ol - washington and lee university

'l'ABLB Ol COI'!BHS JOLQJIB I

Answer and Grounds of Defense of Wexford Associates, Inc., and Individual Defendants filed

APPIRDIX PAGB

October 22, 1990 • • • • • • • • • • • • • • • • • • • • • • 1

Proffer of Defendant Fairfax County Park Authority filed January 7, 1993 • • • • • • • • • • • • • • • • • • • • • • • 8

Excerpt of Trial Proceedings Heard before the Honorable Thomas A. Fortkort on February 27, 1992 ••••• 10

Statement of Honorable Thomas A. Fortkort • • • • • • • • • 19

Testimony of Herman L. Courson • • • • • • • • • • • • • • • 20

Testimony of Mark s. Albanese • • • • • • • • • • • • • • • 43

Testimony of James E. Henry. Jr. . . . . . . . . . . . • • • 49

Excerpt of Trial Proceedings Heard before the Honorable Thomas A. Fortkort on January 7, 1993· ••••••••• 53

Testimony of Jack B. Conner • • 56

Statement of Counsel for Park Authority • • . . . . . . • • 70

Testimony of Timothy p. Scott • • . . . . . . . . . . . 72

Testimony of Thomas Reed . . . . . Statements of Counsel for Park Authority

Exhibits:

. . . . . .

Defendant Exhibit Wilkenfeld No. 1 . . . . . . . . . . . . Defendant Exhibit Wexford No. 33

86

87

90

91

TABLB or CO!ft'BBTS . YOLUJIB II

Exhibits: APPENDIX PAGE

Defendant Exhibits Park Authority Nos. lA and 2 through 24 • . • • • . . . . . . . . . . . *

Defendant Exhibit Wilkenfeld No. 3 . . . . . • . . *

Defendant Exhibit Wexford No. 31 • • • • • . • • . . . . . 94

Plaintiff Exhibit No. 1 . . • . . . . • . . . . . . . *

Plaintiff Exhibit No. 2 . . . . . . . . . . . . . . . *

Plaintiff Exhibit No. 3 . . . . . • . . . . . . . . . *

Plaintiff Exhibit No. 4 . . . . . . . . . . . . . *

Plaintiff Exhibit No. 6 . . . . . . . . . . . . . *

Defendant Exhibit Wexford No. 33 . . . . • . . . . . • *

*Exhibits designated but not available for reproduction.

VIRGINIA:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

GEORGE ATKISSON and CARLOTTA T. ATKISSON,

Plaintiffs

v.

WEXFORD ASSOCIATES, INC. and FAIRFAX COUNTY PARK AUTHORITY,

et al.,

Defendants

) ) ) ) ) ) ) ) ) ) ) ) ) )

CHANCERY NO. 97823

ANSWER AND GROUNDS OF DEFENSE

COMES NOW Wexford Associates, et al.*, by counsel, and for

its Answer and Grounds of Defense states in paragraphs numbered

to correspond to the paragraphs in the Amended Bill of Complaint

as follows:

1-2. Denied.

3-32. Admitted.

33. Denied. In further answering, Exhibit B is admitted and

it speaks for itself.

34. Denied. In further answering, the land records of

Fairfax County, and particulary Deed Book Liber H, No. 5, Page

37, speak for themselves.

35-36. Denied.

37. Denied. The deed attached as Exhibit c appears to be a

genuine copy of a deed recorded in the land records and speaks

for itself.

38. Denied. The deed attached as Exhibit D appears to be a

renuine copy of a deed recorded in the land records and speaks

:for itself.

39-40. Denied.

41. Denied. In further answering, it is admitted that

jathleen Smith, as sole owner and not "heir," conveyed a parcel

~o Charles Hawthorne.

I 42. Admitted. I

43. Denied. Charles R. Hawthorne acquired title to Parcel

rs at Deed Book 4603, Page 343, with a marital status of

'"unmarried. "

44-45. Denied.

46. Denied. In further answering, the copy of the letter

~ttached as Exhibit E is admitted and is its own best evidence of

~ts meaning.

47. Denied. In further answering, the conveyance of

rarcels 48 and 49 by deed recorded in Deed Book 5772 at Page 497 1

'n 1983 is admitted, which deed speaks for itself.

48-53. Denied.

54-57. Denied for lack of information. These allegations

io not affect these Defendants, however are denied out of an

abundance of caution.

58. Denied.

COUNT I

INJUNCTION AND DAMAGES FOR OBSTRUCTION OF EXPRESS EASEMENT

59. The answers in Paragraphs 1 through 58 are incorporated

erein by reference.

2

- ~-- -.2

60-61. Denied.

62. Denied for lack of information. These Defendants have

no knowledge of this allegation, and it is denied out of an


63. WHEREFORE, these Defendants pray that all claimed

relief be denied and that they be reimbursed their attorneys fees

and costs in this matter.

COUNT II

INJUNCTION AND DAMAGES FOR OBSTRUCTION

OF IMPLIED EASEMENT BY NECESSITY

64. The answers in Paragraphs 1 through 63 are incorporated -

herein by reference.

65-67. Denied.


no knowledge of this allegation, and it is denied out of an




and costs in this matter.

COUNT III

INJUNCTION AND DAMAGES FOR OBSTRUCTION

OF PRESCRIPTIVE EASEMENT

70. The answers in Paragraphs 1 through 69 are incorporated

herein by reference.

71-73. Denied.

3 -•w--3


no knowledge of this allegation, and it is denied out of an I

r:bundance of caution.



rnd costs in this matter.

COUNT IV

INVERSE CONDEMNATION

76-Sl. These allegations concern another Defendant and

equire no answer from these Defendants, however out of an

I bundance of caution are denied.

GROUNDS OF DEFENSE

1. All allegations not expressly admitted are denied.

2. Plaintiffs have sued numerous homeowners in the

ubdivision known as Wendover III; however, the pleading contains

o allegations that any of Defendants' properties specifically

ies within the path of the purported easement. Therefore,

laintiffs assert that the easement is a "wild easement" over the

of the combined properties and is unenforceable.

3. Plaintiffs have mis-joined parties from different chains

· f title in the same proceeding without alleging a necessary

redicate, namely a cognizable title basis for such joinder.

4.

jasement

variance

Jounty

Plaintiffs 1 allegations with respect to the purported

and the property which it was intended to serve are at

with the land records of the Circuit Court of Fairfax

and the documents attached to Plaintiffs' pleading.

Plaintiffs attempt to separate an appurtenant easement from the

estate which it was intended to serve.

5. Plaintiffs' allegations in support of their claim of an

implied easement by necessity are not supported by the land

records of the Circuit Court of Fairfax County for the reason

that adequate and alternate access is available to the cemetery.

6. Plaintiffs' Exhibits C and D, purporting to be grants to

Plaintiffs, can rise no higher than the rights of the supposed

Grantor. The land records of this Court show that no such right

exists in the purported Grantor; namely, the alleged right-of-way

was not and is not in a discernible chain of title to the alleged

Grantor for the purposes asserted by Plaintiffs.

7. Plaintiffs' allegations of a purported right arising out

of Rezoning Application RZ 79-C-095 are insufficient on their

face to confer any rights in the land.

8. Plaintiffs fail to allege facts sufficient to invoke an

injunctive remedy. In fact, the pleading on its face alleges an

adequate remedy at law.

9. Plaintiffs' allegations of compensatory damages are

conclusory and otherwise not legally cognizable.

10. Plaintiffs' allegations of punitive damages are

conclusory and not in accord with the requirements of·case law.

11. Plaintiffs fail to allege facts sufficient to entitle

them to attorneys fees.

12. The pleading purports to aggregate several claims on

several legal theories against several parties, some of which are

asserted against some parties and not others. The claims do not

arise out of the same transaction or occurrence.

5 -- ........ -5

13. Plaintiffs' claims are barred by laches and unclean

14. Plaintiffs' claims are unfounded in the land records on

ile with this Court.

15. Plaintiffs fail to join indispensible parties.

16. Plaintiffs fail to allege a cause of action against

lhese Defendants.

WHEREFORE, the premises considered, the Defendants move the i • ourt to dismiss this action with prejudice and award their costs

nd attorneys fees incurred herein or for such other and further

elief as the Court may deem appropriate.

~ernard E. Goodman Goodman and Associates l919 Gallows Road, Suite 930

lienna, Virginia 22182 703) 848-2828 ounsel for Defendants

WEXFORD ASSOCIATES, INC, et al.* By Counsel

Wexford Associates, Inc., et al.*

~ Wexford Associates, Inc. , et al. includes James E. Henry,

~Susan H. Henry, Herbert Vogel, Barbara Vogel, Michael A. Daniels, onnie L. Daniels, John Whitacre, Genevieve Whitacre, Donald D. all, Joan P. Hall, John Kowalczyk, Katherine Kowalczyk, Patrick

~. Deasy, Jane M. Deasy, Charles E. Andrews, Jean s. Andrews, rian T. McVay, Elizabeth J. McVay, M. Jack Wilkenfeld, Joanne

: ilkenfeld, Patrick M. Byrne, Karen A. Byrne, Jack A. Winters, ernadette Winters, Walter T. Morgan, Beth A. Morgan, Michael A. ·erry, Jean D. Perry, Thomas G. Morr, Karen T. Morr, Dale A. oss, Kathleen s. Moss, John F. Karaszewski, Lynn s. Karaszewski, eith F. Higginbotham, Wendy J. Higginbotham, Justin A. Holmes,

Claudia J. Holmes, James A. Evans, Jacquelyn F. Evans, Thomas A. hoemaker, Joan c. Shoemaker, James s. Hooker, Maureen A. Hooker,

6-- ... ---s

Larry D. Cordell, Gale M. Cordell, Donald c. Minoque, Susan A. Minoque, Lawrence w. Wyte, Diane B. Wy~e, Raymond c. Cavanaugh, Eileen B. Cavanaugh, Michael R. Waller, and Diane u. Waller.

Certificate of Service

I hereby certify that a true copy of the foregoing was mailed first class, postage prepaid, this eighteenth day of october, 1990, to the following counsel of record:

Sally A. Hostetler Counsel for Defendants Hawthorne Odin, Feldman & Pittleman, P.C. 9302 Old Lee Highway, Suite 1100 Fairfax, Virginia 22031

