CHAPTER 403

AN ACT to repeal Article 6 of Chapter 1 of Title 33 of the Code of
1950 consisting of 6 sections and amend the Code of 1950 by
adding three Articles numbered 6.1, 6.2 and 6.3 in Chapter 1 of
Title 33, such Article consisting of a total of 17 sections, the
repealed and added Articles and sections relating to abandon-
ments of certain roads; and to validate certain abandonments.
Be it enacted by the General Assembly of Virginia:
1. That Article 6 of Chapter 1 of Title 33 of the Code of 1950
consisting of six sections numbered 33-76 through 33-81 is repealed.
2. That the Code of 1950 be amended by adding three Articles in
Chapter 1 of Title 33, numbered 6.1, 6.2 and 6.3, consisting of
seventeen sections numbered 33-76.1 through 33-76.17 as follows:

ARTICLE 6.1

§ 33-76.1. In any case in which a section of a road is deemed
by the Commissioner no longer necessary for the uses of the State
Highway System or when in heretofore or hereafter laying out,
constructing or maintaining sections of roads in the State High-
way System, a part of a road has been or is straightened or the
location of a part thereof altered and a section of the road is
deemed by the Commissioner no longer necessary for the uses of
the State Highway System, or an existing crossing by such road
of the lines of a railway company, or a crossing by the lines of a
railway company of such road is deemed by the Commissioner no
longer necessary as a part of the State Highway System, the
Commissioner by and with the approval of the State Highway
Commission, may discontinue as a part of the State Highway Sys-
tem the section of the road no longer deemed necessary for the
uses of the State Highway System, or such crossing by the road of
the lines of a railway company, or crossing by the lines of the
railway company of the road, as the case may be, but discontinu-
ance under this section shall not operate as an abandonment of
such road as a public road unless the procedure thereon conforms
to § 33-76.2.

The opening of the new section of road by the Commissioner
and the entry by the State Highway Commission upon its minutes
of the discontinuance of the section of the road or the railroad
crossing, as the case may be, and its approval thereof, shall be
sufficient to constitute such discontinuance. Upon abandonment as
herein provided the Commissioner may convey same in accordance
with the provisions of § 33-76.6.

§ 33-76.2. The Commissioner on his own motion or on peti-
tion of any interested landowner may also cause any section of
a road of the State Highway System, or any crossing by such road
of the lines of a railway company, or crossing by the lines of a
railway company of such road, to be abandoned altogether as a
public road or as a public crossing, as the case may be, by comply-
ing substantially with the following procedure:

The Commissioner or any interested landowner may file appli-
cation with the State Highway Commission, setting out the sec-
tion of the road or the crossing sought to be abandoned as a public
road. The State Highway Commission, upon the filing of such
application, shall give notice thereof by (a) posting a notice of
such application at least three days before the first day of a regu-
lar term of the circuit court, at the front door of the courthouse
of the county in which the section of the road or crossing sought
to be abandoned as a public road or crossing is located, or if it be
partly in two or more counties, at the front door of the courthouse
of each of such counties, or (b) by publication in two or more is-
sues of some newspaper published in the county, or one of them,
and shall also mail by registered mail a notice of the application
to the board of supervisors or other governing body of the county
or counties. If such road or crossing be in a town of thirty-five
hundred population or less, notice shall be given to the governing
body of the town in the same manner as notice is required to be
given to the governing body of the county in which the town is
located.

Upon petition of one or more landowners in the county or
counties, affected by such proposed abandonment, or of the board
of supervisors or other governing body of either of such counties,
or upon petition of the governing body of any such town in which
the road or crossing is located, filed with the State Highway Com-
mission within thirty days after notice is posted or published and
mailed as aforesaid, but not thereafter, the State Highway Com-
mission or a representative thereof shall hold a public hearing in
one of the counties for the consideration of the application and
shall give notice of the time and place of the hearing by at least
two publications thereof in some newspaper published in the
county, or one of them, or having general circulation therein and
also mail notice of the hearing to the board of supervisors or other
governing body of the county or counties and to the town council
of the town in which the road is located.

If a petition be not filed as aforesaid for a public hearing,
or if after public hearing is held the State Highway Commission,
or a majority thereof, is satisfied that no public necessity exists for
the continuance of the section of road as a public road, or the
crossing as a public crossing, or that the welfare of the public
would be served best by abandoning the section of road or the
crossing, as a public road or crossing, it may enter an order on
its minutes abandoning the section of road as a public road or the
crossing as a public crossing, and thereupon the section of road
shall cease to be a public road, unless taken over by the board of
supervisors or other governing body or local road authorities as
hereinafter provided, or the crossing shall cease to be a public
crossing; or if the Commission be not so satisfied it may enter an
order dismissing the application.

