Johnson v. DeBusk Farm, Inc. ( 2006 )

PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee,
JJ., and Stephenson, S.J.
DIANE B. JOHNSON
OPINION BY
v. Record No. 052476 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
November 3, 2006
DEBUSK FARM, INC., ET AL.
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
C. Randall Lowe, Judge
The principal issues in this appeal are whether the trial
court erred in finding (1) the existence of a prescriptive easement
and (2) that the owner of the servient tract had notice of such
easement when she purchased the tract.
I.
DeBusk Farm, Inc. (DeBusk), filed a declaratory judgment
action against Diane B. Johnson, seeking the establishment of a
prescriptive easement across Johnson’s property. Johnson, in turn,
filed a third-party cross-bill against Meade M. Willis and Mary B.
Willis, her predecessors-in-title, claiming the Willises had
breached their covenant of general warranty set forth in their deed
to her.
The trial court, after an ore tenus hearing, ruled in favor of
DeBusk, finding the existence of a prescriptive easement that was
open and obvious to Johnson when she purchased her property.
Having found that the easement was open and obvious to Johnson, the
court dismissed her cross-bill against the Willises. We awarded
Johnson this appeal.
II.
We view the evidence in the light most favorable to DeBusk,
the prevailing party at trial. Caplan v. Bogard, 264 Va. 219, 225,
563 S.E.2d 719, 722 (2002). So viewed, the evidence showed that
Johnson acquired her farm from the Willises on August 20, 1999.
Johnson’s farm straddles DeBusk Mill Road, a state secondary
highway. The Middle Fork of the Holston River flows through
Johnson’s farm south of DeBusk Mill Road.
DeBusk owns farmland (the DeBusk Tract) that adjoins Johnson’s
farm on its southern border and just south of the Middle Fork as it
flows through Johnson’s farm. DeBusk acquired the DeBusk Tract
from the DeBusk family (the Family) in 1988. If DeBusk cannot use
the farm road, which is the subject of this litigation, the DeBusk
Tract is virtually landlocked.
The Family had long owned farmland on both sides of the Middle
Fork of the Holston River. The evidence established that the farm
road was used for many years to cross the river during the time
that the historic DeBusk Mill was in operation. After the mill
closed about 1967, the Family, from 1967 to 1988, and DeBusk,
thereafter, continued to use the farm road.
David DeBusk, vice president and farm manager of DeBusk,
testified that, during the 33-year period that the Willises owned
what is now the Johnson farm, the farm road was regularly traveled
with farm equipment and to transport cattle. The Willises were
aware of DeBusk’s and the Family’s continued use of the farm road
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across their property for the entire time they owned it, and they
acknowledged under oath the existence of the farm road as an
easement.
The evidence established the location and visible markings of
the farm road. The north end of the farm road is marked by a
“turnout” from the state highway, DeBusk Mill Road. From there,
the farm road passes through the part of Johnson’s farm south of
DeBusk Mill Road and through a permanent “cut” in the north bank of
the river. From the cut, the farm road proceeds down the river
bank to a ford in the river, and, after crossing the river, the
farm road proceeds about 15 feet up the south bank of the river and
over a 10-foot strip of Johnson’s land into the DeBusk Tract. On
the south bank of the river is a concrete ramp, apparently
constructed to allow vehicles to exit the river.
Johnson inspected the Willises’ property before she bought it.
She testified that she had observed the turnout at the north end of
the farm road. She also “saw a place on the south side of the
river where people had passed or trucks or something.”
Others who had been on the property at or around the time of
Johnson’s purchase testified that they had noticed a portion of the
farm road that they believed provided access to the river. Still
others testified that they had seen the ford in the river and the
concrete ramp leading out of it.
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III.
The trial court heard the evidence ore tenus and, on its own
motion, conducted a view of the properties. The trial court stated
its finding as follows:
The Court, after reviewing the evidence, finds as a
matter of fact that the complainant has established, by clear
and convincing evidence, an easement by prescription over the
respondent’s property. The evidence established this easement
was used for many years to cross the river during a period of
time when a mill on the river was in use. The mill was closed
in approximately 1967. The evidence further established
thereafter the easement continued to be used to cross the
respondent’s property [then] the river to enter the DeBusk
property on the other side for the purpose of farming.
