
    CIRCUIT COURT OF CAROLINE COUNTY
    Dorothy Rowe Gravatt et al. v. John F. Ames et al.
    April 20, 1990
    Case No. CH89-000049
   By Judge William H. Ledbetter, Jr.

The issue in this case is whether the defendants have an access easement by necessity or by implication across the lands of fee plaintiffs.

Facts

Holly Hill Farm, located on State Route 207 in Caroline County, was once a vast farm of several hundred acres along fee Mattaponi River. For many years, fee property was owned and occupied by fee Rowe femily. In fee early 1960's, several small parcels along Route 207 were conveyed off to individual members of fee femily. One of those off-conveyances was fee 6.81-acre parrel feat is involved in this litigation.

The 6.81-acre parcel was conveyed in 196! to Dorothy Rowe Gravatt a member of fee Rowe femily. The next year, she deeded fee western half of fee parcel to another femily member, Edgar Scott Rowe. In 1963, he devised his western portion of fee parcel to his wife for life, then to his daughter, Mary Frances Rowe Taylor. By these means, Gravatt and Taylor, fee plaintiffs, are now fee owners of fee 6.81-acre parcel which was once part of Holly Hill Farm.

The remainder of Holly Hill Farm was conveyed by fee Rowes to J. Harris Scholl in 1962. Scholl owned fee farm until 1985 when it was sold to John F. Ames, (me of fee defendants. (Actually, fee conveyance was to a trust for fee benefit of Ames and Ms wife for their lives, then to their son. No misjoinder motion has been made, and the question came up only by reference in memoranda and argument of counsel after the commissioner had filed his report. Therefore, the court will take no further note of the matter and will address the merits of the case.) Holly Hill Farm Corporation, the other named defendant, operates die farm.

The focus of the controversy is an old dirt road leading from Route 207 across the 6.81-acre Gravatt-Taylor land to the easternmost portion of Holly Hill Farm. Gravatt and Taylor seek to enjoin Ames’ use of the road. Ames contends that he is entitled to use the road to reach the easternmost portion of Holly Hill Farm, referred to as the “woodpile area,” by virtue of an easement by necessity or implication. (Ames has abandoned his claim to an easement by prescription. Also, he concedes that he has no express grant of easement)

There is no doubt that the road in question has been in existence a long time. None of the witnesses, some of whom have been familiar with the property for more than three-quarters of a century, could recall a time when the road did not exist at least as a “wagon road,” “wood lane,” or “path.” Aerial photographs show the road in existence at least since the early 1950's.

The extent to which the road was used through tire years, by whom, and for what purposes, are disputed factual issues.

In late 1988 or early 1989, Ames ignored a cable across the road and began using the road to move vehicles and equipment to and from the wood pile area of his farm in connection with timbering and construction of a fence. The wood pile area is behind the Gravatt-Taylor parcel and is. shown on the plat of property. Pl. Ex. # 1. That activity precipitated this suit.

Status of the Case

The suit was filed on May 9, 1989. In their bill, Gravatt and Taylor seek injunctive relief and damages against Ames and the corporation for their continuing trespass. The defendants filed a responsive pleading.

On motion of the plaintiffs, after a Ml hearing, the court temporarily enjoined the defendants from using the road. (During the course of the litigation, the temporary injunction was enlarged and modified. Bonds were posted to assure compliance with the toms of the injunction and its modification.) On August 30, 1989, the case was referred to a commissioner in chancery.

The commissioner conducted hearings on August 31,1989, and September 1,1989. He received memoranda, viewed the property, and made his report on December 7, 1989. All parties filed exceptions to the report or portions of it Additional memoranda were filed, and fire court heard arguments on the exceptions on March 21,1990.

Commissioner % Recommendations

The commissioner reports that the evidence fails to establish an access easement or right of way across the Gravatt-Taylor land for die benefit of Holly Hill Farm, and consequently, he recommends that die defendants be enjoined from using the road. The commissioner further finds that the defendants' use of the road has caused only de minimis damage, if any, and recommends against an award of compensatory or punitive damages to the plaintiffs.