§ 33-76.3. Effect of such abandonment.—In case of the aban-
donment of any section of road or any railroad crossing under the
provisions of this article as a part of the State Highway Svstem,
such section of road or such crossing, shal] not thereafter be a
public road or crossing as the case may be, unless conveyed to the
county or town and subject to the authority of the board of
supervisors or other governing body or other local road authorities,
or town council, as provided by law. In case of proceedings for
the abandonment of any section of road, not including a railroad
crossing situated less than one and one-half miles from another
public crossing over the same railroad, as a public road, under the
provisions of this article, the board of supervisors or other govern-
ing body or the local road authorities, as the case may be, in so
far as such section of road is located within the county of such
board of supervisors or local road authorities, shall have authority
to take over such section of road, not including the railroad
crossing, and maintain it as a public road, as provided by law;
provided, however, the board of supervisors or other governing
body or local road authorities, as the case may be, shall have
entered an order or resolution to that effect upon its minutes and
shall have given notice thereof to the Commissioner within thirty
days from the posting or publishing and the mailing of the notice
of the application for the abandonment of such section of road as
a public road, as hereinbefore provided.

§ 33-76.4. Appeal to circuit court——Any one or more of the
petitioners, or the board of supervisors or other governing body of
any county or town council of the town in which the section of
road or the crossing is wholly or partly located, or the Commis-
sioner may Within thirty days from the entry of the order by the
State Highway Commission, but not afterwards, appeal from the
order to the circuit court of the county in which the section of
road or the crossing, or the major portion thereof, sought to be
abandoned, under § 33-76.2, is located. Such appeal shall be by
petition filed in the clerk’s office of such court, setting out the
order appealed from and the grounds of such appeal. Upon the
filing of such petition, the clerk of the circuit court shall docket
the appeal and if the appeal be by any of the landowners who
filed a petition with the State Highway Commission for a public
hearing shall have notice of such appeal served upon the Common-
wealth’s attorney and the ,Commissioner and if the appeal be by
the board of supervisors or other governing body or Commissioner
notice thereof shall be served upon the landowners who filed peti-
tion with the State Highway Commission for a public hearing. No
such appeal shall be tried by the court within ten days after notice
is given, as hereinabove provided, unless such notice be waived.
The circuit court shall hear the matter de novo with further right
of appeal as provided by the general law. Upon the hearing of the
appeal, the court shall ascertain and by its order determine
whether public necessity exists for the continuance of the section
of road or the crossing as a public read or crossing, or whether
the welfare of the public will be served best by abandoning the
section of the road or the said crossing as a public road or cross-
ing and shall enter its order accordingly. The clerk of the court
shall certify a copy of the order of the court to the State Highway
Commission. |

Upon any such appeal, if it shall appear to the court that by
the abandonment of such section of road or such crossing as a
public road or crossing any party to such appeal would be de-
prived of access to a public road, the court may cause the railway
company and the board of supervisors or other governing body, or
either, to be made parties to the proceedings, if not already parties,
and may enter such orders as seem to it just and proper for keep-
ing open such section of road or such crossing for the benefit of
such party or parties as would by such abandonment be deprived
of access to a public road. The provisions of this section shall not
apply to any discontinuance of a portion of the State Highway
System under § 33-76.1.

§ 33-76.5. Alternative procedure for abandonment.—When
any road in the State Highway System has been or is altered and
a new road, which serves the same citizens as the old road, is con-
structed in lieu thereof and approved by the State Highway Com-
missioner, the old road may be abandoned to the extent of such
alteration, but no further, by a resolution of the State Highway
Commission declaring the old road abandoned to the extent of
such alteration.

§ 33-76.6. Conveying sections of roads or other property no
longer necessary.—When in heretofore or hereafter laying out,
constructing or maintaining sections of the roads in the State
Highway System, a part of the road has been or is proposed to be
straightened or the location of a.part thereof altered and a sec-
tion of the road or other property is deemed by the Commissioner
no longer necessary for the uses of the State Highway System, or
other property or a portion thereof acquired for highway purposes
or incidental thereto is not required therefor, the Commissioner
shall so certify in writing, to the State Highway Commission such
facts, and it may authorize the Commissioner to execute, in the
name of the Commonwealth, a deed or deeds conveying such sec-
tions, or other property incidental thereto, either for a considera-
tion or in exchange for other lands that may be necessary for the
uses Of the State Highway System. But before any such deed
either for the sale or exchange of land is executed conveying any
section of a highway or other property incidental thereto upon or
along which any person or persons reside, notice shall be given by
the Commissioner to the governing body of the county and town
and to the owner or owners of the land upon which such person
or persons reside of the intention to convey the section of road
and if, after a reasonable notice of such intention, any such land-
owner or governing body so requests a hearing shall be ordered by
the Commissioner as now provided by law. If, upon such hearing,
it is made to appear that such section of road, or such other prop-
erty incidental thereto, should be kept open or retained for the
reasonable convenience of such landowner, or the public then such
section of road, or other property incidental thereto, shall not be
conveyed. But no hearing shall be held if such road was abandoned
under § 33-76.2.

