burden of rebutting presumption in Virginia

2026“A judicially issued search warrant is entitled to a ‘presumption of validity,’ and a defendant challenging a resulting search bears the burden of rebutting that presumption.” Harvey, 76 Va. App. at 461 (quoting Brown v. Commonwealth, 68 Va. App. 517, 524 (2018)). “[T]he Fourth Amendment’s strong preference for searches conducted pursuant to a warrant” imposes this deferential standard on an appellant’s challenge to a warrant.

2025In addition, “[a] judicially issued search warrant is entitled to a ‘presumption of validity,’ and a defendant challenging a resulting search bears the burden of rebutting that presumption.” Harvey v. Commonwealth, 76 Va. App. 436 , 461 (2023) (quoting Brown v. Commonwealth, 68 Va. App. 517, 524 (2018)).

2009See Courembis v. Courembis, 43 Va.App. 18, 34 , 595 S.E.2d 505, 513 (2004) (“The party claiming that property acquired during the mar *484 riage is separate property bears the burden of rebutting this presumption.”).

2009See Courembis v. Courembis, 43 Va.App. 18, 34 , 595 S.E.2d 505, 513 (2004) (“The party claiming that property acquired during the mar *484 riage is separate property bears the burden of rebutting this presumption.”).

2004We have said many times that, “Where there has been an open, visible, continuous and unmolested use of a road across the land of another for at least twenty years, the use will be presumed to be under claim of right, and places upon the owner of the servient estate the burden of rebutting this presumption by showing that the use was permissive, and not under a claim of right.” Powell v. Magee, supra; Rives v. Gooch, 157 Va. 661, 663 , 162 S.E. 184 ; Davis v. Wilkinson, 140 Va. 672, 675, 676 , 125 S.E. 700, 701, 702 .

2004We have said many times that, “Where there has been an open, visible, continuous and unmolested use of a road across the land of another for at least twenty years, the use will be presumed to be under claim of right, and places upon the owner of the servient estate the burden of rebutting this presumption by showing that the use was permissive, and not under a claim of right.” Powell v. Magee, supra; Rives v. Gooch, 157 Va. 661, 663 , 162 S.E. 184 ; Davis v. Wilkinson, 140 Va. 672, 675, 676 , 125 S.E. 700, 701, 702 .

1986We have said many times that “Where there has been an open, visible, continuous and unmolested use of a road across the land of another for at least twenty years, the use will be presumed to be under claim of right, and places upon the owner of the servient estate the burden of rebutting this presumption by showing that the use was permissive, and not under a claim of right. [Citations omitted]. (quoting Craig v. Kennedy, 202 Va. 654, 657-58 , 119 S.E.2d 320, 322-23 (1961)).

1986We have said many times that “Where there has been an open, visible, continuous and unmolested use of a road across the land of another for at least twenty years, the use will be presumed to be under claim of right, and places upon the owner of the servient estate the burden of rebutting this presumption by showing that the use was permissive, and not under a claim of right. [Citations omitted]. (quoting Craig v. Kennedy, 202 Va. 654, 657-58 , 119 S.E.2d 320, 322-23 (1961)).

2017Neither Graves nor the majority, therefore, can shoulder the burden of rebutting the presumption that the 2004 amendment effected a "substantive change in law," Bruhn , 264 Va. at 602 , 570 S.E.2d at 869 (citation omitted), by replacing a fixed term of imprisonment with a mandatory minimum term of imprisonment.

2017Neither Graves nor the majority, therefore, can shoulder the burden of rebutting the presumption that the 2004 amendment effected a "substantive change in law," Bruhn , 264 Va. at 602 , 570 S.E.2d at 869 (citation omitted), by replacing a fixed term of imprisonment with a mandatory minimum term of imprisonment.

2009See, Fairfax County Board of Supervisors v. Horne, 216 Va. 113, 117-18 , 215 S.E.2d 453, 456 (1975); Cupp v. Fairfax County Board of Supervisors, 227 Va. 580, 596-97 , 318 S.E.2d 407, 415-16 (1984); Fairfax County Board of Supervisors v. Carper, 200 Va. 653, 660 , 107 S.E.2d 390, 395 (1959).

2009See, Fairfax County Board of Supervisors v. Horne, 216 Va. 113, 117-18 , 215 S.E.2d 453, 456 (1975); Cupp v. Fairfax County Board of Supervisors, 227 Va. 580, 596-97 , 318 S.E.2d 407, 415-16 (1984); Fairfax County Board of Supervisors v. Carper, 200 Va. 653, 660 , 107 S.E.2d 390, 395 (1959).