Ruth Jamison, Esquire Counsel for Fairfax County Park Authority

County Attorney's Office 4100 Chain Bridge Road Fairfax, Virginia 22030

Quentin R. Corrie Counsel for George Atkisson

& Carlotta T. Atkisson Anderson & Quinn 12450 Fair Lakes circle, suite 370 Fairfax, Virginia 22033

~~~ erna:icfli. Goodman

wex.ford. ans

V I R G I N I A :

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

GEORGE ATKISSON, and CARLOTTA T. ATKISSON,

Plaintiffs,

v.

WEXFORD ASSOCIATES, INC. and FAIRFAX COUNTY PARK AUTHORITY, et al.,

Defendant.

PROFFER

CHANCERY NO. 97823

COMES NOW Defendant Fairfax County Park Authority,

hereinafter "FCPA," by and through counsel, on this 7th day of

January, 1993, and proffers the following to this Honorable

Court:

Defendant FCPA is willing to provide two means of

access to Plaintiffs George Atkisson and Carlotta T. Atkisson,

and other Atkisson family members, to what is known in the

instant case as the "Atkisson Family Cemetary," 24-hours per

day on a continuing basis.

Such access would be by way of Millington Court or

Spring Branch Drive over FCPA property (the specific route to

be further described in testimony this date), and an access

trail would be cleared over said access route.

Defendant FCPA is further willing to initially clear,

and continually maintain, the area encompassing the Atkisson

Family Cemetary; said maintenance to include erecting a fence

around the boundaries of the cemetary.

-----s

DAVID P. BOBZIEN COUNTY ATTORNEY

By CM. L~.£ti, Ruth E. S lier Virginia State Bar *22267 Assistant County Attorney

- 2 -

FAIRFAX COUNTY PARK AUTHORITY

12000 Government Center Parkway Suite 549

·Fairfax, Virginia 22035 (703) 324-2421 Counsel for Defendant

.--""'"- - 9

.·• ..

1 V I R G I N I A:

2 IN THE CIRCUIT COURT OF FAIRFAX COUNTY

J ----------------------------------x 4 GEORGE ATKISSON,

s Plaintiff,

. . :

1

6 versus, . . IN CHANCERY NO. 97823

7

8

9

10

II

12

WEXFORD ASSOCIATES, INC., et al.

Defendants.

. .

. . ----------------------------------x

Fairfax, Virginia

Thursday, February 27, 1992

The above-entitled action came on to be

13 heard before the Honorable Thomas A. Fortkort, a Judge in

14 and for the Circuit Court of Fairfax County, in Courtroom

IS SB, 4110 Chain Bridge Road, Fairfax County Judicial Center,

16 Fairfax, Virginia 22030, beginning at approximately

11 10:20 a.m.

18

19 - - - - - - - - - - - - - - -20

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23 LC-23-92

Anita B. Glover 8 Associates, Ltd. {703) 591·3004

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APPEARANCES:

For the Complainant:

SCOTT E. SNYDER, ESQUIRE 12450 Fair Lakes Circle, Suite 370 Fairfax, Virginia 22033

For the Defendants, Wexford Associates and the individual defendants:

BERNARD E. GOODMAN 1 ESQUIRE DANIEL J. 0 I CONNELL I ESQUIRE Goodman and Associates 1919 Gallows Road, Suite 930 Vienna, Virginia 22182

2

For the Defendant, Fairfax County Park Authority:

RUTH JAMIESON SOULIER, ESQUIRE Assistant County Attorney 4100 Chain Bridge Road Fairfax, Virginia 22030

Anita B. Glover fl Associates, Ltd. (703) 59X•3004

3

C 0 B T B B T 8:

2 Wl:THISS DZRBC'! CROSS

3 ROBERT SIMPSON 10 15

4 TIMOTHY SCOTT 34

s HERMAN L. COURSON 49 63

6 MARK S. ALBANESE 72

7 JAMES E. HENRY, JR. 78 82

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----12

Aalta B. Glover f:l Associates, Ltd. ('703) S9X•3004

C 0 K P L A I B A B T 1 8

2 BXBIBI'l'

3 Complainant's Exhibit No. ZZZ Plat of Wendover Subdivision

4 prepared by Robert Simpson

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BZHIBITS

IDENTIFIED/RECEIVED

11 22

Aalta B. Glover 8 Associates, Ltd. (703) 59%·3004

PARK AUTHORITY

2 BXHIBIT

3 Park Authority Exhibit No. 1-A Photograph of end of lot 38 lookinq

4 southwest

s Park Authority Exhibit No. 2 Photograph, the same as Exhibit

6 No. 1-A, but further down the bank from the house

7

Pa~k Authority Exhibit No. 3 8 -- Photograph lookinq towards lot 38

9 Park Authority Exhibit No. 4 Photograph of the front end

JO elevation of the house on lot 38

II Park Authority Exhibit No. 5 Photoqraph of the corner of the

12 storm detention pond lookinq toward lot 38

13

Park Authority Exhibit No. 6 14 Photograph lookinq up slope toward

lot 23 hear the storm detention pond IS

Park Authority Exhibit No. 7 16 Photoqraph of the natural surface

trail to the southeast of lot 23 17

Park Authority Exhibit No. 8 18 Photograph of a closer view from the

natural surface trail of lot 23 19

Park Authority Exhibit No. 9 w Photograph lookinq downhill from

5

B X B I B I '1' S

IDENTIPIBD/RECEIVED

38 49

38 49

39 49

39 49

40 49

40 49

41 49

41 49

42 49

lot 23 across the area of the easement 21

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Park Authority Exhibit No. 10 Photograph of the rear elevation of lot 23 from the easement area

----14

42 49

Anita B. Glover U Associates, Ltd. (703) 59I•3004 IOS21 West DriYe

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PAR It AUTHORITY BXHIBl:'l'S C 0 B T I B U B D:

2

B X B I B I '1' 3

Park Authority Exhibit No. 11 4 Photograph of·the front of the house

on lot 23 looking towards where the s easement comes to the corner

6 Park Authority Exhibit No. 12 -- Photograph of the front elevation of

7 the house on lot 23

8 Park Authority Exhibit No. 13

ID

Photograph standing in front of lot 22 9 looking towards lot 25 and lot 2 and th

intersection of Bird Drive and Sprinq 10 Branch Drive

II Park Authority Exhibit No. 14 Photograph the same as described in

12 Park Authority Exhibit No. 13

13 Park Authority Exhibit No. 15 Photograph of the front elevation of

14 lot 25

IS Park Authority Exhibit No. 16 Photograph of the intersection of

16 Bird Road and Sprinq Branch Drive looking toward the southwest

17

Park Authority Exhibit No. 17 18 Photograph of the slope on top of

lot 25 looking across Bird Road 19 towards the front elevation of

lot 2 20

Park Authority Exhibit No. 18 21 Photograph coming along the side

of lot 2 towards the north and away 22 from Bird Road

23

Anita B. Glover 8 Associates, Ltd. sons w..c Drl•e

D

42 49

43 49

43 49

43 49

44 49

44 49

45 49

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(703) s•x·3004 I

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1 PAR It AUTHORITY BZHIBITS C 0 B T I B U B D:

2

EXHIBIT IDENTIPIED/RECB:IVED 3

Park Authority Exhibit No. 19 4 Photograph of the front elevation

of lot three s

46

Park Authority Exhibit No. 20 46 6 Photograph standing on lot 4 looking

toward the south at pool in the back 7 yard of lot three

8 Park Authority Exhibit No. 21 46 Photograph of the front elevation of the

9 house on lot 4


II house on lot 5


IJ house on lot 6


IS house on lot 7

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Anita B. Glover U Associates, Ltd. %0$2S West Drive

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(703) 59I·3004

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I WILKBBPBLD B Z B I B I T 8

2 EXB:tBI'! l:DEHTIPIED/RECEIVBD

3 Wilkenfeld Exhibit No. 3 53 71 -- Plat with notations of Mr. Courson

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Anita B. Glover U Associates, Ltd. (703) 591:•3004 S052l West Dl'l•e

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1 WB%POJlD B%BIBITS

2 BXH:tBIT

3 Wexford Exhibit No. 31 Ownership assessment schedule and

4 certified copies of the tax assessed. values and deeds of trust

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Aaita B. Glover 14 Associates, Ltd. soas w..c Dd••

IDENTiliED/RECBX?ED

74 77

(703) S9X•3004

STATEMENT OF HON. THOMAS A. FORTKORT

31

THE COURT: I know that is your position

2 because I read your brief. That doesn't necessarily mean

J that is the way the Court is going to rule.

4 MR. SNYDER: I understand.

s THE COURT: I will go out and take a look

6 today, Mr. Goodman.

7 MR. GOODMAN: When does the Court want to do

8 that? Do you want to do it now?

9 THE COURT: Right now.

10 (Comments off the record not reported by the

II court reporter. )

12 (Photographs were marked as Fairfax County

13 Park Authority Exhibit Nos. 1-A through 24

14 for identification.)

IS (Whereupon, at approximately 10:51 a.m., the

16 Court, counsel, and the parties went for a viewing of the

17 property. )

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----].9

Anita B. Glover El Associates, L~d. %0$2% West Drive

(703) 591·3004

Fairfax. Vlralnla 22.030

HERMAN L. COURSON - DIRECT

) 49

1 Honor.

l THE COURT: All riqht.

3 (The photoqraphs previously marked as Park

4 Authority Exhibit Nos. 1 through 24 for

s identification were received into evidence.)

6 Does anybody else have any questions?

7 MR. SNYDER: No, sir.

8 THE COURT: You may step down.

9 (Witness excused.)

10 MS. SOULIER: Thank you, Tim.

II The Park Authority has no other

12 witnesses, Your Honor.

13 MR. GOODMAN: We would call Herman Courson

14 next, Your Honor.

IS THE COURT: All riqht.

16 MR. GOODMAN: He is outside.

11 Whereupon,

18 BBRMAH L. COURSON 1

19 a witness, was called for examination by counsel for the

20 defendants, Wexford Associates, Inc., and the individual

21 defendants, and, having been first duly sworn by the Court,

22 was examined and testified as follows:

23 DZRECT B~HATXOH

Anita B. Glover U Associates, Ltd. 1.0$21. Wnt DriYe

Fairfax. Vlralnla D030

(703) 59%·3004


50

1 BY MR. O'CONNELL:

2 Q. Would you state your name for the record?

3 A. Herman L. Courson.

4 Q. And are you the same Herman Courson who

s testified in this case last summer durinq trial?

6 A. Yes, sir, I am.

7 Q. And have your qualifications remained the

8 same since then?

9 A. Absolutely.

10 Q. And you are similarly employed?

11 A. Yes, sir.

12 Q. Mr. Courson, are you familiar with

13 Plaintiff's Exhibit No. ZZZ which is on a stand before you?

14 A. Yes, I have a copy of that.

IS Q. Mr. Courson, have you reviewed the deeds

16 that describe the easement that is depicted on that

17 exhibit?

18 A. Yes, sir, I have.

19 Q. Mr. Courson, I would like to direct your

20 attention to tab number twelve of the book of deeds that

21 has been previously submitted to the Court. This is a copy

22

23

of it (handing document to the witness.)

I direct your attention to the third

.-~--21

Ani~a B. Glover a Associa~es, Ltd. 10521 West DriYe

Fall'fas. Vlrdnla 22030

(703) 591·3004


51

1 paqe and ask you to identify -- read to us the portion of

2 the deed that is dated 1887 which relates to the

3 description of an easement.

4 A. Yes, this is the description here

s (indicatinq portion of deed).

6 Q. Could you read that description to us

7 please?

8 A. Riqht-of-way through the above described

9 parcel of land to the county road by the road now used and

to fifteen foot wide for the remaininq benefit of remaining

11 unsold land.

12 Q. All riqht. And directing your attention to

13 tab number twenty-two of the same book of deeds, the second

14 paqe under that tab number twenty-two, and I ask you to

IS read the section of the deed dated 1892 which is the

16 portion which describes the right-of-way.

17 A. It is at the bottom after the area. It

18 says, Also the riqht-of-way for the above land, road

19 fifteen feet from G, the southwest corner of the above

20 land, eight hundred and eiqhty feet along the line of Mrs.

21 Adams to a pair of bars, and then across Mrs. Mary c.

22 Sanders' land, south thirty-two fifty east three hundred

23 and twenty foot to a point near a pair of bars at her

I Anita B. Glover a Associates, Ltd. (703} 591·3004 !

I JO~Z% West Drive Falr•.cnr. Vlrtrlnla 220'30


52

1 stable, thence passing near house and with the present

2 outlet used by her through her land and through R. L. Adams

3 to the County road.

4 Q. All right. Have you reviewed Plaintiff's

s Exhibit ZZZ and compared the descriptions that you just

6 read to us to what is depicted on that exhibit?

7 A. Yes, sir, I have.

8 Q. And did you make some notations reqardinq

9 that depiction on a copy of the plat?

10 A. Yes, sir, I did.

1 I Q. And would you show us that plat please?

12 A. (Showing plat to Mr. O'Connell.) This is

13 the plat wherein I measured eight hundred and eighty foot

•~ from the corner and then turned the bearing off of it,

IS showing it on red on this plat.

16 Q. All right. You are looking at the left side

17 of the plat?

18 A. Yes. From the northeast corner of this

19 subdivision I measured the eight hundred and eighty feet

20 called for.

21 Q. And did you mark that measurement on this

22 copy of the plat?

23 A. Yes, I did.

Anita B. Glover f:l Associates, Ltd. (703) 59:1·3004 IOS21 Weac Drive

Fairfax, Vlrslnla 220~0


53

1 MR. O'CONNELL: Your Honor, could we have

2 this marked as

3 MR. GOODMAN: Wexford -- Wilkenfeld three.

4 MR. O'CONNELL: Wilkenfeld three.

s (The document referred to above was marked as

