Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan,
Koontz, JJ., and Poff, Senior Justice
ADAMS OUTDOOR ADVERTISING
Record No. 960944
OPINION BY JUSTICE ELIZABETH B. LACY
February 28, 1997
ROBERT E. LONG
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
This case involves competing claims to ownership of a
billboard located in the City of Hampton on land owned by
Robert E. Long and leased to Adams Outdoor Advertising Limited
On October 6, 1993, Long notified Adams
that he was terminating the lease.
Adams accepted the
cancellation, effective November 5, 1993, and told Long that it
would have electrical service disconnected and would schedule
the demolition of the billboard for the first week of November.
Long wanted to use the billboard to advertise his own business
and filed this action to enjoin Adams from demolishing or
removing the billboard.
Long's request for relief was based on
his claim that the billboard was affixed to and part of the
land and, therefore, he, as landowner, owned the billboard.
Adams filed a separate bill of complaint asserting that the
leases entered into over the years provided that the lessees
owned the billboard.
Both Adams and Long sought, and received,
temporary injunctions and executed injunction bonds.
enjoined from removing or destroying the billboard, although it
was permitted to place public service announcements on it.
Long was enjoined from using or altering the billboard.
The cases were consolidated for trial and referred to a
commissioner in chancery.
Following an ore tenus hearing, the
commissioner concluded that Long owned the billboard.
trial court overruled Adams' exceptions to the commissioner's
report, affirmed the holding of the commissioner, and continued
the case for a hearing to determine damages.
By final order
entered February 14, 1996, the trial court awarded Long $7,190
Adams appeals, asserting that the trial court
erred in its determination of both ownership of the billboard
The billboard at issue is a structure permanently affixed
to the land.
Whether such a structure remains personalty,
owned by the person who erected the structure, or becomes part
of the realty, and thus owned by the landowner, is determined
either by an agreement establishing the nature and ownership of
the structure or, in the absence of agreement, by applying the
three-part test enunciated by this Court in Danville Holding
Corp. v. Clement, 178 Va. 223, 232, 16 S.E.2d 345, 349 (1941).
The record in this case establishes that the lease agreements
between successive landlords and tenants addressed the issue of
ownership rights in the billboard.
The billboard was erected more than 65 years ago by
Consolvo & Cheshire, an advertising agency.
At that time,
Consolvo & Cheshire negotiated a lease which provided that
"[a]ll boards and material placed on the premises" by the
lessee were the property of the lessee and that the lessee
could "remove their boards" from the premises on the
termination of the lease.
Similar language regarding ownership
was contained in leases executed between Consolvo & Cheshire
and successive landowners in 1938 and 1945.
executed in 1949, 1957, 1968, and 1977 between successor
landowners and different lessees, stated that "signs,
structures and equipment" erected by the lessee were the
property of the lessee and could be removed by the lessee.
Adams claims to be the owner under the terms of the 1977
lease or, alternatively, under the Danville test, because all
the leases show an intent that the lessee retain ownership of
We agree that each lease does address the
ownership of the billboard, but places ownership in the lessee
who erected the billboard.
Consolvo & Cheshire erected the
billboard in this case, and, therefore, Adams does not qualify
as the owner of the billboard under the terms of any of the
Because the lease agreements clearly address ownership
of the billboard, application of the test enunciated in
Danville is unnecessary, and the trial court correctly rejected
Adams' ownership claim. 1
The trial court also correctly held that Long was the
owner of the billboard.
When tenants retain ownership of
structures they erect on property and are allowed to remove the
structures, the removal generally must occur within a
Adams does not dispute the commissioner's finding that
although there was a series of billboard leases containing
similar language, Consolvo & Cheshire's lease was not assigned.
Therefore, Adams did not acquire an ownership interest through
assumption of a previous lessee's interest in the leasehold.
reasonable period after the end of the tenancy.
structure is not removed, it becomes the property of the
landlord because it is affixed to the land.
1 Raleigh C.
Minor, The Law of Real Property § 37 (Frederick D.G. Ribble
This rule is based on a presumption of abandonment
and protects subsequent parties from interruption by a tenant
who returns to remove the fixtures.
8 Richard R. Powell,
Powell on Real Property ¶ 653, at 57-52 (Patrick J. Rohan ed.,
The entry of a former tenant on the land to remove the
structure would itself constitute a trespass.
2 Thompson on
Real Property § 13.05(c), at 326, Thomas Edition (David A.
Thomas ed., 1994).
In this case, the tenant that constructed the billboard,
Consolvo & Cheshire, did not remove it at the conclusion of its
tenancy or within a reasonable time thereafter.
the billboard, which was permanently affixed to the land,
became part of the realty and the property of the landowner.
When Long acquired the land, he acquired the billboard as part
of the land purchased.
Therefore, we will affirm that part of
the trial court's judgment holding that Long owned the
We next turn to the issue of the damages awarded by the
Long sought $16,475 which he asserted was the
fair market value of the billboard for the period during which
he was enjoined from using it.
Long based this figure on
income received by Adams from the billboard in 1992 and 1993.
Long calculated an average daily gross income of $20.517,
The trial court deducted certain expenses from Long's gross
revenue figure and awarded Long $7,190 in damages.
with Adams that there is error in this award of damages.
The record does not show the basis for Long's theory that
his measure of damages is the fair market value of the
And we could find no case applying that measure of
damages in circumstances similar or analogous to the
circumstances in this case.
We conclude, however, that the
proper measure of damages in this case is any damage suffered
by Long which was naturally and proximately caused by the
This is the standard used when determining damages
in an action on an injunction bond.
Carr v. Citizen Bank &
Trust Co., 228 Va. 644, 651, 325 S.E.2d 86, 89 (1985).
although Long did not file a separate action to recover on
Adams' injunction bond, he made an oral motion for damages when
the trial court ruled in his favor on the issue of ownership. 3
In both instances, the successful party seeks to recover
damages for an adverse impact suffered by virtue of the terms
of an injunction.
Thus, the rationale for an award of damages
is the same in both instances.
Applying the proper measure of damages to the evidence
and multiplied that figure by the number of days between the
date of the injunction, November 3, 1993, and the date of the
hearing on damages, January 16, 1996. Although the injunction
allowed Adams to display public service advertisements during
the injunction period, Adams did not receive any revenue from
the placement of these advertisements.
Adams did not object to Long's motion for damages, only
to the method used by the court to determine damages.
presented in this case, we conclude that Long is not entitled
to any damages.
The injunction prevented Long from using or
altering the billboard and allowed Adams to place public
service advertisements on it.
Long testified that he intended
to use the billboard to advertise his own business, but he
failed to introduce any evidence of damage he suffered because
he was prevented from advertising his own business on the
The only evidence he produced related to revenue
generated and received by Adams, in the course of its outdoor
This evidence has no relevance to any
damages Long may have incurred resulting from his inability to
advertise his own business on the billboard.
did not claim or produce evidence that he was damaged by Adams'
failure to pay rent for the use of the billboard during the
Accordingly, we will reverse that portion
of the judgment awarding damages to Long and will enter final
judgment in favor of Adams on that issue.
Affirmed in part,
reversed in part,
and final judgment.