While a commissioner’s report is not entitled to the same respect as a jury verdict, Virginia Code § 8.01-610, it is well settled that die report should be respected and given great weight. Eppes v. Eppes, 181 Va. 970 (1943); Hill v. Hill, 227 Va. 569 (1984). The commissioner's findings of fact, upon disputed evidence, are prima facie correct and should not be arbitrarily disturbed. Especially is this trae where, as hers, the testimony was taken in the presence of tire commissioner so that he had occasion to observe the witnesses and their demeanor on the stand and to gauge their character, their biases, if any, and their comparative abilities to know the truth about die matters to which they testified.

Additionally, die court independently has reviewed the evidence, including the 450 pages of transcribed testimony and the applicable legal principles.

Easements by Necessity

To establish an easement by necessity, three conditions must be shown. First, die lands must have been under common ownership at some time, and this unity must have been severed. Second, die severance must have given rise to the need for the easement Finally, reasonable need for the easement must be proved by dear and convincing evidence. Middleton v. Johnston, 221 Va. 797 (1981); Fones v. Fagan, 214 Va. 87 (1973).

There is no dispute about unity of ownership and severance. Until 1961, the Gravatt-Taylor parcel was a part of Holly Hill Farm. At that time, it was severed. Thus, the first condition is met

Did the severance give rise to the need for the easement?

The severance occurred in November of 1961. At about the same time, other conveyances were nude to members of the Rowe family along the public road so that the farmland behind each off-conveyance was denied direct access to toe road. The sequence of toe off-conveyances is not in evidence (except that it appears from toe description in Gravatt’s deed that perhaps toe off-conveyance of toe paree! adjoining her on toe east preceded here). Therefore, assuming for toe purpose of this analysis that toe wood pile area is now inaccessible to Route 207, it cannot be determined from the record whether toe severance of this parcel landlocked any portion of Holly Hill Farm and thereby created a need for toe right of way.

This aspect of easements by necessity was addressed in American Small Business Investment Company v. Frenzell, 238 Va. 453 (1989). There, toe Court said:

A right of way by necessity is based on toe theory that when a grantor conveys property, he does so in a manner which will allow beneficial use of boto toe property he conveys as well as any property he retains. This type of easement arises from an implied grant or implied reservation .... It is essential to this theory that toe necessity arise simultaneously with toe conveyance. If toe conveyance does not preclude toe beneficial use of either toe property conveyed or toe property retained, an implied grant or reservation is unnecessary .... Frenzell, supra, at p. 456.

Because toe court cannot resort to speculation or conjecture to determine whether this severance gave rise to toe necessity of a right of way from toe wood pile area to toe public road, toe defendants have Med to establish an easement of necessity.

The court agrees with toe defendants that reasonable need, not absolute physical necessity, satisfies toe third condition. Jennings v. Lineberry, 180 Va. 44 (1942); Hartsock v. Powell, 199 Va. 320 (1957). The issue is whether toe defendants have proved a reasonable need for toe easement by clear and convincing evidence.

The evidence on this point is in conflict Several witnesses testified that toe wood pile area is accessible from other portions of toe tract which, in turn, are readily accessible to Route 207 along several hundred feet of frontage. The commissioner viewed toe property on two occasions and, in essence, agreed with these witnesses. Other witnesses testified that rough terrain and “wet spots” separate toe wood pile area from toe other parts of toe farm and that construction of an access road would be unduly expensive.

The court cannot say that toe commissioner’s finding of facts on this issue, upon toe conflicting evidence, is plainly wrong. The evidence at toe commissioner’s hearing did not, as toe defendants assert in their memorandum, "conclusively demonstrate” that the construction of a toad linking toe wood pile area to toe other portions of toe form would be “wholly impractical.” Nor is it true, as they contend, that toe commissioner "totally ignored toe evidence” and relied solely on his view, hi fact, upon an independent review of toe evidence, toe court is persuaded that toe testimony of the plaintiffs’ witnesses is more convincing.