Any such conveyance shall have the approval of the Commis-
sion by resolution recorded in the minutes of a meeting of the
Commission.

ARTICLE 6.2

§ 33-76.7. On petition of the governing body of any county
in which a road or crossing ig located or upon petition of the town
council of a town having a population of thirty-five hundred or
less, or on its own motion the Commission may discontinue any
road or crossing in the secondary system as a part thereof in any
case in which the Commission deems such road or crossing not
required for public convenience. If the Commission on its own
motion desires to discontinue any such road or crossing, notice
shall be given the governing body of the county and town at least
thirty days prior to any discontinuance of a road or crossing under
this section. If the governing body of any county or town re-
quests the same the Commission, or a representative thereof, shall
hold a hearing in the county in which the road or crossing is
located in order to ascertain whether or not such road or crossing
should be discontinued. From the finding of the Commission an
appeal shall lie to the circuit court of the county in which such
road or crossing is located and the procedure thereon shall con-
form to the procedure prescribed in § 33-76.4. The jurisdiction
and procedure for abandonment of roads discontinued as parts of
the secondary system in accordance with this Article shall remain
in the local road authorities.

§ 33-76.8. The governing body of any county on its own mo-
tion or upon petition of any interested landowner may cause any
section of the secondary system of highways or any crossing by the
road of the lines of a railway company, or crossing by the lines
of a railway company of the road, deemed by it to be no longer
necessary for the uses of the secondary system of highways, to be
abandoned altogether as a public road or as a public crossing, as
the case may be, by complying substantially with the following
procedure:

The governing body of the county shall give notice of inten-
tion to abandon any such road or crossing by (a) posting a notice
of such application at least three days before the first day of a
regular term of the circuit court, at the front door of the court-
house of the county in which the section of the road or crossing
sought to be abandoned as a public road or crossing is located,
or (b) by posting notice in at least three places on and along the
road or crossing sought to be abandoned for at least thirty days,
and, in either case, by publication in two or more issues of some
newspaper having general circulation in the county, and the
governing body shall also give notice of its intention to abandon
such road or crossing to the State Highway Commission or the
Commissioner thereof. In any case in which the road or crossing
proposed to be abandoned lies in two or more counties the govern-
ing bodies concerned shall not abandon such road or crossing un-
less and until the governing bodies of the other county or counties
in which such road or crossing is located agree thereto; the pro-
cedure in such cases shall conform mutatis mutandis to the pro-
cedure prescribed for the abandonment of a road or crossing lo-
cated entirely within a county.

Upon petition of one or more landowners in the county af-
fected by such proposed abandonment or of the State Highway
Commission filed with the governing body of the county within
thirty days after notice is posted and published as aforesaid, but
not thereafter, the governing body shall hold a public hearing on
the proposed abandonment and shall give notice of the time and
place of the hearing by at least two publications thereof in some
newspaper having general circulation in the county and shall also
give notice to the State Highway Commission thereof.

If a petition be not filed as aforesaid for a public hearing, or
if after a public hearing is held the governing body is satisfied
that no public necessity exists for the continuance of the section
of the secondary road as a public road, or the crossing as a
publie crossing, or that the welfare of the public would be served
best by abandoning the section of road or the crossing, as a public
road or crossing, it may enter an order on its minutes abandon-
ing the section of road as a public road or the crossing as a public
crossing, and thereupon the section of road shall cease to be a
public road, or if the governing body be not so satisfied it mav
dismiss the application.