6 Wilkenfeld Exhibit No. 3 for identification.)

7 BY MR. O'CONNELL:

8 Q. Mr. Courson, again directing your attention

9 to the copy of Plaintiff's Exhibit ZZZ, which has been

10 marked Exhibit Wilkenfeld 3, and directing your attention

II to the left-hand side of the survey depicted where you can

12 see a double dotted line.

13 What did you find when you compared the

I~ route depicted by the double dotted line to the

IS descriptions you just read to us in the deeds?

16 A. Well, the description of that easement runs

17 approximately fifty foot or so past the double dotted line

18 you are talking about, the trail or whatever.

19 Q. All right. Did you mark that on the exhibit

20 that is before you?

21 A. Yes, I did.

22 Q. And in what color ink?

23 A. It is in red ink.

Anita B. Glover f:l Associates, Ltd. 10$21 West Drive

(703) 591·3004

Fairfax, Vlrslnla 22030


54

I Q. And did you mark the end of the eight

2 hundred and eighty foot line?


4 Q. Did you notice anything else about the

s double dotted line depicted by the plaintiff on the survey?

6 Directing your attention first to the area marked stone

7 point G.

8 A. Yes. It kind of wanders in and out. I

9 don't know whether it crosses the line or not, but it

10 wanders in and out parallel to the line for a ways.

II Q. Well, how does that compare to the

11 description in the deed?

IJ A. It is roughly in the same place with the

14 exception that it doesn't come down far enouqh to hit the

IS eiqht hundred and eighty foot lenqth.

16 Q. All right. And did you mark beyond the

17 eight hundred and eighty foot point?

18 A. Using the north arrow on this plat I turned

19 the bearing that is shown on here and that was in the deed

20 south thirty-two degrees, fifty minutes east, three hundred

21 and twenty feet, and I marked that on the same plat.

22 Q. Using what color ink?

23 A. Using red ink.

Anita B. Glover U Associates, Ltd. (703} 591·3004 IOS2l Weat Drl'Ye

Fairfax, Vlralnla 22030


55

Q. And did you mark the course of the easement

2 description from the deeds any further than that?

3 A. No, sir, I couldn't because there is no

4 description as far as mathematics are concerned.

s Q. Was there any other means you could use

6 derived from the deeds to mark further on this plat?

1 A. No, sir, there isn't that I could see.

8 Q. Your marking on the Wilkenfeld 3 beyond the

9 eight hundred and eighty foot point, what lots did those go

10 through?

II A. It runs through lots four, three, two, and

12 one. That is where it appeared after marking it.

IJ Q. Mr. Courson, have you had an occasion to

14 review the area that is depicted on this plat?

IS A. Yes, sir, I have.

16 Q. And when was that?

17 A. That was Monday, February the 24th.

18 Q. Of what year?

19 A. This year.

20 Q. And in looking at the copy of the plat did

21 you find any of the roads that are depicted on the plat?

22 A.

23 Q.

Yes, sir, I did in a couple of places.

And would you tell us what you found,

----26 Anita B. Glover f:l Associates, Ltd.

IOS%1 We•t Drive FaJrfmr, Vl.-.lnla Z%030

(703) 59%·3004


56

identifying from the plat the names of the roads?

2 A. Well, you are talkinq about Bird Road and

3 Spring Branch Drive?

4 Q. Yes.

s A. I went all -- These appear to be platted

6 graphically on here as they are on the ground.

7 Q. And what did you find then the day that you

8 were out there?

9 A. Well, it is developed and paved and accepted

10 by the State for maintenance I assume.

11 Q. Why do you assume that?

12 A. Well, because Fairfax county regulations

13 state that you have to have frontage on a State accepted

14 road in order to subdivide.

IS Q. All right.

16 MR. O'CONNELL: Could I have Park Authority

17 Exhibit No. 12, the two photos?

18 THE COURT: (Handinq documents to Mr.

19 O'Connell.)

20 BY MR. O'CONNELL:

21 Q. Mr. Courson, I show you a photograph

22 previously marked as Park Authority Exhibit No. 16 (handing

23 photograph to the witness.), and I ask you to look at it

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1 and tell us whether you recognize that view, and if so

2 A. (Lookinq at photoqraph as requested by

3 counsel.) Yes, that appears to be the intersection of Bird

4 Road and Spring Branch Drive.

s Q. And is that one of the roads you referred to

6 as being a State road?

7 A. Yes, sir, it is.

8 Q. And could you tell us how wide that road is,

9 that roadway?

10 A. Well, the right-of-ways are fifty feet, and

Jl the·roads are approximately thirty feet.

12 Q. The macadam portion of the road?

13 A. Yes, the paved portion.

14 Q. And did you look at the embankments on

IS either side of the road?


17 Q. And did you make an estimate of their

18 grades?

A. From about this tree on the left edge of the

20 photo here to the edge of the pavement here appeared to be

21 in the vicinity of fifty percent grade, or roughly almost a

22 two to one slope. And on the other side

23 Q. Is that the right side? i

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1 A. The right side of the road is slightly

2 flatter than that with, I would say, approximately a thirty

J percent grade.

4 Q. All right. Thank you.

s Did you go to the top of the embankment

6 on the left side of the road?


8 Q. Mr. Courson, I direct your attention to a

9 photograph previously marked as Park Authority Exhibit No.

10 13 and ask you if you recognize what is depicted there?

II A. Yes, sir, that shows the slope.

12 Q. And is there a natural marker near the top

IJ of the embankment?

14 A. Yes, sir, there is a large tree right up

IS here (indicatinq), and the one adjacent to it appears to be

16 on natural qround.

17 Q. And that is located where?

18 A. That is on lot twenty-five.

19 Q. Do you see that tree in what has been marked

20 as Park Authority Exhibit 14? (Handing photograph to the

21 witness.)

22 A. (Looking at photograph as requested by

23 counsel.) Yes, sir, that is the same tree right here

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(indicating on Park Authority Exhibit No. 14.)

2 Q. What do you mean by natural ground?

3 A. It does not appear to have been disturbed.

4 It has not been sodded. It just looks like the dirt has

s been there for a long time in this state. In other words,

6 it hasn't been disturbed by the cut through here for the

7 road or the slope.

8 Q. can you explain to us how the embankments

9 that you referred to .earlier were created?

10 A. They were caused by the grading of Bird

II Road apparently through the hill that was there prior to it

12 being put in place.

13 Q. Could you tell us what the perpendicular

14 drop is from the top of the two embankments you have

IS previously described to us to the macadam road?

16 A. I estimate it at about twenty feet from the

17 lot twenty-five, and about, say, fifteen feet from lot two.

18 Q. Did you go behind the house that is located

19 on lot two?


21 Q. And what improvements did you find behind

22 there?

23 A. There is a fence between lots two and three.

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Q. Have you marked that on your exhibit,

2 Wilkenfeld Exhibit No. 3?

3 A. Yes, sir. Yes, sir, I marked it in black

4 ink.

s Q. And that is separating which lots?

6 A. That is between two and three.

7 Q. Did you find any other fences among those

8 lots?

9 A. There was a fence on the other side between

10 lots three and four, and there was a swing gym set for

11 children up against the fence between two and three.

12 Q. And is there any other improvement on lot

13 three?

14 A. There is a swimming pool behind lot three.

JS Q. And is that swimming pool -- Where is it

16 located as depicted on Wilkenfeld 3?

17 A. It seems to be about forty feet off the

18 corner of the house on one end, and sixty feet off, and it

19 goes between the pool and the house.

20

21 three?

22

23

Q. And so is the swimming pool depicted on lot

A. Yes, sir, it is.

Q. And how is it depicted?

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I A. It is in ink as a small square.

2 Q. Is it near any other thinq?

3 A. It is near where this travel way is supposed

4 to be on this plat.

s Q. Mr. Courson, did you qo to the area that is

6 marked as lot thirty-eiqht?


8 Q. And did you notice anythinq about the

9 contour of the land between lots thirty-eiqht and thirty-

10 nine?

11 A. There is a considerable drop between there

12 and lot thirty-nine of, I would say, fifteen feet.

13 Q. And is there any structure in that area?

14 A. There is a retaininq wall, a wooden

IS retaininq wall, approximately on the property line, and a

16 further drop on the other side of that.

17 Q. Well, in your opinion does the double dotted

18 line depicted on Plaintiff's Exhibit ZZZ depict the route

19 of the easements described in the 1887 and 1892 deeds?

20 A. I don't know because it isn't described on

21 that end in the deed.

22

23

MR. O'CONNELL: Your Honor, I move

Wilkenfeld Exhibit No. 3 into evidence depicting the

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1 findings that Mr. Courson has described to us earlier?

2 THE COURT: All right, sir. I want the

3 pictures back.

4 MR. O'CONNELL: Yes, sir.

s THE COURT: Mr. Snyder.

6 MR. O'CONNELL: I just have one more brief

7 question since it is already marked on there.

8 THE COURT: All right.

9 MR. O'CONNELL: I want the explanation on

I o the record.

II BY MR. O'CONNELL:

1:! Q. Mr. Courson, directing your attention to the

13 area on Wilkenfeld Exhibit 3 that is along lot number two

•~ and along Bird Road, there are some markings on there.

IS Would you tell us what they indicate?

16 A. They are bushes and plantings along both

17 sides.

18 Q. And directing your attention to the property

19 line at the left edge of lot twenty-five, are there some

:!O markings on there?

:!1 A. Yes, sir, that is the tree that I spoke of

22 in the picture, the large tree that was shown.

23 MR. O'CONNELL: That is all the questions I

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HERMAN L. COURSON - CROSS

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1 have of this witness, Your Honor.

2 THE COURT: All right, sir.

3 CROSS-BXAKI.R&TIOB

4 BY MR. SNYDER:

s Q. Did you perform a field survey to locate

6 these various objects and lines you have depicted on here?

7 A. No, sir, I was just there in person and saw

8 them, and I had this with me.

9 Q. All right. If you were going to locate, say

10 for instance what you have depicted on lot twenty-five, a

II pool, how would you normally in a survey locate such an

12 object?

13 A. I would probably come off of the lot corners

I~ with a transit and a peq.

IS Q. Uh-huh. All right. You didn't do any of

16 that?

17 A. No, sir, I didn't.

18 Q. And for the location of these other thinqs

19 that you have marked on here?

20

21

22

23

A. I tried to use what was on this plat, sir.

Q. And just your eyes?

A. Right.

Q. And drew it on?

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A. Yes, sir.

2 MR. SNYDER: Well, I would object to this

3 being entered, Your Honor. We have photographs.

4 THE COURT: Did you find point G?

S THE WITNESS: No, sir, I didn't.

6 THE COURT: You never found that?

7 THE WITNESS: Not in the ground. I took it

8 off of this plat here (indicating plat).

9 THE COURT: How did you figure out what

10 eight hundred and eighty feet was?

II THE WITNESS: This has a scale of one inch

12 equals one hundred feet. So I scaled down the property

13 line that far.

14 BY MR. SNYDER:

IS Q. Did you measure the path while you were out

16 there?

17 A. No, sir, I didn't.

18 Q. So you don't know if the path itself that

19 this is reflecting, you don't know how long it is, do you?

20 A. No, sir, I did not measure the path.

21 Q. Do you have any way of determining whether

22 the measurements taken in the deed that you were using as a

23 reference, do you have any way of knowing whether those I

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I measurements were accurate?

2 A. No, sir, I don't except just what the deed

J said.

4 Q. When you did walk the path, these shaded

s areas that have been indicated as portions of a pathway

6 that is still there, would you agree that these shaded

7 portions are still identifiable?

8 A. There are alonq here (indicating)

9 Q. What about up here (indicatinq)?

10 A. --and over here (indicatinq). I didn't see.

I I them up there.

12 Q. You didn't see any pathway alonq here

13 (indicating)?

14 A. I saw it down here (indicatinq), yes, sir.

IS Q. Did you qo up here (indicatinq)?

16 A. No, sir.

17 Q. You didn't qo any further than where?

18 A. Than riqht up here (indicatinq).

19 Q. There was one here you are sayinq

20 (indicatinq)?

21 A. Where it is -- Riqht alonq in here

22 (indicatinq)?

