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County attorney: Deed doesn't restrict county's use of property

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By John Barnhart

According to County Attorney Carl Boggess, the deed by which Bedford County acquired 283 acres of land on what today is Falling Creek Road does not restrict how the county may use the land.

Bedford County originally purchased the tract from James and Susannah Jopling in 1832 for the purpose of building a poor house. A poorhouse existed there until the middle of the the 20th century. The Bedford County Nursing Home is there today and the Sheriff's Office, the PSA office and Falling Creek Park occupy other portions of the tract.

During the board of supervisors' May 11 meeting, Ruby Wells Dooley spoke before the board claiming that the deed permanently restricted the county to using the land for a poorhouse and work house. Dooley focused on a section that stated that the land was acquired "whereon to erect the said poor house and work house forever." Dooley also claimed that the land had been obtained and restricted to that use by a judicial order.

Boggess wrote a legal opinion for the supervisors and released it to the public on May 28. The land, Boggess notes, belongs to Bedford County and the county can use it for any public purpose. Like any other landowner, the county can also sell the land.

The language to which Dooley referred is in the deed's Habendum Clause. Boggess said that this is a clause that is rarely found in modern deeds. The word "forever" was placed in this clause to make it clear that this was a "fee simple" conveyance of the property.

According to Boggess there were several kinds of property conveyances during colonial times, including one called a "fee tail." He wrote, in his opinion, that a "fee tail" conveyance was somewhat like what we would call a "life estate with remainder." This, he explained in a phone conversation, means that some portion of the property is conveyed to another person other than the purchaser named in the deed.

A "fee simple" conveyance was the type that are typical in modern deeds, that is the seller is conveying the entire property, retaining no interest in it, or transferring no interest to a third party. "Forever," rather than limiting the use of the property, means that the entire property, without limits or encumbrances, was transferred to Bedford County.

Boggess also noted that the deed was not part of a court action. The court merely appointed three commissioners to act as agents for locating and negotiating the purchase of a site suitable for a poorhouse. They reported their findings back to the justices of the peace.

Back in 1832, Boggess wrote, the county did not have a separate arm of government that handled legislative or administrative functions. There was no board of supervisors or county administrator. The sheriff handled some county-wide administrative functions. The rest were handled at the magisterial district level. The justices of the peace, named in the deed, were acting in an executive capacity, as today's board of supervisors would, rather than in a judicial capacity.