to the doctrine that no time runs against the crown. Levasser v. Washburn, 52 Va. (11 Gratt.) 572 (1854) (see to the same effect).Tichanal v. Roe, 41 Va. (2 Rob.) 288, 1843 Va. LEXIS 35 (1843); Seekright v. Lawson, 35 Va. (8 Leigh) 458, 1836 Va. LEXIS 76 (1836); Shanks v. Lancaster, 46 Va. (5 Gratt.) 110, 1848 Va. LEXIS 29 (1848).
Land settled continuously for more than five years. —
In a suit to have set aside — so far as it had effect upon the title to the coal estate — a grant under the provisions of § 2504 of the Code of 1942 regulating the purchase of waste and unappropriated lands, the evidence showed that the land so granted was settled continuously for more than five years prior to the date of the grant. Hence, under the terms of this section, the land was not waste or unappropriated and the grant was void as to the surface estate; and this result inured to the benefit of the owner of the coal estate, for the owner of the surface is presumed to hold possession for the benefit of the owner of the minerals. Clevinger v. Bull Creek Coal Co., 199 Va. 216 , 98 S.E.2d 670, 1957 Va. LEXIS 181 (1957).
Privity of estate in computing period. —
Where the tenant has entered upon and improved the land and paid the taxes thereon, it is competent for him to connect his possession with the possession of those under whom he claims, the same never having been interrupted, in computing the statutory period. Tichanal v. Roe, 41 Va. (2 Rob.) 288, 1843 Va. LEXIS 35 (1843).
A court order in pursuance of this section is only intended to affect those who have become locators since the date of the order, and not those who have previously acquired rights. Hurley v. Charles, 110 Va. 27 , 65 S.E. 468 , 1909 Va. LEXIS 112 (1909).
Evidence of court right when records burned. —
In an action for cutting and removing timber, it was held that where plaintiff’s predecessor in title secured a court right to the land under this section, but the evidence of the title was destroyed by burning of clerk’s office, the plaintiff was not required to show upon what evidence the court right was granted, the presumption being that it was granted on proper proof. Honaker Lumber Co. v. Kiser, 134 Va. 50 , 113 S.E. 718 , 1922 Va. LEXIS 144 (1922).
Plaintiff suing for trespass and relying on a court right for land, under this section, could prove what his grantor’s lawyer did and the fees paid him with reference to obtaining the court right, to sustain his contention that it was granted. Honaker Lumber Co. v. Kiser, 134 Va. 50 , 113 S.E. 718 , 1922 Va. LEXIS 144 (1922).
§ 41.1-9. Lost records and papers in chains of title; bill in equity to establish ownership.
If any record or paper constituting a link in the chain of title to any tract or parcel of land in this Commonwealth, has been or shall be lost or destroyed, and no authenticated copy thereof can be found, it shall be lawful for the person or persons, claiming the ownership of such tract or parcel of land, to file in the circuit court of the county, or circuit court of the city, in which such land, or the greater part thereof, is situated, a bill in equity, setting forth the circumstances of such loss or destruction, and giving a history of the title and possession of such tract or parcel of land, and a full description thereof, with the names of the persons in possession of the conterminous parcels. All persons appearing to have an interest in such lands, or to be in possession thereof, or of any adjoining parcel, shall be either plaintiffs or defendants, and the proceedings to mature the cause shall be the same as in other suits in equity, except that in every case there shall be an order of publication, setting forth briefly the purpose of the proceeding and notifying all persons interested to appear and look after their interests.
History. Code 1950, § 41-68; 1970, c. 291.
For related discussion, see 12A M.J. Lost Instruments and Records, § 9.
Bona fide adverse settlers are necessary parties to a suit under this section. Buchanan Co. v. Heirs of Smyth, 115 Va. 704 , 80 S.E. 794 , 1914 Va. LEXIS 123 (1914).
Courts of equity, in exercising their jurisdiction to set up a lost instrument which is to constitute a muniment of title, require strong and conclusive proof of its former existence, its loss, and its contents. Barley v. Byrd, 95 Va. 316 , 28 S.E. 329 , 1897 Va. LEXIS 40 (1897).