23 Q. You are saying along lot four?

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A. Along in lot four.

2 Q. And you are saying there was one around

3 parcel A, in the middle of parcel A?

4 A. (Nodding head.)

s Q. I'm sorry, parcel A in the middle of the

6 diagram?

7 A. (Nodding head.)

8 Q. Did you see anything down by parcel thirty-

9 nine

10 A. Thirty-nine •

II Q. -- and forty?

12 A. There is a roadway at that point, a small

13 track.

14 Q. All right.

IS THE COURT: Is that the same thing?

16 MR. SNYDER: Yes, sir, Your Honor. Actually

17 the difference is -- There is one difference. This has

18 actually dots on it that indicate where it was staked, but

19 otherwise it is identical.

20 I would object on the basis that all he

21 has done is gone out on the property and did what we did

22 today.

23 are.

He drew in by hand where he thinks these objects

He did not walk the whole path. He didn't measure

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the path. He did no field survey. All he did was took a

2 deed, which he does not know whether or not is accurate,

3 and he never actually applied it to the ground.

4 THE COURT: I sustain your objection.

s MR. O'CONNELL: Well, Your Honor, as I see

6 the point, what he has drawn on there he derived from the

7 deed and drew the easement, the alleged easement, using the

8 description from the deed.

9 And the whole point is to compare that

10 description to the roadway that they have drawn on that

II survey usinq their scale.

12 MR. SNYDER: Well, all we did, Your Honor,

13 was qo back to what Mr. Porter originally said he saw.

14 Before he made ~ development he said he saw a road and his

IS surveyor put it on a survey. Then they built on top of it.

16 And all we did was qo back and try to reconstruct it. And

17 we have got the information to do that and we did that.

18 And whether or not the deed is accurate

19 is not what we are here for today. It is whether or not we

20 can locate this easement. And I think anybody that is --

21 Mr. Porter specifically said it was easily visible to him

22 when he was standing on it.

23 And to come in here and to say that

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because you can't line it up exactly with what the deed

2 says, that thing had been in use since 1892. It is still

3 there today.

4 The portions of it -- We can't say with

s one hundred percent certainty the portions that are built

6 on, but we can connect them up to the portions that are

7 still there.

8 MR. O'CONNELL: Your Honor, they are here

9 today purportedly to enforce an express easement which is

10 derived from these deeds. It is from these deeds that they

11 got what they qot if they have got anything at this point.

12 And that is why he has drawn on here

13 his depiction of the route as far as he can take it, what

14 is described in those deeds. We are not trying to say

IS where the road is. We are merely depicting on the paper

16 what is said in the deeds and comparing it to the road they

17 say they found.

18 And the point is that they are

19 different. They haven't shown the easement described in

20 these deeds. Their survey with an alleged route is

21 incorrect in part and has no basis in other parts.

22 THE COURT: Well, that is going a little

I 23 far. But even your client says the only point that he

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I knows is eiqht hundred and eiqhty feet. That is the only

2 one he knows. He has no idea where it goes after that.

3 MR. O'CONNELL: Well, we went a little

4 further from the deed that says that there is a bearinq at

s the end of eight hundred and eiqhty feet that goes for

6 three hundred and twenty feet.

7 Beyond that we are in the dark. That

8 is the purpose of this evidence, to demonstrate that. We

9 are not attemptinq by this evidence to say where the road

10 qoes.

ll THE COURT: It looks like that angle where

12 these people took the existinq road, just by inspection, is

13 the same. I assume he used a protractor or something.

14 But where this goes looks awfully close

IS to that. That is a parallel line if you move that up to

16 that point where they said it turns.

17 MR. O'CONNELL: Well, it depends on what you

18 mean by close. Looking at his scale it looks to be about

19 seventy feet difference. He has got one inch equals one

20 hundred feet. I would say those lines look to be seventy-

21 five feet apart at least.

22 The point is it is a different route,

23 and the point is that the route of the easement that was

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granted by deed, which we contend is no longer effective

2 but it was granted at one point, is not the route of the

3 road that they have depicted on there.

4 The authority for any easement is in

s the deeds, and they have not shown us the route of the

6 easement. They have shown us the route of some road.

7 THE COURT: They have two easements first of

8 all.

9 MR. SNYDER: That is correct, Your Honor. I

10 mean certainly the evidence is that the route that we are

II talking about has been used since Mr. Atkisson was child,

12 which is well past the point of years that you have to have

13 for prescriptive easements.

14 Secondly, as far as part of the reason

IS that I think that their contention that we never had an

16 easement to begin with is because of the idea of where the

17 location of the cemetery was. That was not an exact

18 location. We went out there and found the cemetery.

19 We also note -- I mean, you know, we

20 don't know whether or not their original survey showing

21 this eight hundred and eighty feet is accurate. But we do

22 know from looking at it from their own evidence that it is

23 as clear as day. It is still out there. You can see the

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1 curve.

2 And that is a path that the testimony

3 is has been in use for I don't know how many years.

4 MR. O'CONNELL: Your Honor, they derived

s their right from the deed. That is what was given.

6 THE COURT: That is one part of it, Mr.

7 O'Connell.

8 MR. O'CONNELL: Well, for that part of it we

9 offer this evidence as being relevant.

10 THE COURT: I will accept it.

II (The document previously marked as Wilkenfeld

12 Exhibit No. 3 for identification was

IJ received into evidence.)

14 MR. O'CONNELL: Whether it is persuasive to

IS the Court is another question, but we certainly want it of

16 record so that it can be argued and viewed on appeal.

17 THE COURT: All right.

18 Do you have any other questions?

19 MR. SNYDER: I think I asked them all on

20 voir dire.

21 (Brief pause.)

22 MR. SNYDER: No further questions.

23 THE COURT: All right, sir. You may stand

I i

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MARK S. ALBANESE - DIRECT

72

down.


3 MR. GOODMAN: Your Honor, we call Mark

4 Albanese.

s Whereupon,

6 HARK S. ALBABBSB,

7 a witness, was called for examination by counsel for

8 We~ford Associates and the individual defendants, and,

9 havinq been first duly sworn by the Court, was examined and

10 testified as follows:

11 DIRBCT BDiaJIATIOB

1:! BY MR. GOODMAN:

13 Q. Mr. Albanese, would you state your name for

14 the record please?

IS A. My name is Mark s. Albanese.

16 Q. Are you the same Mark Albanese who qualified

17 as an expert and testified in this case earlier this

18 summer?

19 A. Yes, I am.

20 Q. Have your qualifications chanqed since then?

21 A. No, they have not.

22 MR. GOODMAN: Your Honor, I want to examine

23 him briefly as an expert witness.

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THE COURT: Go ahead, sir.

2 BY MR. GOODMAN:

3 Q. Mr. Albanese, did you do a title brinq down

4 on lots two throuqh seven, ·twenty-three, twenty-five, and

s thirty-eiqht in section three of Wendover?

6 A. Yes, I did.

7 Q. Did you do that at my request?

8 A. Yes, I did.

9 Q. Did you find that there were one or more

10 deeds of trust on each property?

Jl A. Yes, that is correct.

12 Q. They are current on that property as of the

IJ time of your search?

14 A. As of the 24th of this month, yes, that is

IS correct.

16 Q. That was earlier this week?

17 A. Yes, sir.

18 Q. Did you check the tax values of those

19 properties?

20 A. Yes, I did.

21 Q. All riqht. Have you prepared a chart

22 showing the names of the owners, the lots, and the tax

23 values?

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1 A. Yes, I have.

2 MR. GOODMAN: Your Honor, we could probably

3 mark this as one exhibit. These are all certified copies.

4 THE COURT: All riqht, sir.

s MR. GOODMAN: Your Honor, I believe that

6 would be Wexford No. 31.

7 THE COURT: All riqht. Please mark that

8 Wexford No. 31.

9 (The documents referred to above were marked as

10 Wexford Exhibit No. 31 for identification.)

II BY MR. GOODMAN:

I~ Q. We have an exhibit marked as Wexford No. 31.

13 Would you tell the Court briefly what that exhibit is, sir?

14 A. If I may address first, the first exhibit is

IS the ownership assessment schedule that I prepared.

16 Q. Yes.

17 A. These are basically printouts from the

18 County computer on each parcel. And then underneath that

19 is --

20 Q. You have got the name of each owner, each

21 lot, and the tax assessed value?

22

23

A. That is correct.

Q. All right. In the interest of brevity we


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1 will just deal with one of these --

2 A. Okay.

3 Q. -- because I think you will tell me they are

4 all the same except for a different lot and a different

s owner.

6 What is the paqe immediately under the

7 top sheet? There is one that looks like a computer

8 printout. It says, Map one, twenty-seven dash four.

9 A. Okay. That is a reflection of the records

10 on lot two.

II Q. Is that where you qot the tax assessed

12 value?

13 A. That is correct. You will find that in the

14 bottom riqht-hand corner on that sheet, on the first sheet.

IS Q. Okay. And then the next eight sheets are

16 the tax assessed values for each of the properties?

17 A. on each successive lot, correct.

18 Q. All riqht. Skippinq to the first long sheet

19 where at the top it says, Fee simple title vested in James

20 E. Henry and Susan H. Henry.

21 A. Uh-huh.

22 Q. What is that sheet, sir?

23 A. Okay. That is just a brief summary of

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1 property ownership and then any lien encumbrances on the

2 property if present.

3 Q. Okay. And do you have -- If I read this

4 correctly it says there is a deed of trust recorded in

s 1985, deed book sixty-two eleven, paqe six oh four.

6 A. What that reflects, that is the acquisition

7 deed reference. If you follow down to the next paragraph

8 where it states deeds of trust

9 Q. All riqht. There are two of them on this

JO property?

Jl A. You will find two of those with certified

12 copies enclosed.

13 Q. All right. Now, for each of the successive

J4 lots, three through seven, twenty-three, twenty-five, and

IS thirty-eight; do you have all deeds of trust recorded on

16 the property?

17 A. That is correct.

18 MR. GOODMAN: Your Honor, I would ask the

19 Court to take judicial notice of these deeds of trust on

20 the property owned by the defendants who are remaining in

21 this case, and accept this document into evidence as

22 Wexford No. 31.

23 THE COURT: All right, sir. !

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I MR. SNYDER: I would object, Your Honor,

2 basically on relevance. I don't see what -- We know who

3 the owners of the lots are. They have been named in the

4 suit. The value of the property, the deeds of trust are

s not relevant to what is at issue in this suit.

6 THE COURT: Overruled.

7 MR. GOODMAN: If the Court will just --

8 THE COURT: It is not qoinq to relevance.

9 But they are authenticated deeds of trust.

10 (The document previously marked as Wexford

II Exhibit No. 31 for identification was

12 received into evidence.)

IJ MR. GOODMAN: Your Honor, I have no further

14 questions for the witness.

IS

16

17

18 down.

19

20

21 Your Honor?

22

23

THE COURT: Mr. Snyder.

MR. SNYDER: I have no questions.

THE COURT: All riqht, sir. You may stand

(Witness excused.)

MR. GOODMAN: May the witness be excused,

THE COURT: Yes, sir.

MR. GOODMAN: Your Honor, I would call, Mr.

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JAMES E. HENRY, JR. - DIRECT

78

I Henry.

2 Whereupon,

3 JlUIBS B. BBIJRY, JR.

4 a witness, was called for examination by counsel for

s Wexford Associates, Inc., and the individual defendants,

6 and, having been first duly sworn by the Court, was

7 examined and testified as follows:

8 DIRBCT B%AKX~TIOR

9 BY MR. GOODMAN:

10 Q. Mr. Henry, would you state your name and

II address for the record, please?