Accordingly, toe court is of toe opinion that toe defendants have foiled to show a reasonable or practical need for a right of way across toe plaintiffs’ property.

Easement by implied Grant

The doctrine of easement by implied grant, or implication, also known as toe doctrine of quasi-easements, holds that where toe owner of land has so arranged his property that one parcel derives from another a benefit or advantage of an obvious, continuous, and reasonably necessary character and he sells one of toe parte, it is implied (unless provided otherwise, of course) that toe benefit or advantage continues as before toe separation of title. See 6B M.J., Easements, § 10.

A person cannot have an easement in his own land, hut he may use one part for toe benefit of another part. This will not create an easement so long as toe two parts remain in toe same hands; hence, toe reference to "quasi-easements.” Upon severance of toe parte, there is an implied grant or reservation of ail those continuous and apparent “quasi-easements” which have been used by toe owner during unity and are reasonably necessary for toe enjoyment of one of toe parte. It is said that toe use, in order to pass or to be retained by implication, must be open, visible, apparent, and continuous. Sanderlin v. Baxter, 76 Va. 299 (1882); Fones v. Fagan, supra, Haynie v. Brenner, 216 Va. 722 (1976).

Applying these principies to this case, once again toe facts are disputed. The defendants, in an effort to show a reservation of easement by implication, emphasize toóse parts of certain witnesses’ testimony which tend to support toe proposition that toe road in question has been in existence, apparent, and in use for decades.

On toe other hand, toe plaintiffs’ witnesses referred to toe road as an old wagon road or wood lane, seldom used by anyone, grown up with weeds and brush. For instance, Frances Rowe Lambert, age 71, grew up on Holly Hill Farm and has lived within sight of toe property all of her life. She stated that the road was a "wagon road” and that to her knowledge, it was never used by toe Rowes or their successors, toe Scholls, for any purpose on a regular basis. On occasion, she said, timber had been hauled out over the road, and at one time, small amounts of gravel were removed from the gravel pit to file public road by way of this road. In sum, she described the road as just another of many seldom-used roads that cross-cross large farms and timber lands. (Transcript, pp. 115-118.) Another witness for file plaintiffs, Robert C. Doswell, age 83, testified that file road has not been used by anyone for more than thirty years, except that “Jimmy Farmer” kept a wood pile on that portion of Holly Hill Farm and, with permission, used the road to remove firewood from time to time. (Transcript, p. 211.) James W. Farmer, age 63, said (hat he maintained a “firewood rack” in file woodpile area of Holly Hill Farm and used the road to haul out wood with the permission of Rufus Rowe, Gravatt’s father and overseer of her property. He stated that a cable was across the road, and no one used it without getting the key to the cable lock from Rufus Rowe. (Transcript, pp. 16-19.)

Therefore, although file testimony is conflicting, there is ample evidence to support the proposition that this road was not in continuous or apparent use. at the time the 6.81-acre parcel was severed from Holly Hill Farm, nor, for that matter, at any other time within memory of those persons most familiar with the property. Instead, as Frances Lambert explained, the road was just another old lane or path which can be seen cross-crossing farms and timbar lands, seldom if ever used in modem times, grown up with weeds and shrubs, and not considered “reasonably necessary” for anything.

The defendants miss the point when they emphasize the existence of this old road, or trace, for many years. Most roads, not in use for generations, remain visible long after they are abandoned. It is file use, not merely the existence, of a way that must be continuous and apparent in order to give rise to ah implied reservation of easement

An old way, seldom if every used, does not meet the criteria enunciated in Sanderlin v. Baxter, 76 Va. 299 (1882). Such a road cannot be the basis of an implied understanding or agreement between a grantor and grantee that the. grantor reserves the right to use file road over file land of his grantee, in dorogation from his own grant for die benefit of a portion of land that he retains.