In a suit to set up a lost deed made a century ago, the court held that a memorandum in the handwriting of the grantee’s attorney is not in itself evidence of the execution of the deed. Barley v. Byrd, 95 Va. 316 , 28 S.E. 329 , 1897 Va. LEXIS 40 (1897).
§ 41.1-10. Same; order of court for survey.
When the suit is ready for hearing, the court may make an order of survey, to be executed by such person as the court may appoint, requiring a complete survey and plat of the land in question to be made and returned, showing its connection with conterminous tracts, and any other circumstances necessary for its thorough identification.
History. Code 1950, § 41-69; 1970, c. 291.
§ 41.1-11. Same; when and how testimony taken.
Upon the return of such survey and plat, testimony may be taken as in other suits in equity, but no notice of the taking of such testimony need be given to any defendant who has not appeared and answered the bill.
History. Code 1950, § 41-70; 1970, c. 291.
§ 41.1-12. Same; ownership certified by court; order as to costs.
If, upon such survey and plat, and upon the other facts in the cause, the court shall be clearly satisfied of the ownership of the tract or parcel of land shown by such survey and plat, and that there is no controversy about such ownership, it shall certify the same of record, and shall make such order concerning the costs as may seem proper.
History. Code 1950, § 41-71; 1970, c. 291.
§ 41.1-13. Bill in equity for repeal of grant.
The Commonwealth, or any other party desiring to repeal, in whole or in part, any grant of land because it was obtained by fraud, or issued contrary to law, or to the prejudice of such party’s equitable right, may file a bill in equity for that purpose in the circuit court of the county, or the circuit court of the city, in which the land, or some part thereof, lies, exhibiting with the bill a certified copy of the patent, and making all proper parties.
History. Code 1950, § 41-75; 1970, c. 291.
For related discussion, see 15 M.J. Public Lands, §§ 15, 19.
Complainant must show that he is prejudiced by grant. —
This section does not confer the right upon a private citizen to maintain a suit in equity or otherwise, to set aside a grant from the State to a third person, unless he can show that he has a right therein which has been prejudiced by the grant. Meredith v. Triple Island Gunning Club, Inc., 113 Va. 80 , 73 S.E. 721 , 1912 Va. LEXIS 11 (1912).
But may sue though he has only part of legal title. —
A party claiming title to land, to which he has the legal title to one-third and an equitable title to the other two-thirds, may go into equity to restrain waste upon the land and to set aside a conveyance from the board of public works of Virginia to a purchaser of the land, the same having been previously legally granted by a valid grant. Garrison v. Hall, 75 Va. 150 , 1881 Va. LEXIS 2 (1881).
While public officers are presumed to act lawfully, this presumption is rebuttable. Were it not, no grant from the Commonwealth could be voided once it was made, since the fact of issuance would be proof of validity. This, however, is not the case, since this section sets forth a means for challenging the validity of grants. Bradford v. Nature Conservancy, 224 Va. 181 , 294 S.E.2d 866, 1982 Va. LEXIS 281 (1982).
§ 41.1-14. Nature of proceedings for repeal of grant.
The proceedings thereupon shall be as in other suits in equity, and on the final hearing the court shall make such decree as law and equity may require.
History. Code 1950, § 41-76; 1970, c. 291.
§ 41.1-15. Recording decree of repeal.
Any decree for such repeal, in whole or in part, shall be certified to the Librarian of Virginia, and shall thereupon be recorded by the Librarian of Virginia in the manner prescribed in § 55.1-2423 .
History. Code 1950, § 41-77; 1970, c. 291; 1982, c. 565; 1998, c. 427.
To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “55.1-2423” for “55-186.2.”
The 1998 amendment deleted “State” preceding “Librarian” and inserted “of Virginia” in two places.
§ 41.1-16. Sale of wastelands; proceeding by citizen resident; motion and deposit for costs; parties; copy of plat.