12 A. Yes, James E. Henry, Jr., 2026 Spring Branch

13 Drive.

)4 Q. Is that lot two in the Wendover Subdivision,

IS Section Three?

16 A. Yes, it is.

17 Q. And you are one of the defendants in this

18 lawsuit, are you not?

19 A. Correct.

20 Q. You and your wife, Susan, own lot two?

21 A. Yes, sir.

22 Q. Were you with the Court this morning when we

23 went on a view and looked at the purported easement across

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your property?

2 A. Yes, sir.

3 Q. What is the approximate market value of your

4 property, if you know, Mr. Henry?

s A. Somewhere in I would say the five fifty to

6 six hundred range. I am not sure what the market is at

7 this point, but there have been comparables sold within the

8 last nine months in that range.

9 Q. · As you go through your neighborhood, I guess

JO to the north, lot three is next to you; lot three is the

II one with the swimming pool; and then lots four through

12 seven, would those homes in your view be worth at least as

13 much money as yours?

I-I A. Yes.

IS Q. I want to draw your attention to Plaintiff's

16 Exhibit triple z which is on display here, and ask you if

17 you have seen that before?

18 A. Yes.

19 Q. Now, I want you to focus on lot number two.

20 Can you see it all right?

21

22

23

A. Yes.

Q. As the owner of lot number two and this

house, you live in that house, don't you?

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1 A. Yes.

2 Q. What impact would an easement that close to

3 your house have on the value of your property, if you know?

4 A. It is hard to put a value on that, but

s certainly privacy. I would hate to think of a pathway

6 coming past my living room, dining room, and kitchen. It

7 is right on top of the house basically.

8 I wouldn't particularly want to put my

9 house up for sale with that situation. It is hard to know

10 what that would do to it.

11 Q. I want to show you an exhibit that we have

12 got marked as Wilkenfeld No. 3.

13 MR. GOODMAN: Does the Court have that, Mr.

14 Courson's notes?

IS THE COURT: His notes? (Handing Wilkenfeld

16 Exhibit No. 3 to Mr. Goodman.)

17 MR. GOODMAN: Yes, thank you, sir.

18 BY MR. GOODMAN:

19 Q. I show you what has been marked as

20 Wilkenfeld Exhibit No. 3, and I draw your attention to the

21 red line drawn by Mr. Courson which shows this easement

22 cutting across the very lower corner of your property by

23 Bird Road. (Showing document to the witness.)

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Anita B. Glover f:l Associates, Ltd. XO§%X Wnt Drive

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1 How would that impact, an easement

2 there over the corner, impact on the value of your property

3 as opposed to the easement where the double dotted line is

4 next to your house?

s A. (Looking at document as requested by

6 counsel.) Much less, much less impact. Basically that is

7 down in the vicinity where that fire hydrant exist, and

8 there is a large tree that is right in here (indicating).

9 So that would minimize the impact on me personally.

10 Q. Is there a steep bank from your property

II down to Bird Road?

12 A. Yes.

13 Q. In the area of this easement?

14 A. Very steep.

IS Q. Do you know how steep it is?

16 A. Well, I would say there is probably at least

17 a fifteen foot drop from the top of that slope to the road.

18 I mean a vertical drop. When I purchased the property I

19 purposely landscaped it the way it is landscaped because it

20 is too dangerous to cut grass. You cannot walk on that

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slope.

Now, with the mulch there I can weed

and get in between tree, but there is no way you could

Anita B. Glover f:l Associates, Ltd. IOS::ll West Drive

Falrfa•. Vlralnla uo3o

(703) 59%·3004

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V I R G I N I A:

2 IN THE CIRCUIT COURT OF FAIRFAX COUNTY

3 -----------------------------X 4 GEORGE ATKINSON,

s Plaintiff,

6 versus, IN CHANCERY NO. 97823

7 WEXFORD ASSOCIATES, INC.,

8 et ·al,

9 Defendant.

10 -----------------------------X 11 Fairfax, Virginia

12 Thursday, January 7, 1993

13 The above-entitled action came on to be heard

14 before the Honorable Thomas A. Fortkort, a Judge in and for

IS the Circuit Court of Fairfax County, Fairfax County Judicial

16 Center, 4110 Chain Bridge Road, Fairfax, Virginia 22030,

17 beginning at approximately 10:10 o'clock a.m., before Lisa S.

18 Stablier, a Certified Verbatim Court Reporter.

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APPEARANCES:

For the Plaintiff:

SCOTT E. SNYDER, ESQUIRE QUENTIN R. CORRIE, ESQUIRE Anderson & Corrie 12450 Fair Lakes Circle, Suite 370 Fairfax, Virginia 22033

For the Fairfax County Park Authority:

RUTH E. SOULIER, ESQUIRE Assistant County Attorney County of Fairfax 12000 Government Center Parkway Suite 549 Fairfax, Virginia 22035

For Wexford Associates, Inc., et al:

BERNARD E. GOODMAN, ESQUIRE DANIEL J. O'CONNELL, ESQUIRE Goodman and Associates Law Offices Suite 800 8245 Boone Boulevard Vienna, Virginia 22182

C 0 N TENT s :

2

WITNESSES DIRECT CROSS REDIRECT RECROSS

JACK B. CONNER 19 31

98 101

TIMOTHY D. SCOTT 47 59

THOMAS REED 64 81

GEORGE ATKINSON 105

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E X H I B I T S

Plaintiff's Exhibit No. 1 --Form appraisal for Lot 2




Plaintiff's Exhibit No. 5 --Photographs of comparable single-family dwellings;

photographs of Lots 2, 3, 25, and 38

Plaintiff's Exhibit No. 6 --CV of Jack Conner

Wexford Exhibit No. 32 --Deed of easement

Wexford Exhibit No. 33 --Resume' of Thomas Reed

Wexford Exhibit No. 34 --Letter from Thomas Reed to Bernard Goodman

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Aalta B. Glover 8 Aaoclatea, Ltd. sosuWeatJhtiYe

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JACK B. CONNER - DIRECT

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1 proportionate share. I don't know how many heirs there are.

2 Your Honor, with respect to the cases the

3 court relied on, Conrad versus Strickler and Lindsey versus

4 Clark, which plaintiff takes great exception to, the parties

s there offered alternative easements, and the chancellor had

6 discretion there to award whatever was appropriate.

7 But the key in both of those cases was so

8 that it does not increase the burden of the owner of the

9 dominant estate, the person using the easement. We are going

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to produce evidence that if you go in over the park land, you

may have some grades to deal with, but if you go in over lot

two, you have to deal with a grade that's greater than forty

percent. I mean, it's not terribly different than over the

park land.

THE COURT: Thank you, Mr. Goodman.

Call your first witness, please.

MR. SNYDER: I call Jack Conner.

Whereupon,

JACK B. COHRER,

a witness, was called for examination by counsel for

plaintiff, and, having been first duly sworn by the court,

was examined and testified as follows:

DIRECT EXAMINATION

. ----56 Anita B. Glover El Associates, Ltd.

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1 BY MR. SNYDER:

2 Q. Please state your name.

3 A. Jack B. Conner.

4 Q. How are you employed?

s A. I'm a real estate appraiser.

6 Q. Who do you work for?

7 A. I'm self-employed.

8 Q. How long have you been a real estate

9 appraiser?

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A. Thirty-three years.

Q. Do have any formal training in real

estate appraisal?

A. Yes. In 1970 I became a candidate for

the American Institute of Real Estate Appraisers, and I

pursued their educational program and experience program to

obtain the MAI designation.

Q. What is that?

A. That's a Member of the Appraisal

Institute, which, at that point in time, was the premier

designation for real estate appraisers. In November of 1975

I met all the criteria, and I was designated an MAI.

Q. Could you briefly describe what that

criteria was.

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1 A. Five years of field variety experience;

2 at that point in time, three courses in principles of

3 appraising, income appraising, and single-family appraising;

4 the writing of two demonstration appraisal reports, one

s residential, one commercial, wherein you demonstrated

6 everything you know about the appraisal of real estate and

7 the tax value; an all-day comprehensive examination.

8 Q. Do you belong to any other professional

9 organizations relating to real estate?

10 A. No.

II Q. Now, could you --

12 A. I'm a real estate broker.

13 Q. Could you please describe some of the

14 types of real property or real property interests that you

IS have prepared appraisals for.

16 MR. GOODMAN: Excuse me, Your Honor. I

17 see counsel has got a resume'. If you will just give me a

18 minute, I think we can stipulate to Mr. Conner's expertise.

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THE COURT: All right, Mr. Goodman.

MR. GOODMAN: If I could just see that.

MR. SNYDER: Sure.

(Brief pause.)

MR. GOODMAN: We would stipulate to

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1 Mr. Conner as an expert appraiser.

2 THE COURT: All right, sir.

3 MS. SOULIER: There • s no objection, Your

4 Honor.

s THE COURT: Thank you, ma'am.

6 MR. SNYDER: Thank you, Your Honor.

7 BY MR. SNYDER:

8 Q. Have you ever had an opportunity to

9 conduct a real estate appraisal of a valuable easement?

10 A. Yes, I have done numerous work on

11 easement values. In 1970, in Binghamton, New York, I did

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right-of-way appraisals for the Southern Tier Expressway,

Route 17, for the Department of Highways in New York.

More recently, in 1988 and '89, I did the

appraisals for the right-of-way for Route 28 in Loudon

County, from Dulles Airport to Route 7. In 1990 I did half

a dozen appraisals in Winchester for the new road that was

being proposed in the City of Winchester.

In both cases the client was VDOT, the Virginia

Department of Transportation, and in both cases I testified

in court as to value.

Q. Could you please describe what method of

valuation you used when arriving at a value for the easements

Anita B. Glover f:l Associates, Ltd. xons Wed Drl•e

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for the Virginia Department of Transportation.

2 A. Well, it depends on the easement and what

3 is being taken. The typical procedure is what they call a

4 before-and-after, where the easement or right-of-way, or what

s have you, will substantially impact the value of the

6 property.

7 In other instances, where they are taking five feet

8 of· the front of the property, they typically do what they

9 call a simple acquisition appraisal wherein you just come up

10 with values and assign that to either the value taken in fee

II or the easement value.

12 Q. Now, are these instances where the path

13 of the easement has already been designated?

14 A. Yes. That's done by government, court.

IS This instance that I worked in was by VDOT. It's not up to

16 me to say where the easement, or what have you, is being

17 taken. We merely assign values and/or damages to the

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property.

Q. Now, have you performed a similar

appraisal for the Atkinson easement at my request?

A. Yes, I have.

Q. Did you arrive at a value of the monetary

value for this easement?

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I A. Yes, I have.

2 Q. What is that value?

3 A. $2,330,000.

4 Q. If I could get you to please break that

s down.

6 MR. GOODMAN : Could you repeat that,

7 please? Two million what?

8 THE WITNESS: Three hundred thirty

9 thousand dollars.

10 MR. SNYDER: I believe Your Honor already

II has in evidence, I hope, this plat which was submitted at

12 some previous hearing.

13 BY MR. SNYDER:

14 Q. If you could use this, I want you to

IS indicate to the court how you arrived at the value that you

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just cited. What did you do?

A. You want me to start at one, or where do

you want me to start here?

Q. Start at one.

A. The first property, by numerical order,

was parcel number two, which is improved by a single-family

dwelling. Three is also improved with a single-family

dwelling and a swimming pool in the rear.

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On those properties, the assumption was that

because the easement would substantially impact the value of

the property, we assumed a total take wherein we searched the

market for comparable property and prepared form appraisals

for those two properties, assuming that they would be taken

in fee.

As we continue up in numerical order, lot numbers

four, five, six, and seven, which terminates at the cemetery,