2004“As all property acquired during a marriage is presumed marital property, the party who claims the property should be classified as separate bears the burden of rebutting this presumption.” Fowlkes v. Fowlkes, 42 Va. App. 1, 6-7 , 590 S.E.2d 53, 55-56 (2003).

2004“As all property acquired during a marriage is presumed marital property, the party who claims the property should be classified as separate bears the burden of rebutting this presumption.” Fowlkes v. Fowlkes, 42 Va. App. 1, 6-7 , 590 S.E.2d 53, 55-56 (2003).

2006"Where there has been an open, visible, continuous and unmolested use of a road across the land of another for at least twenty years, the use will be presumed to be under claim of right, and places upon the owner of the servient estate the burden of rebutting this presumption by showing that the use was permissive, and not under claim of right." Pettus v. Keeling, 232 Va. 483 , 485, 352 S.E.2d 321 , 323-24 (1987) (quoting Rives v. Gooch, 157 Va. 661 , 663, 162 S.E. 184 , 184 (1932)).

2006"Where there has been an open, visible, continuous and unmolested use of a road across the land of another for at least twenty years, the use will be presumed to be under claim of right, and places upon the owner of the servient estate the burden of rebutting this presumption by showing that the use was permissive, and not under claim of right." Pettus v. Keeling, 232 Va. 483 , 485, 352 S.E.2d 321 , 323-24 (1987) (quoting Rives v. Gooch, 157 Va. 661 , 663, 162 S.E. 184 , 184 (1932)).

2026Taylor v. Commonwealth, 66 Va. App. 619, 631 (2016) (quoting Anzualda v. Commonwealth, 44 Va. App. 764, 775 (2005) (en banc)).

2025“This deferential standard ‘is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.’” Taylor v. Commonwealth, 66 Va. App. 619, 631 (2016) (quoting Anzualda v. Commonwealth, 44 Va. App. 764, 775 (2005) (en banc)).

2026Taylor v. Commonwealth, 66 Va. App. 619, 631 (2016) (quoting Anzualda v. Commonwealth, 44 Va. App. 764, 775 (2005) (en banc)).

2025“This deferential standard ‘is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.’” Taylor v. Commonwealth, 66 Va. App. 619, 631 (2016) (quoting Anzualda v. Commonwealth, 44 Va. App. 764, 775 (2005) (en banc)).

2025See Mertz v. Sullivan, 82 Va. App. 762 , 790 (2024) (“The primary significance of a presumption is that it operates to shift to the opposing party the burden of producing evidence tending to rebut the presumption.”) (citation modified); Centra Health, Inc. v. Mullins, 277 Va. 59, 81 (2009) (“A jury is presumed to follow the court’s instructions, and an appellant who challenges a verdict bears the burden of rebutting that presumption.”); Stump v. Doe, 250 Va. 57, 62 (1995) (“Since the court took prompt and appropriate action to remove the plaintiff’s improper statement from jury consideration,

2023On appeal, Mid-Atlantic suggests that Dr. Connor’s absence added fuel to -8- Mid-Atlantic’s argument ignores the impact of the circuit court’s repeated instructions to the jury not to “make any assumptions or draw any inference due to [Dr. Connor’s] absence.” “A jury is presumed to follow the court’s instructions, and an appellant who challenges a verdict bears the burden of rebutting that presumption.” Centra Health, Inc. v. Mullins, 277 Va. 59, 81 (2009).

2025See Mertz v. Sullivan, 82 Va. App. 762 , 790 (2024) (“The primary significance of a presumption is that it operates to shift to the opposing party the burden of producing evidence tending to rebut the presumption.”) (citation modified); Centra Health, Inc. v. Mullins, 277 Va. 59, 81 (2009) (“A jury is presumed to follow the court’s instructions, and an appellant who challenges a verdict bears the burden of rebutting that presumption.”); Stump v. Doe, 250 Va. 57, 62 (1995) (“Since the court took prompt and appropriate action to remove the plaintiff’s improper statement from jury consideration,

2009Stump v. Doe, 250 Va. 57 , 62, 458 S.E.2d 279 , 282 (1995).

2014Furthermore, a legislative act “is presumed to be valid so long as it is not unreasonable and arbitrary” and “the party challenging the action has the burden of rebutting the presumption.” Board of Supervisors v. Snell Corp., 214 Va. 655, 658 , 202 S.E.2d 889 (1974); National Memorial Park, 232 Va. 89 , 348 S.E.2d at 250 .

1986Fairfax County v. Southland Corp., 224 Va. 514, 522-23 , 297 S.E.2d 718, 722 (1982); City of Richmond v. Randall, 215 Va. 506, 511 , 211 S.E.2d 56, 60 (1975); Fairfax County v. Snell Corp., 214 Va. 655, 658 , 202 S.E.2d 889, 892-93 (1974); Board of Supervisors v. Carper, 200 Va. 653, 660 , 107 S.E.2d 390, 395 (1959).