The court further stated the following:
After a view of the property, the Court can find clearly that
anyone purchasing the property would have seen that there was
a ford in the river, which crossed to an embankment on the
other side with a road leading up from the river on the other
side. Also, on Ms. Johnson’s side of the property, the bank
clearly was tailored down and it was open and obvious that
that property had been crossed to use the ford to obtain
access to the other side of the river.
Having found that the easement was open and obvious, the trial
court held that the Willises had not breached their general
warranty covenant in their deed to Johnson. Accordingly, the trial
court dismissed Johnson’s claim against them.
IV.
As previously stated, we must view the evidence in the light
most favorable to DeBusk, the prevailing party at trial. Caplan,
264 Va. at 225, 563 S.E.2d at 722. Additionally, when a trial
court’s decision is based upon an ore tenus hearing, we owe that
decision great deference. Pizzarelle v. Dempsey, 259 Va. 521, 527,
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526 S.E.2d 260, 263 (2000). Therefore, we will not disturb the
trial court’s decision unless it is plainly wrong or without
evidence to support it. Id.
First, we consider whether the trial court erred in finding
the existence of a prescriptive easement over Johnson’s land. In
order to establish a prescriptive easement, DeBusk had the burden
of proving, by clear and convincing evidence, that its use of the
farm road was “ ‘adverse, under a claim of right, exclusive,
continuous, uninterrupted, and with the knowledge and acquiescence
of the owner of the land over which it passes, and that the use has
continued for at least 20 years.’ ” Amstutz v. Everett Jones
Lumber Corp., 268 Va. 551, 559, 604 S.E.2d 437, 441 (2002) (quoting
Martin v. Moore, 263 Va. 640, 645, 561 S.E.2d 672, 675 (2002)).
“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)).
Johnson contends that the evidence that Virginia McKee, a
predecessor-in-title of the Willises, had owned a one-third
interest in the DeBusk Mill and also happened to be David DeBusk’s
great aunt was sufficient to rebut any presumption that the
Family’s use was adverse or under a claim of right. Even if this
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use were permissive, acquisition of the property by the Willises,
who had no familial relationship to the Family, constituted a
"change in circumstances and conditions" so that the use would not
have continued to be permissive. Eagle Lodge v. Hofmeyer, 193 Va.
864, 880, 71 S.E.2d 195, 204 (1952). Indeed, the trial court, in
finding the existence of a prescriptive easement, focused primarily
on the 33-year period when the servient tract was owned by the
Willises. During this period, the farm road was openly and
continuously used by DeBusk and the Family to cross the river, and
the road was used with the knowledge of the Willises. Thus, under
the trial court’s finding, which is supported by the evidence, the
prescriptive easement was established at least 13 years before
Johnson ever acquired her farm.
Johnson also contends that, because there is evidence in the
record that the public once used the farm road to reach the DeBusk
Mill, no prescriptive-easement right arose. Again, Johnson ignores
the trial court’s finding that a prescriptive easement arose while
the Willises owned the servient tract. Finally, we consider
Johnson’s contention that the trial court erred in finding that she
had had sufficient notice of the farm road’s existence prior to the
time she purchased her farm from the Willises. We do not agree.
Although the evidence was in conflict concerning this issue,
the trial court viewed the properties and resolved the conflict in
DeBusk’s favor. We hold that the trial court’s finding regarding
notice to Johnson, which is entitled to great deference, is not
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plainly wrong and is supported by the evidence. Indeed, Johnson’s
own testimony indicates that she had observed sufficient
indications of an existing road to put her on notice that an
easement may exist. We also agree with the trial court that,
because the easement was open and obvious, the Willises had not
breached their covenant of general warranty contained in their deed
to Johnson. Scott v. Albemarle Horse Show, 128 Va. 517, 529-31,
104 S.E. 842, 846-47 (1920) (easements that are open and obvious
not within covenant of general warranty); see Russakoff v. Scruggs,
241 Va. 135, 141, 400 S.E.2d 529, 533 (1991). Therefore, the trial
court was correct in dismissing Johnson’s claims against the
Willises.
V.
For the foregoing reasons, we will affirm the trial court’s
judgment.
Affirmed.
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