the easement was to the back of these lots and does not

severely impact the value of the property.

In arriving at the value of those lots, the

easement value, we determined the square footage of the

easement. We obtained cite plans from the county that

depicted the square footage of the lot, and it's my

understanding from Mr. Snyder that the easement is fifteen

feet wide.

Then we ascertained the value of lots in that

neighborhood, which, by research and previous assignments in

the area, we estimated the lot in there at a damage value of

$150,000. We divided the square footage of the lot into

$150,000 and came up with a square-foot value.

Now, depending on where the easement is, obviously

the value of the front part of the lot is greater than the

Anita B. Glover f:l Associates, Ltd. •~ West Drive

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1 rear part of the lot. So we took a percentage of that

2 square-foot value, which was slightly more than fifty

3 percent. And then because we are not taking the property in

4 fee, we are only taking the easement value, we are not

s getting the whole ball of wax, again, we assigned a

6 percentage to that of seventy-five percent.

7 Then we multiply all these numbers

8 together, and we came up with the easement value for that

9 lot.

10 Q. Can you go ahead and give the value per

II lot that you arrived at.

12 A. Well, lots two and three were assumed to

13 be a total take. Lot number two, the value would be

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$550,000; lot number three, $615,000; lot four, which is an

easement value, no improvements, that would be $6,539; lot

number five, no improvements, $6,951; lot number six, $4,528;

lot number seven, $3,432.

Lot number twenty-three, there was only a tip of

the property being taken to the rear. We assigned a nominal

value to that, which is typical in highway takings, of a

thousand dollars.

Number twenty-five is improved with a dwelling in

this upper price range, and there again we assumed that there

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I would be a total take of that property because the easement

2 was coming up the driveway and taking part of the corner of

3 the house off. So lot number twenty-five would be $585,000.

4 Thirty-eight, again, the easement goes right

s through the property, and we assumed a total take. That

6 value is $555,000. Lot number thirty-nine, no improvements,

7 the easement value was $3,162. Lot number forty, again, just

8 touches the tip of the property rear, and we assigned a

9 nominal value to that of five hundred dollars.

10 The total, then, rounded, is $2,330,000.

11 Q. Of that total that you just cited, are

12 you able to say that, within a reasonable degree of certainly

13 for a real estate appraiser, that is the value of this

14 easement?

IS A. Yes. Under the assumptions I made, that

16 was the value that we would conclude with.

17 Q. Let me show you --

18 MR. GOODMAN: Your Honor, there are some

19 photographs here which the witness is going to identify. We

20 will deal with those later. With respect to these

21 appraisals, we have his testimony as to the values. He

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hasn't testified with respect to the rest of that

information. I don't know that it's necessary, and I would

----64 Anita B. Clover f4 Associates, Ltd.

10SZ1 Weat DriYe Falrfas, Vlralnla 22030

(703) S9I•3004

JACK B~ CONNER - DIRECT

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I object on that basis.

2 MR. SNYDER: Well, I haven't tried to do

3 anything with them yet. I think he has testified that the

4 values of the property --

s THE COURT: Well, let's lay the

6 underlying foundation. Go ahead.

7 MR. SNYDER: Thank you.

8 BY MR. SNYDER:

9 Q. Let me get you to identify what we' 11

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A. This is our guide form appraisal of the

value of the property known as lot number two.

Q. And that's an appraisal for the value of

an entire taking?

A. Yes.

Q. What is the value according to that

appraisal?

A. $550,000.

Q. Thank you.

MR. SNYDER: I would like this marked and

moved in as Plaintiff's 1.

(The document referred to was

marked Plaintiff's Exhibit

Anita B. Clover U Associates, Ltd. soas Wat DrtYe

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I No. 1 for identification.)

2 BY MR. SNYDER:

3 Q. Can you identify that document?

4 A. This is the same type and form appraisal

s for the property known as lot number three, an assumed total

6 take.

7 Q. And the value according to that

8 appraisal?

9 A. $615,000.

10 MR. SNYDER: I would like this marked as

II Plaintiff's 2 and moved into evidence.

12 (The document referred to was

13 marked Plaintiff's Exhibit

14 No. 2 for identification.)

IS BY MR. SNYDER:


17 A. The same type appraisal for the property

18 known as lot number thirty-eight.

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Q. And the value of that?

A. $555,000.

MR. SNYDER: Could we have that marked as

Plaintiff's 3 and moved into evidence?


Anita B. Glover 8 Associates, Ltd. SOI2.S Wed Drive

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I marked Plaintiff's Exhibit


3 BY MR. SNYDER:


s A. Yes. This is the same type and form

6 appraisal for the property known as lot twenty-five.

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Q. What is the value for that?

A. $585,000.

MR. SNYDER: This will be marked as

Plaintiff's 4 and moved into evidence.


marked Plaintiff's Exhibit

No. 4 for identification.)

BY MR. SNYDER:

Q. Could you please identify these three

sheets, which we will mark as Plaintiff's 5, altogether.

MR. GOODMAN: Excuse me. Which one is

Plaintiff's 4, which lot? Is it lot number two?

MR. SNYDER: Could I see Plaintiff's 4?

BY MR. SNYDER:

Q. Which lot was Plaintiff's 4?

A. Like it says there at the top, lot

twenty-five.

Anita B. Glover U Associates, Ltd. 10121 West Drive

Falrfaz, Vlr81Dia 22030

(703) 59%·3004


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1 MR. GOODMAN : Counsel, I'm sorry, I'm

2 just a little confused. Which one was Plaintiff's 3?

3 THE WITNESS: Twenty-five, probably.

4 MR. SNYDER: No, that was Plaintiff's 4.

s BY MR. SNYDER:

6 Q. Can you identify what you have here?

7 A. These are photographs of four

8 photographs of excuse me, three photographs of comparable

9 dwellings that we used in our analysis.

10 Q. What are they photographs of?

II A. Similar single-family dwellings.

12 Q. Those are the photographs of comparables?

13 A. Yes. And then there is two pages of

14 photographs of the subject property, lots two, three, twenty-

IS five, and thirty-eight.

16 MR. SNYDER: I would like the photographs

17 marked as Plaintiff's 5 and moved into evidence.

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(The documents referred to

were marked Plaintiff's

Exhibit No. 5 for

identification.)

MR. SNYDER: Your Honor, I would also

like to move into evidence the CV of Mr. Conner, since there

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JACK B. CONNER - CROSS

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1 was a stipulation as to his credentials.

2 MR. GOODMAN: No objection.

3 MR. SNYDER: This would be Plaintiff's 6.

4 (The document referred to was

s marked Plaintiff's Exhibit


7 MR. SNYDER: I have no further questions.

8 CROSS-EXAMIHATIOH

9 BY MR. GOODMAN:

10 Q. Mr. Conner, I want to deal with lots

II four~ five, six, seven, twenty-three, thirty-nine, and forty

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first. Those are the ones that you didn't do a total take

of.

I believe you testified that you took the square

footage of the easement and made a fraction, with that being

the numerator and the denominator being the square footage of

the property, in arriving at your value; is that correct?

A. In arriving at the value?

Q. Yes.

A. Well, there was a combination of four

factors. It was the square footage of the easement times the

land value times the percentage of the fee value, and that

equals the easement value.

Anita B. Glover 8 Associates, Ltd. ~•sz~ Wen DriYe

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STATEMENT OF COUNSEL FOR PARK AUTHORITY

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Honor.

2 THE COURT: Thank you, sir. You may

3 stand down.


s MR. SNYDER: I have no further evidence,

6 Your Honor.

7 MS. SOULIER: Your Honor, the Park

8 Authority would call Timothy Scott, please.

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THE COURT: How long are you going to

have Mr. Scott on the stand?

MS. SOULIER: Not too long, but I need to

make a proffer before he does take the stand, Your Honor.

THE COURT: What's your proffer?

MS. SOULIER: I would like to present it

to the court, and I'll give copies to opposing counsel. May

I approach, Your Honor?

THE COURT: Yes.

MS. SOULIER: I' 11 read it into the

record.

THE COURT: Okay.

MS . SOULIER: Your Honor, the Park

Authority would like to proffer as follows. The defendant

Park Authority is willing to provide two means of access to

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1 plaintiffs George Atkinson and Carlotta T. Atkinson, and

2 other Atkinson family members, to what is known in the

3 instant case as the Atkinson family cemetery, twenty-four

4 hours per day, on a continuing basis.

s Such access would be by way of Billington

6 Court or Spring Branch Drive, over Park Authority property,

7 and the specific route regarding that access will be further

8 described in testimony this date. An access trail would be

9 cleared over either of those access routes.

10 The Park Authority is further willing to

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initially clear and continually maintain the area

encompassing the Atkinson family cemetery, and that

maintenance would include erecting a fence around the

boundaries of the cemetery.

The Park Authority would call Mr. Scott.

Whereupon,

TIMOTHY D. SCOTT,

a witness, was called for examination by counsel for the Park

Authority, and, having been first duly sworn by the court,

was examined and testified as follows:

DIRECT EXAMINATION

BY MS. SOULIER:

Q. Mr. Scott, you are Mr. Timothy D. Scott,

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TIMOTHY D. SCOTT - DIRECT

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who has testified before this court previously in this

matter; isn't that true?

A. Yes.

Q. And you are employed by the Park

Authority as a landscape architect?

A. Yes.

Q. Mr. Scott, how long have you been a

landscape architect?

A. Fourteen years.

Q. Have you worked for the Park Authority

that entire fourteen years in that capacity?

A. I have been with the Park Authority for

a little over eight years. For the preceding five years, I

was with a private architectural engineering firm.

Q. Now, can you describe your duties,

particularly with respect to the Park Authority, as a

landscape architect.

A. I'm responsible for the development of

site plans for parks, which includes site grading, facility

layout, and construction details.

Q. Did you perform those same types of

duties in the architectural engineering firm that you worked

for?

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1 A. Yes, I did, but they were for conunercial,

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Q. Not just involving parks.

A. Right.

Q. Can you tell us about your educational

background as it relates to your landscape architectural

background.

A. I have a five-year bachelor of landscape

degree from Kansas State University.

Q. What is that degree called?

A. It's a bachelor of landscape architect.

Q. I'm sorry, I had not heard you. When did

you get that degree, Mr. Scott?

A. 1979.

Q. Can you describe the course work that you

undertook, in getting the degree, that: s specifically related

to the degree itself, not your basic first- and second-year

courses. ·

A. I had six semesters of design; six

semesters of construction principles, which involved grading

and detailing and layout; and some regional and community

planning courses.

Q. During the course of that course work,

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I did you gain any experience with measuring distances and

2 grades?

3 A. Yes. There was course work involving

4 both actual sites and class exercises.

s Q. Where you actually had to go out and

6 measure grades?

7 A. We used topographic surveys to measure

8 grade.

9 Q. Now, with respect to your on-the-job work

10 with Fairfax County, Mr. Scott, have you been involved there

II in measuring distances and grades?

12 A. Yes. It's a daily part of the job.

13 Q. Can you try to estimate for us the number