2009See, Fairfax County Board of Supervisors v. Horne, 216 Va. 113, 117-18 , 215 S.E.2d 453, 456 (1975); Cupp v. Fairfax County Board of Supervisors, 227 Va. 580, 596-97 , 318 S.E.2d 407, 415-16 (1984); Fairfax County Board of Supervisors v. Carper, 200 Va. 653, 660 , 107 S.E.2d 390, 395 (1959).

2008See, Fairfax County Board of Supervisors v. Horne, supra, 216 Va. at 117-18 , 215 S.E.2d at 456; Cupp v. Fairfax County Board of Supervisors, supra, 227 Va. at 596-97 , 318 S.E.2d at 415-16 ; Fairfax County Board of Supervisors v. Carper, 200 Va. 653, 660 , 107 S.E.2d 390, 395 (1959).

2006"Where there has been an open, visible, continuous and unmolested use of a road across the land of another for at least twenty years, the use will be presumed to be under claim of right, and places upon the owner of the servient estate the burden of rebutting this presumption by showing that the use was permissive, and not under claim of right." Pettus v. Keeling, 232 Va. 483 , 485, 352 S.E.2d 321 , 323-24 (1987) (quoting Rives v. Gooch, 157 Va. 661 , 663, 162 S.E. 184 , 184 (1932)).

2006"Where there has been an open, visible, continuous and unmolested use of a road across the land of another for at least twenty years, the use will be presumed to be under claim of right, and places upon the owner of the servient estate the burden of rebutting this presumption by showing that the use was permissive, and not under claim of right." Pettus v. Keeling, 232 Va. 483 , 485, 352 S.E.2d 321 , 323-24 (1987) (quoting Rives v. Gooch, 157 Va. 661 , 663, 162 S.E. 184 , 184 (1932)).

1993Martin v. Proctor, 227 Va. 61, 65 , 313 S.E.2d 659 (1984) quoting with approval Craig v. Kennedy, 202 Va. 654, 657-58 , 119 S.E.2d 320, 322-23 (1961).... [FJailure to show the origin of the use raises a presumption that the easement originated either adversely or by grant, the presumption only arises after proof that “a way has been used openly, uninterruptedly, continuously and exclusively for a period of more than twenty years . . . .” McNeil v. Kingrey, 237 Va. 400, 404 , quoting with approval Williams v. Green, 237 Va. 205, 208 , 68 S.E. 253 (1910).

1993Martin v. Proctor, 227 Va. 61, 65 , 313 S.E.2d 659 (1984) quoting with approval Craig v. Kennedy, 202 Va. 654, 657-58 , 119 S.E.2d 320, 322-23 (1961).... [FJailure to show the origin of the use raises a presumption that the easement originated either adversely or by grant, the presumption only arises after proof that “a way has been used openly, uninterruptedly, continuously and exclusively for a period of more than twenty years . . . .” McNeil v. Kingrey, 237 Va. 400, 404 , quoting with approval Williams v. Green, 237 Va. 205, 208 , 68 S.E. 253 (1910).

2026When a warrant is obtained, “the scope of a search is limited by the terms of the authorizing warrant.” Rosa v. Commonwealth, 48 Va. App. 93, 98 (2006).

2025“Thus, where evidence is presented that property was acquired during the marriage, the [circuit court] judge must conclude that it is marital property unless adequate evidence is produced to establish that it is separate property as defined in Code § 20-107.3(A)(1).” Id. at 35 (quoting Lambert v. Lambert, 6 Va. App. 94, 99 (1988)).

2025See Mertz v. Sullivan, 82 Va. App. 762 , 790 (2024) (“The primary significance of a presumption is that it operates to shift to the opposing party the burden of producing evidence tending to rebut the presumption.”) (citation modified); Centra Health, Inc. v. Mullins, 277 Va. 59, 81 (2009) (“A jury is presumed to follow the court’s instructions, and an appellant who challenges a verdict bears the burden of rebutting that presumption.”); Stump v. Doe, 250 Va. 57, 62 (1995) (“Since the court took prompt and appropriate action to remove the plaintiff’s improper statement from jury consideration,

2023Brown v. Commonwealth, 68 Va. App. 517, 524 (2018) (quoting Lebedun v. Commonwealth, 27 Va. App. 697, 711 (1998)).

2015See, e.g., Sims, 55 Va. App. at 349 , 685 S.E.2d at 873 .

2015See, e.g., Sims, 55 Va. App. at 349 , 685 S.E.2d at 873 .