Any one or more of the petitioners, or the State Highway
Commission may within thirty days from the entry of the order
by the governing body, but not afterwards, appeal from the order
to the circuit court of the county in which the section of road or
the crossing sought to be abandoned is located. Such appeal shall
be by petition filed in the clerk’s office of such court, setting out
the order appealed from and the grounds of such appeal. Upon
the filing of such petition, the clerk of the circuit court shall doc-
ket the appeal and if the appeal be by any of the landowners who
filed a petition with the governing body for a public hearing shall
have notice of such appeal served upon the Commonwealth’s at-
torney and the Commissioner and if the appeal be by the Commis-
sioner notice therevf shall be served upon the governing body of
the county and landowners who filed petition with the governing
body for a public hearing. No such appeal shall be tried by the
court Within ten days after notice is given, as hereinabove pro-
vided, unless such notice be waived. The circuit court shall hear
the matter de novo with further right of appeal as provided by the
general law. Upon the hearing of the appeal, the court shall ascer-
tain and by its order determine whether public necessity exists for
the continuance of the section of road or the crossing as a public
road or crossing, or whether the welfare of the public will be
served best by abandoning the section of the road or the said
crossing as a public road or crossing and shall enter its order
accordingly.

Upon any such appeal, if it shall appear to the court that by
the abandonment of such section of road or such crossing as a
public road or crossing any party to such appeal would be de-
prived of access to a public road, the court may cause the railway
company and the governing body, or either, to be made parties
tu the proceedings, if not already parties, and may enter such
orders as seem to it just and proper for keeping open such section
of road or such crossing for the benefit of such party or parties as
would by such abandonment be deprived of access to a public road.

In case of the abandonment of any section of road or any
crossing ulder the provisions of this article as a part of the
Secondary System of Highways, such section of road or such cross-
ing, shall not remain a public road or crossing.

Whenever a secondary road has been abandoned in accordance
with the provisions of this section, or in accordance with § 33-76.9,
and its use is no longer deemed necessary by the Commissioner, the
Commissioner shall so certify, in writing, to the State Highway
Commission, and governing body of the county in which such road
is located, such facts, and the governing body or the Commission
shall thereupon be authorized to execute, in the name of the Com-
monwealth or the county, as the case may be, a deed or deeds con-
veying such sections, either for a consideration or in exchange for
other lands that may be necessary for the uses of the Secondary
System. But before any such deed either for the sale or exchange
of land is executed conveying any section of a road upon or along
which any person or persons reside, notice shall be given by the
Commissioner or the governing body of the county, as the case
may be, and to the owner or owners of the land upon which such
person or persons reside of the intention to convey the section of
road and if, after a reasonable notice of such intention, any such
landowner so requests a hearing shall be ordered by the Commis-
sioner or governing body, as the case may be, as now provided by
law. If. upon such hearing, it is made to appear that such section
of road should be kept open for the reasonable convenience of such
landowner, or the public, then such section of road shall not be
conveyed.

Any such conveyance by the Commissioner shall have the
approval of the Commission by resolution recorded in the minutes
of a meeting of the Commission. Any such conveyance by the
governing body of a county shall not be subject to § 15-692.

§ 33-76.9. Alternative procedure for abandonment.—When
any road in the Secondary System has been or is altered and a
new road, which serves the same citizens as the old road ig con-
structed in lieu thereof and approved by the State Highway Com-
missioner, the old road may be abandoned to the extent of such
alteration, but no further, by a resolution of the board of super-
visors or Other governing body of the county, declaring the old
road abandoned to the extent of such alteration.

ARTICLE 6.3

§ 33-76.10. The provisions of this article shall apply mutatis
mutandis to county roads maintained by a county and not part
of the Secondary System, and to roads dedicated to the public but
which are not parts of the State Highway System, or the Second-
ary Highway System. The term road shall include streets and
alleys in case of dedication to the public and shall likewise include
an existing crossing by the lines of a railway company of such
road and a crossing by such road of the lines of a railway com-

any.

§ 33-76.11. Abandonment of certain roads.—When in here-
tofore or hereafter laying out, constructing or maintaining sec-
tions of roads, a part of a road has been or is straightened or the
location of a part thereof altered and a section of the road is
deemed by the governing body of the county hereinafter in this
article referred to as governing body no longer necessary for public
use, Or an existing crossing by such road of the lines of a railway
company, or a crossing by the lines of a railway company of such
road is deemed by such governing body no longer necessary for
public use, the governing body by proceeding as hereinafter pre-
scribed may abandon the section of the road no longer deemed
necessary for public use, or such crossing by the road of the lines
of a railway company, or crossing by the lines of the railway com-
pany of the road, as the case may be.

§ 33-76.12. In case of a proposed abandonment of a road re-
ferred to in this article, the governing body shall give at least
thirty days notice of intention so to do by posting notice at the
front door of the courthouse, by posting notices on at least three
places along and on the road proposed to be abandoned, and by
publication of intention so to do at least twice in a newspaper
having general circulation in the county. All such notices shall
state the time and place at which the governing body will meet
to consider the abandonment of such road.