14 of times you may have done that over the course of the past

IS eight years since you have worked for them.

16 A. Well, it would be well over a hundred

17 times for the Park Authority, and probably the same amount

18 for the previous job.

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Q. For the architectural engineering firm?

A. Right.

Q. Mr. Scott, have you taken any courses

since you have been with the Park Authority in landscape

architecture?

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1 A. I have taken seminars.

2 Q. How many do you estimate that you have

3 taken?

4 A. Oh, fifteen or twenty.

s Q. What does the subject matter of the

6 seminar generally deal with? Is there a way to --

7 A. Some were involving the use of

8 cQnstruction materials, others were involving engineering

9 principles in the use of site development.

10 Q. Have you taught any seminars yourself?

II A. I have given in-house presentations to

12 Park Authority staff two or three times.

13 Q. Now, does your unit within the Park

14 Authority are you within the design division?

IS A. Yes.

16 Q. Does your unit subscribe to landscape

17 architectural-type journals or magazine publications?

18 A. Yes.

19 Q. Approximately how many of those do they

20 subscribe to and how often do they arrive?

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A. Probably fi~e journals, probably monthly.

Q. As part of your duties, do you review

those? Do you read those?

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1 A. Yes.

2 Q. To keep current with the latest methods

3 involved?

4 A. Yes.

s MS. SOULIER: Your Honor, I would like to

6 move to qualify Mr. Scott as an expert in the field of

7 landscape architecture.

8 THE COURT: Any objection?

9 MR. SNYDER: I have no objection.

10 THE COURT: He is so qualified.

II MS. SOULIER: Thank you, Your Honor.

12 BY MS. SOULIER:

13 Q. Mr. Scott, do you have authority today to

14 discuss certain alternative access routes to the Atkinson

IS family cemetery?

16 A. I have authority to discuss two

17 alternatives.

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Q. Who is the person who gave you that

authority?

A. He's the deputy director for park

development, Mr. James Heberlein.

Q. Did he have authority himself to make the

decisions you are going to speak about in this courtroom?

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I A. Yes.

2 Q. In accordance with what you are prepared

3 to discuss today, did you have a document prepared or prepare

4 a document delineating those two access routes?

s A. Yes, I did.

6 Q. Who determined the distances and grade

7 measurements that are going to be noted on that document?

8 A. I prepared the alignment, and then the

9 staff technician determined the grades and distances, which

to I reviewed and verified.

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Q. And you determined that they were

accurate?

A. Yes.

Q. I'm going to show you, Mr. Scott, what

has been marked, I believe, as Park Authority Exhibit No. 25.

THE COURT: How about putting him in the

jury seat so that

MS. SOULIER: everybody can see.

Mr. Scott, would you step down and come

over here; please.

(The witness complied.)

MS. SOULIER: Or he could stand here.

That might be even closer to everybody, Your Honor.

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THE COURT: There might be a board in the

jury room. Can we get the board?

(A display board was retrieved and

4 positioned in the courtroom.)

s MS. SOULIER: Your Honor, can you see

6 that?

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THE COURT: Yes.

MS. SOULIER: Scott, can you see that?

MR. SNYDER: Yes.

BY MS. SOULIER:

Q. Mr. Scott, I will try to stand over here

out of the way and ask you a question so everyone can see.

Could you iden~ify that document that I just handed to you,

which has been marked as Park Authority Exhibit 25.

A. It's a plat showing two alternate access

routes to the Atkinson family cemetery that the Park

Authority has agreed to offer.

ordered

routes

Q. Is that the one that you prepared or

to be prepared?

A. Yes.

Q. Can you tell us what the two access

are, just by name to begin with.

A. Well, this one here starts at Hillington

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1 Court and goes up to the cemetery at this point. This route

2 starts at Spring Branch Drive and traverses Park Authority

3 property to the cemetery this way.

4 Q. With respect to the Hillington Court

s access, can you describe, in terms of both the length and the

6 slope measurements, what that access comprises.

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A. This portion, starting at Hillington

Court up to this point, is about eight percent in grade, and

then it goes up a significantly steep portion, about forty-

five percent, and then it levels off to about five percent.

The total length is about 645 feet.

Q. Does it take a person directly to the

cemetery?

A. Yes.

Q. Does it cross entirely over park

property?

A. Yes.

Q. Can you also describe, in the same

manner, access route number two, which we will call Spring

Branch Drive access.

A. It starts down here. It starts out at

ten percent and goes to a fairly steep forty percent, then

goes to twenty-five percent, then ten percent, and levels out

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at about six, and then five percent. Then the last portion

2 up to the cemetery is about twenty percent. The total length

3 of that is about 1,800 feet.

4 Q. When you said it starts out down here,

s was that at Spring Branch Drive, the cul-de-sac on --

6 A. Right. There is Park Authority access

7 right to the cul-de-sac.

8 Q. Does that access route cover Park

9 Authority property in total?

10 A. Yes.

II Q. Are either of those routes -- is there a

12 trail over either one of those routes at this point?

13 A. Starting from Hillington, there is an

14 equestrian trial which was established back in 1984. We had

1 s to obtain an easement from Mr. Atkinson across the rear

16 portion of the cemetery, in between lot forty-two.

17 It came through this area and continued off down

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into the park. We have since closed that trail.

Q. Would the park be willing to reopen that

trail if that were an acceptable access route either to the

court or to Mr. Atkinson?

A. Yes.

Q. With respect to the Spring Branch access,

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I would the Park Authority be willing to make a trail from the

2 beginning of where Mr. Atkinson would enter, down at Spring

3 Branch Drive, around to the cemetery?

4 A. Yes.

s Q. Mr. Scott, can you tell us what type of

6 access the Park Authority is willing to provide Mr. Atkinson

7 in terms of time?

8 A. We would grant twenty-four-hour access.

9 Normal access to the general public is dawn to dusk.

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Q. What, if anything, is the Park Authority

willing to do with respect to the Atkinson family cemetery

itself?

A. We would offer to clear any --

MR. SNYDER: Objection, Your Honor. I

don't think it's really relevant as to what they are offering

to do with the cemetery. That may go towards settlement, but

it doesn't have anything to do with the alternate easements.

THE COURT: Well, they made a proffer.

Go ahead.

MS. SOULIER: Thank you.

THE WITNESS: We would offer to clear any

under story that he would desire removed, and then put up a

fence around the perimeter of the cemetery.

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BY MS. SOULIER:

Q. And then would you make sure that the

cemetery remained cleared after that time?

A. Yes.

Q. Mr. Scott, if you would just step back to

the witness stand briefly for one moment.

(The witness complied.)

BY MS. SOULIER:

Q. I show you a copy of the exhibit that is

already in evidence. I apologize, I don't know what number

it is. It shows where Mr. Atkinson's easement runs from the

family cemetery all the way through all of the lots that are

part of this suit and down to his property, which is at the

other end of the park land.

I would ask you to look at that and specifically

direct your attention to lot two, which is at the corner of

Spring Branch Drive and Bird Road. Have you had occasion to

visit that site?

A. Yes.

Q. At the time that you visited there, or

subsequent thereto, have you had occasion to determine what

the slope is up off of Bird Road on to lot two?

A. We determined it to be approximately

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I forty percent.

2 Q. Thank you.

3 MS. SOULIER: I don • t think I have

4 anything more, but please let me confer with counsel, Your

s Honor.

6 (Brief pause.)

7 MS. SOULIER: We don • t have anythi·ng

8 further, Your Honor. I would move Park Authority Exhibit 25

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into evidence, please.

CROSS-EXAMIRATIOR

BY MR. SNYDER:

Q. You have testified that a deputy director

of the Park Authority has given you authority to discuss

possible access to the cemetery through park land; is that

correct?

A. Yes.

Q. Do you know whether or not this deputy

director has the authority to convey interest in real

property owned by the county?

A. He would not be conveying interest.

Q. So you would not be granting an easement.

A. No.

Q. Now, these paths that you are talking

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1 about where you say you will allow access, as I understand

2 your testimony, both of these accesses include at least a

3 forty or more percent grade.

4 A. Yes.

s Q. Now, as I recall your testimony on August

6 20th, 1991, you testified at that time that the Virginia

7 Department of Transportation has a limit for grades for

8 roads, and that's ten percent; is that correct?

9 A. Correct.

10 Q. Is your intention, or what your authority

11 is, that you are going to level these grades to something

12 approximating ten percent?

13 A. It was not our intention to provide

14 vehicular access.

IS Q. Did you realize that the previous or the

16 existing easement did have vehicular access?

17 A. I could only assume.

18 Q. So what you are proposing would not be a

19 path that somebody could drive on.

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A. With a four-wheel drive they could.

Q. Up a forty-five degree grade?

A. Correct.

Q. You are not providing a four-wheel drive,


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are you?

2 A. No.

3 Q. Then I assume that this is not going to

4 be paved or graveled.

s A. Portions of it could be graveled.

6 Q. But not all of it.

7 A. Probably not.

8 MR. SNYDER: I have no further questions."

9 MS. SOULIER: I don't have any redirect,

10 Your Honor.

II THE COURT: Mr. Goodman, do you have any

12 questions?

13 MR. GOODMAN: No, Your Honor.

14 THE COURT: Thank you, sir.

IS (Witness excused.)

16 MR . GOODMAN : Your Honor, I have one

17 witness who is on his way. I don't know if he is here or

18 not.

19 THE COURT: We can take some time. We' 11

W take fifteen minutes.

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MR. GOODMAN: Thank you, Your Honor.

(A brief recess was taken.)

THE COURT: Call your witness, please.

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THOMAS REED - CROSS

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1 extent that I rationalized what the easement was worth to

2 each property. For instance, lot three just sold for

3 $620,000.

4 Q. My question is, have you performed an

s appraisal for any of these lots.

6 A. Not a written appraisal, but I have

7 formulated an appraisal of what those properties are worth.

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Q. How did you do that?

A. Well, lot eighteen j_ust sold for

$200,000, so you're talking about $200,000 lots and $600,000

houses.

Q. And that's based on one sale?

A. Lot twenty-two sold for $507,000.

Q. So you gave a value for all of the lots

that go through here based on two sales?

A. Well, I think three sales. The value of

having a lot sale and two house sales in that neighborhood

certainly puts you in the ball park of where you are on total

value.

Q. Well, let me ask you a question. If VDOT

had asked you to do this and you had to present them with a

value for the value of the easement, wouldn't it be part of

your normal course of ~usiness to perform an appraisal for

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easement. He is talking access. What Your Honor has ruled

2 here previously is that he has got an easement. The most

3 that they are willing to offer him is access, which is not an

4 interest in real property.

s That certainly cannot compare to what is

6 being taken away from him, and that's all they have done is