Any citizen, resident of this Commonwealth, who has reason to believe that there are waste and unappropriated lands in this Commonwealth (not being excluded under § 41.1-3 from grant), shall have the right to file a proceeding in the name of the county or city seeking the sale and disposition of such land. The venue for such a proceeding shall be as specified in subdivision 3 of § 8.01-261 . The proceeding shall be instituted by motion signed by the party who institutes the proceeding, or on his behalf, and shall be accompanied with a deposit to cover the costs of the proceeding but in no event to exceed $100. Each landowner adjoining the tract in question shall be made a party to the proceedings.
He shall file with the motion a copy of a plat prepared by a licensed land surveyor giving the metes and bounds of the land alleged to be waste and unappropriated. A copy of the motion and plat shall be served upon each of the landowners adjoining the tract in question.
History. Code 1950, § 41-84; 1952, c. 185; 1970, c. 291; 1977, c. 624; 1995, c. 850.
For article discussing common-law principles underlying public interests in tidal water resources, see 23 Wm. & Mary L. Rev. 835 (1982).
For related discussion, see 12A M.J. Limitation of Actions, § 11.
Section 8.01-238 may not be used to defeat landowner’s effort to show that grant under former § 41-84 (now this section) is void and to have a court of equity confirm his title. Johnson v. Buzzard Island Shooting Club, Inc., 232 Va. 32 , 348 S.E.2d 220, 3 Va. Law Rep. 476, 1986 Va. LEXIS 223 (1986).
All lands that have never been patented are to be considered waste and unappropriated, susceptible to location and to being sold under the statute. Black v. Eagle, 248 Va. 48 , 445 S.E.2d 662, 10 Va. Law Rep. 1454, 1994 Va. LEXIS 90 (1994).
The mere fact of public use and a claim of possessory rights does not provide anyone, including the Virginia Outdoors Federation (VOR), with a valid claim of ownership of land of this type in disregard of the law relating to waste and unappropriated land. Black v. Eagle, 248 Va. 48 , 445 S.E.2d 662, 10 Va. Law Rep. 1454, 1994 Va. LEXIS 90 (1994).
§ 41.1-17. Same; time and place of hearing.
Upon the docketing of the motion, the court shall set a time and place to hear the merits of the proceeding. Such hearing shall be held not less than thirty nor more than sixty days from the date upon which the same was filed.
History. Code 1950, § 41-85; 1952, c. 185; 1970, c. 291.
For related discussion, see 15 M.J. Public Lands, §§ 10, 11.
§ 41.1-18. Same; subsequent proceedings; disposition of proceeds of sale.
Thereafter the proceedings shall conform, mutatis mutandis, to the provisions of Article 4 (§ 58.1-3965 et seq.) of Chapter 39 of Title 58.1 but on the motion of any party the sale of such land shall be public. From the proceeds of sale, after the expenses of suit and other costs incident to the sale, the person instituting the proceeding shall be reimbursed his deposit and costs expended up to the time the proceeding is docketed; but if such proceeds be insufficient to pay the expenses of suit and other costs incidental to the sale, the deficiency shall be paid by the person, county or city instituting the suit. The remainder left from the proceeds of sale after the payment of costs, expenses of suit and other expenses of sale shall be paid into the treasury of the county or city, as the case may be.
History. Code 1950, § 41-87; 1952, c. 185; 1970, c. 291.
§ 41.1-19. Same; proceedings by governing body of county or city.
The governing body of the county or city in which any waste or unappropriated land lies may, without deposit of costs, initiate proceedings under this chapter to have such lands sold under the provisions hereof.
History. Code 1950, § 41-88; 1952, c. 185; 1970, c. 291.
§ 41.1-20. Same; sale extinguishes title and interest of Commonwealth.
All right, title and interest of the Commonwealth, except as shown by an instrument recorded in the clerk’s office of the court of the city or county in which deeds are admitted to record in which land is sold under the provisions hereof shall be extinguished by such sale.
History. Code 1950, § 41-89; 1952, c. 185; 1970, c. 291.
For related discussion, see 15 M.J. Public Lands, § 10.