If the rule were otherwise, these old roads, or traces of roads, used in former times for farm purposes, logging, or whatever, now in disuse or rarely used, and unnecessary for any reasonable purpose, would create havoc with land titles and would enable landowners, such as the defendants here, to lay claim to easements where none exist

An implication of easement is further negated by the conduct of the parties after severance.

The Scholls purchased Holly Hill Farm from the Rowe family in 1962, a year after the Gravatt-Tayior parcel was severed from the from. During the twenty-three year period that the Scholls owned toe farm, they used toe road rarely and toen only with permission. They never asserted a right to use toe road or that its use was appurtenant to their property. They never complained that passage was blocked by a locked cable, toe key to which they had to get from Rufus Rowe, caretaker of toe Gravatt-Tayior property. (Ames testified that a key to toe lock was in toe house when he purchased Holly Hill Farm in 198S. Even so, one can only infer from that fact either (1) Rufus Rowe gave toe Scholls a key rather toan requiring that they find him and get his key each tone they wanted to use toe road, or (2) toe Scholls had a duplicate key without the knowledge or consent of Rufus Rowe, to either «ase, the fact remains that the Scholls never challenged Gravatt’s and Taylor’s control of toe use of toe road and never gave any indication that they asserted a right to use it as an appurtenance to their farm.)

Finally, in order to imply an easement, use of toe way must be reasonably necessary. The defendants correctly point out that a demonstration of prior use reduces toe degree of necessity required. Fones, supra. However, with that reduction, toe defendants' evidence is insufficient. Ample evidence exists to support toe conclusion that toe wood pile area is not inaccessible and that a way can be created, with some inconvenience, to link that area with toe remainder of toe ton» mid, consequently, toe public road.

For these reasons, toe court is of toe opinion that the defendants have toiled to establish an easement by implication.

The defendants complain that toe commissioner did not specifically address toe doctrine of easement by implication. It is true that toe commissioner’s report does not separately analyze toe criteria or elements of this type of easement. It is clear, however, that toe commissioner made a finding that covers toe issue. He concluded that toe defendants "do not have any type of legal easement or right of way over the lands of plaintiffs, either by express grant, by necessity, by prescription, or any other legal theory.” (Report, p. 8; emphasis added.) Further, toe court has reviewed toe doctrine, has analyzed toe facts of this case, and has applied toe law to toe facts, hi doing so, toe court reaches toe same conclusion as toe commissioner.

Damages

Befarse toe defendant have no right to use toe road, their intrusions upon it constitute a continuing trespass. It follows that toe plaintiffs are entitled to damages if any have been shown.

The commissioner concluded that the plaintiffs are not entitled to an award of compensatory or punitive damages. As for die latter, the commissioner found no evidence that the defendants acted with malice, or in willful, wanton, or reckless disregard of the rights of others. As for compensatory damages, die commissioner reported that the damages to the road attributable to the defendants' improper use was insignificant The other damages that the plaintiffs claimed, according to die commissioner, were not satisfactorily proven or were caused by the defendants' construction of a fence along the boundary line and not by die use of the road itself.

Upon a review of the evidence, die court agrees with the commissioner and holds that die plaintiffs are not entitled to an award of damages.

Costs

The costs of this proceeding, including the cost of instituting die suit, the court reporter’s charges for taking and transcribing the evidence, and the commissioner’s fee, which the court finds to be reasonable and hereby approves, shall be assessed to the defendants.

Conclusion

The defendants do not have an easement across the lands of the plaintiff*. Accordingly, the defendants will be permanently enjoined fiom entering upon or using tiie road across the lands of die plaintiffs for any purpose. The bond posted by the plaintiffs in connection with the temporary injunction and the bond posted by the defendants in connection with the modification of the temporary injunction will be terminated and their deposits will be returned. The plaintiff» are not entitled to damages as a result of the defendants’ use of the road. Costs of this proceeding will be assessed against the defendants.  