7 offered access. And the testimony is that on both of them

8 it's got a forty-five degree incline.

9 I'm sure Your Honor remembers the

10 heliocopter testimony. I don't think it's conceivable that

II anybody could use that.

12 MS. SOULIER: Your Honor, I'll address

13 that. It is true that what Mr. Scott has offered is twenty-

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four-hour access, and I don't deny that that is something

short -- however it may be a small amount of short -- of an

easement right.

I have explained to the Park Authority,

though, that this court may well have the power to impose

that access as an easement, and they will accept that if this

court does that.

What I was stating in the proffer, and

what Mr. Scott was stating on the stand, was they would

prefer not to have to grant an easement.

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I that contrary to Mr. Snyder's reading of the two cases that

2 the court cites in its brief regarding the alternative

3 access, those were not two existing easements in either of

4 these cases.

s One was an existing easement, and one was

6 something that somebody else had either decided to use or had

7 been agreed upon to offer to use. So those were not two

8 existing easements, and the court there determined that one

9 of those two existing easements had to be chosen.

10 One was an existing easement; one was, at

11 least in the Clark case, an existing route by which the

12 Clarks had been going over for what I believe was between

13 1937 and 1952. That doesn't arise to a prescriptive right,

14 and therefore that was just a route of access that everybody

IS had been using to get to those back properties.

16 Mr. Snyder has insisted that those were

17 two easements in both of those cases. I disagree that they

18 were, and I also feel that I have addressed the issue of

19 whether or not the Park Authority wants it to be access

ro versus an easement.

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The other issue is, of course, the

grades. Again, the Park Authority will do what the court

orders it to do.

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I He didn't even know there was a dedicated

2 easement for lot seven. It's Wexford No. 32, which went in

3 today. It's there. You know, lot number seven has not done

4 anything to impede this easement.

s Thank you, Your Honor.

6 MS. SOULIER: Your Honor, the Park

7 Authority has had a relatively small part in this case, and

8 I ·will try to keep my remarks fairly brief as a result.

9 In light of the court's decision that

10 there does exist the easement that Mr. Atkinson has

11 claimed -- he has had all this time -- and in light of the

12 court's request regarding alternative easements and the

13 evidence on the monetary value of the easement, the Park

14 Authority comes before the court today and presents the two

IS access routes that it presented.

16 I realize that they involve steep slopes.

17 I realize that they do not rise to the level, as offered, to

18 an easement. If the court so decides that there will be

19 easements there, the Park Authority will deal with that.

20 And I would say that if the court orders

21 that it be graded so that the slope is different, then we'll

22 deal with that. I will say this. It appears that if we

23 would just use Mr. Atkinson's existing easement, from the

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7. lr-ief f'ftUie of teor pe~. ep:eialisots. lind lndivicbLl a~n~SU\t.m: .. wwticir-ted for 'thiE project.

a. ~&. fitloe: Hern&l L.. Co..~rscn, L.S., Vice J:-e-s: i6ent., Survey$

b. Jlrojtct A$si..-nt: Prin:ipet Surveyor

~. 11-.e vf FiN wi tb "';"" ossochted: Sprt:"'gfi etd Eng~re!rin9 t1)rporltiOt"·, P .c.

d. 'fears experience-: 'litt; This Fila:~ \iith Other li,...;:_z_

e. f!cb:&tion: Deg~(s)/Y~aT/~\ali~ation

~~0!1tt \.led,;ogtor. .tniv~rsity · !~46 Civil er.gineering

f. Act i¥e lleg istrfltia1: Yeiar fSnt Registered,/biscipltnc

licensed la~ Sur~yor, 19St

g. Otf\a' E'~rience end Oual ifica~iOt'$ -relevant to tete pragos.eQ project:

Mr-. COLrscn has over 47 years d experience in a\l facets of lend surveyirg and has betn the respa1sible pr incip&l for aU Spr-i~field EngiMering Corporation, P.C. land surv~yir'lg services in Virginia, Karylane, Dnd the Oistrict of Cot~ia. Hi• ~xperience ~ratlels that of the f ir•, ad'lien has ceech4!'d all lspeds of surveying frcm geodetic to engineering c:onstructton surnys. Rec:enUy c:Ml)leted e se:ond five year term as a Land Surveycr Melber of ~e Virginia St•te Board of Architects,. Pro#essior.al Engineers, tand ;urveyors end tertl'fied Landscepe Arch i te-:ts.

Specifi: experience in:h.des bould.u·y surveys, physical •s·bui\ t survoe-ys, toposr-a:-nic mapeing, ~eriel ~ontr-»\ end cof\struc-:im SJrveys for major ul"ban ct:~elopraent. tlighvay route lf'd desi~n 4Surwys, tridge eUs~nt, public: recreational fgi lities, ~·ac;e/water/gas transaissfon syste~n&, flood iiiSurene~ certiflcetiM\, e0'"1detmat ion surv~rs, ~/h}'drogrephic layou~~ public and p-ivate airp<rt fdeitities, mass transh/railroad networkl, defo~mationand disp~ac~nt surveys.

"ajor Projects ln:1~:

o TopoJre~ic, utility, design n:i c:«lStru::t ion surveys fer Hech;nger ttee6quarter~ facility in lendoter. Maryland; tteehin!el" \larehous~ and OistrU, • .JtiCin Center in 1\rdw!ct, ttary\ard; tvo Bell Atlantic Kobile Svitd\;ng FecH it ies in AdetFflt ard ta' t i~rere,. kary a."'Jd; and the C&P Telcph~ Facilit1 in 8alti~~. Maryland.

Myeor, ~ to s~rt iq,ro"ement ;:~rojects at Ar\ ingt«t Cetne!'te1y ;n ArL itlgton., Vireinia ..

o Fairfax County Vet•r Authority SUrveys, Jairfa~ County., Virginfl 1. Surv~ end p\ats fer Reston ~Uifl StetiwStor~ge Jet'k end

Penderwood Stcrege lank Sites. 2 • ICUldarv. toposrapn i c end st ekeout s~rv~y:. ~ tud i es for road

access and sft~.~lans for Potomsc River ~lan,. 3. Corc:;,t!'uct ion stal(.e-out cf .. ater Nim in reiriex <-:o-.r"'trtt Club

vi~A). Reston {at~g Rt. 602 corridor) • .e. Pr~rty surveys for lend AC41isi~icr. e~ tcpagratlhic surve)S tor

design o~ O:c~~ Water Feciiities. S. Cor;struction stakeout for Occoqua" Wdt~r P!ant. 6. rropeny, tepo;:-aptd~ and ctesi{zn survevs, .~ plats fer 15

separate ~aterti~ ~oje=ts thr~-hc~t fairiax C~ty.

o i~ry, ph)·s.kol surveys and ';aking plat~ for Dut les .l.irporr and l.irport A'cess ~6ad ~orrpassins over 1.;,000 eeres. tQP09rspnfc surveys for the design of the 'Dulles A,;rport Jlorth Service e~ s~bstation i~ Chantil\y, v;rginie.

o 8~ary and construction syrv~ys fer 7,000 ecr~ of the P.cstor P.PC. lnct\decl ell sta~~t for R4tston To-me Ccr.ter wtai:h ccnsists d tvo office buildings, hotel, a retaiL mell end two parking garag~.

o Sur~ and inventory of alt ~tility locations at Mational Ai~pcrt ;n preparation for c:i~~isn of Airport e~pai'\Sion. f.orovided topographic survl:!ys for main t\1\Way resurfacing end rohab1 l i tat ion of £mer~e~y R~scue/Fire Department eree. Al!o provided ttorizontat end vertical control surv~ys for 7CO (+/•) acre Kationet Airport on three S1!1\21:-atc occasions since t970.

o Nul t iple de-sign sut"veys for ~TA \r1Cluding defoi"''Mtion ~urvf)--s of ~HoiN.}s adjacent to ~AlA fa:H ities. ttydrograph1~ surve,· <~f the ~•TA cros~ing of the Anacosti~ River end the propo~ed Three s s~ers lr,dge over th! Pot~~e liver.

a Hut tipl-e bc~ary, topogra~•e, ard cor.trot su:-veys for U.Vf"C facilhiea ft~ Henderson Helt; Midway Research C~nur, ard lnstrcr:tion 6uilding, at Quanttc~; 11nd niM- D~fense CEETA projeetS et fort Bet voir, Virginia; multip~e proje~u at 8oll ins field A~B ard tne u.s. Neva( Ae~ in Marytc~.

o Multiple topotrephic, .boundary end utilhy surveys for WOt trder e open el1d ccntrect. Provided design surveys for l·64 (1' liiltS) in NorfoLk, Virginia; l-64 MOV lanes in Morfolt; and upg~ading of t·395 from Springfield to the P~nte~on, Virginia.

~

0 ~

)

)

1-4-~~1'-v~Hi:~ and OS"'buH~ survey of 34S a:rc So(die-r•s. ~ in o C<lnftrsion of R.(lf logers to HirJees. IIOFJ: InclUde<! t(;TA. es·built end Nnid,in;blf\. A.t.; acu surveya f~,a--r-&~f-b:ilr.,dsv:n.------

other land tt t\e surveys ftr 57 shes in Virtinia, Maryland, . I throughout o.c. ~~~euopol ftQtt area alit fl rotnla, tcpogr.,fe sur e,"' Was~ington., D.c. 1nd lorth terot~na.. for entranct vates tc SDithsoni.n Institution In ~eshington, t.c.

o 8~:-y sur~y f•r 1h~ Pent~on RHer~atlon, topOtNrpfllc, utft~tt.r,rr;.:---11'-----------------------------------. · ~ ~·-~--..... : ..... ...... _."" 4,.r Phv~icat Fitnes Cent-e;o at ft.

Education:

OUALIPICATIONS

THOMAS B. RBBD

College - Hampden Sydney College, Hampden Sydney, Virginia; strayer Business College, Washington, D.C.

Real Estate Courses:

Experience:

Economics - Hampden Sydney College Real Estate Appraisal 1 - American University Advanced Studies in Real Property Acquisition, Saratoga, New York Professional Practice - Portland, Maine Valuation Procedures - Arizona State University Capitalization Theory - University of Georgia

1956-1962 - Mr. Reed became engaged in the real estate appraisal profession in 1956 when he was employed by the county of Fairfax as a real estate appraiser for assessment purposes. The position required the appraisal of all types of property as well as related office work and the hearing of grievances brought forth by taxpayers.

1962-1965 - In June of 1962, Mr. Reed accepted employment with the firm of Beasley & Beasley, Valuation Engineers, Washington, D.C. During this time, he valued millions of dollars worth of real estate for various purposes in many parts of the country.

1965-Present - Operating as an independent fee appraiser, Mr. Reed presently has offices at 4031 Chain Bridge Road, suite 301, Fairfax, Virginia. He has been privately engaged in the appraisal of real property for the past 26 years and during this time, he has served the following clients:

Local Agencies and Jurisdictions:

1. County of Fairfax 2. county of Fairfax Park Authority 3. County of Fairfax School Board 4. County of Fairfax Department of Housing s. County of Fairfax Water Authority 6. City of Fairfax 7. county of Arlington 8. Town of Herndon 9. Town of Vienna 10. City of Falls Church 11. Town of Manassas Park 12. County of Loudoun

13. County of Prince William 14. County of Prince William School Board 15. City of Alexandria 16. Reston Land 17. Town of Middleburg

Federal and District Agencies:

1. Internal Revenue Service 2. National Capital Housing Authority 3. General Services Administration 4. u.s. Corps of Army Engineers s. Housing & Urban Development 6. National Park Service 7. D.C. Redevelopment Land Agency 8. Washington Gas Light Company

State and Regional Agencies:

1. Virginia State Highway Department 2. Virginia Power 3. Virginia State Commission of Game & Inland Fisheries 4. Northern Virginia Regional Park Authority 5. Upper Occoquan Sewer Authority 5. Colonial Pipeline 6. Media General Cable TV

l Regular clients also include local banks, attorneys, and development companies. Appraisals are made on a periodic basis for ¢ommercial and industrial users wishing to either buy or sell J~roperty in Northern Virginia. In 1978, Mr. Reed was appointed to ~he Board of Assessors of Arlington County to study the valuation $>rocedures of the Assessment Office in that jurisdiction. Between 1964 and 1974, he was Contract Assessor of Fairfax City.

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[ Mr. Reed has appraised railroad·lands owned by the Chesapeake & Ohio Railroad Company, the Baltimore & Ohio Railroad Company, and '~he Union Pacific Railroad. He also participated in the review of ;t,he right-of-way acquisition program of the state of New York !pepartment of Public Works, and the New Jersey State Highway Department.

Mr. Reed has appraised real estate in seven states plus the istrict of Columbia. He has qualified as an expert witness on eal estate values in the Circuit Courts of Fairfax County, Prince illiam County, Loudoun County, Stafford County, Frederick County,

:~nd Shenandoah County, Virginia, plus Montgomery County, Maryland. ~e has also qualified in Federal Court in Alexandria, Virginia, ~ankruptcy Court in Alexandria, Virginia, plus City Court in ~lexandria. In addition, he has testified before an examiner of rhe Securities Exchange Commission.

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Licenses and Affiliations:

Certified General Real Estate Appraiser, State of Virginia Real Estate Broker - Certificate 9648 Right-of-Way Association - Senior - SRWA American Association of Certified Appraisers - Senior (Member Appraisal Foundation) National Association of Review Appraisers - Senior Virginia Association of Assessing Officers - Associate

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ol - washington and lee university

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