§ 33-76.13. Any person desiring to have any such road aban-
doned may petition the governing body therefor and shall file with
it and in the clerk’s office of the county a reasonably accurate plat
and description of the section to be abandoned. The governing
body may then proceed to have such road abandoned as above
provided but the expenses thereof shall be borne by the petitioner.

§ 33-76.14. Upon petition of one or more landowners in the
county affected by such proposed abandonment filed with the
governing body within thirty days after notice is posted and pub-
lished, as aforesaid, but not thereafter, the governing body shall
hold a public hearing in the county for the consideration of the
proposal.

If a petition be not filed as aforesaid for a public hearing, or
if after a public hearing is held, the governing body is satisfied
that no public necessity exists for the continuance of the section
of road as a public road, or the crossing as a public crossing, or
that the welfare of the public would be served best by abandoning
the section of road or the crossing, as a public road or crossing, it
may enter an order on its minutes abandoning the section of road
as a public road or the crossing as a public crossing, and there-
upon the section of road shall cease to be a public road or if the
governing body be not so satisfied it may enter an order dismissing
the application.

Any one or more of the petitioners or the governing body,
within thirty days from the entry of the action of the governing
body on the proposal but not afterwards, may appeal from the
action of the governing body to the circuit court of the county.
Such appeal shall be by petition filed in the clerk’s office of such
court, setting out the action appealed from and the grounds for
appeal. Upon the filing of such petition, the clerk of the circuit
court shall docket the appeal and if the appeal be by any of the
landowners who filed a petition with the governing body for a
public hearing shall have notice of such appeal served upon the
Commonwealth’s attorney and the governing body. No such ap-
peal shall be tried by the court within ten days after notice is
given, as hereinabove provided, unless such notice be waived. The
circuit court shall hear the matter de novo with further right of
appeal as provided by the general law. The court may appoint
viewers to make such investigation and findings ag the court re-
quires of them. Upon the hearing of the appeal, the court shall
ascertain and by its order determine whether public necessity
exists for the continuance of the section of road or the crossing
as a public road or crossing, or whether the welfare of the public
will be served best by abandoning the section of the road or the
crossing as a public road or crossing and shall enter its order
accordingly.

Upon any such appeal, if it shall appear to the court that by
the abandonment of such section of road or such crossing as a
public road or crossing any party to such appeal would be de-
prived of access to a public road, the court may cause the railway
company and the governing body, or either, to be made parties to
the proceedings, if not already parties, and may enter such orders
as seem to it just and proper for keeping open such section of
road or such crossing for the benefit of such party or parties as
would by such abandonment be deprived of access to a public road.

§ 33-76.15. Effect of abandonment.—In case of the abandon-
ment of any section of road or any railroad crossing under the
provisions of this article, such section of road or such crossing,
shall cease to be a public road or crossing as the case may be.

§ 33-76.16. Alternative procedure for abandonment.—When
any road has been or is altered and a new road, which serves the
same citizens as the old road, is constructed in lieu thereof and
approved by the governing body, the old road may be abandoned
to the extent of such alteration, but no further, by a resolution of
the board of supervisors or other governing body of the county,
declaring the old road abandoned to the extent of such alteration.

§ 33-76.17. Conveying sections of roads or other property no

longer necessary.—When any road abandoned as above provided
is deemed by the governing body no longer necessary for the pub-
lic use, it shall so certify such facts upon its minutes and it may
authorize the sale and conveyance in the name of the county, a
deed or deeds conveying such sections, either for a consideration
or in exchange for other lands that may be necessary for the uses
of the county. But before any such deed either for the sale or ex-
change of land is executed conveying any section of a road upon
or along which any person or persons reside, notice shall be given
by the governing body to the owner or owners of the land upon
which such person or persons reside of the intention to convey the
section of road and if, after a reasonable notice of such intention,
any such landowner requests, a hearing shall be ordered by the
governing body. If, upon such hearing, it is made to appear that
such section of road should be kept open for the reasonable con-
venience of such landowner, or the public, then such section of
road shall not be conveyed. The action of the governing body
under this section shall not be subject to § 15-692.
3. <All abandonments of road heretofore sought to be effected
are hereby validated notwithstanding any defects or deficiencies
in the proceedings provided the rights of third parties have not
intervened.
4. None of the provisions of Articles 6.1, 6.2 and 6.3 hereby added
to the Code of 1950 shall affect the provisions of Chapter 23 of
Title 15 of the Code of 1950.