Ellis v. Simmons

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons and
Agee, JJ., and Russell, S.J.
ERNEST L. ELLIS, ET AL. OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 042842 September 16, 2005
GARLAND P. SIMMONS, ET AL.
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge
This appeal presents the question whether a landowner,
seeking to establish a prescriptive easement over the lands of
neighboring owners, must show the boundaries of the land he
claims to be the dominant estate.
The essential facts are undisputed. Reid Jones, Jr.
acquired a number of contiguous parcels of land in the Diamond
Hill area of Bedford County, beginning in the 1960’s. Jones
died in 1996 and devised all of this property, then containing
about 232 acres, to The Joco Foundation. Joco employed a
surveyor, Donnie W. Slusher, who subdivided all of the 232
acres into new tracts in 2002 and recorded the plat. The
Slusher plat did not show the property lines of the numerous
parcels Jones had originally acquired. The new tracts on the
Slusher plat had boundary lines entirely different from those
of the parent parcels Jones had acquired.
In 2003, Garland P. Simmons and Carolyn P. Simmons (the
complainants) purchased 161 acres of the Joco property, shown
as Tract 11 on the Slusher plat, at a public auction. The
plat showed an existing “old road bed” extending northward
from a cemetery on Tract 11.* The “old road bed” connected to
a “soil road” continuing northward to the northernmost point
of the Joco property. From that point, the road departed from
the Joco property and continued across three neighboring
tracts to Diamond Hill Road (State Route 655). The owners of
the three neighboring tracts were, respectively, Ernest Lee
Ellis and Janet H. Ellis, Clayton P. Hurt and Emily F. Hurt,
and Edwin C. Ellis and Elsie B. Ellis (collectively, the
respondents.)
The complainants brought this suit, alleging that they
and their predecessors in title had used the old road for a
period in excess of 20 years under circumstances giving them a
right to a prescriptive easement and that the respondents had
obstructed the roadway by installing a locked gate. The
complainants sought injunctive relief and a determination of
their right to continuing and uninterrupted use of the road.
The chancellor heard the evidence ore tenus and held that the
complainants had met their burden of proving, by clear and
convincing evidence, that the “right of way described in the
Bill of Complaint is an easement appurtenant to the property
* It is conceded by the parties before the court that
those who may have an interest in the cemetery have not been
made parties to the suit and that their interests are
unaffected thereby.
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now owned by the complainants,” fixing its width at twelve
feet and enjoining the respondents from interfering with its
use. We awarded the respondents an appeal.
There are two assignments of error: (1) That the
complainants failed to establish by clear and convincing
evidence that a prescriptive easement had been established,
and (2) that the chancellor erred in failing to require proof
of the boundaries of the property to which the easement was
appurtenant. Because we find the second assignment of error
to be dispositive, the evidence may be summarized briefly.
The evidence showed that Reid Jones, Jr., around 1986,
asked permission from the respondents and their predecessors
in title to continue the use of the old road for ingress and
egress. They all agreed. Later, Jones asked them to sell him
an easement over the road, but they refused. They never
obstructed his use, but they and he evidently regarded his use
as permissive.
The old roadway was shown on plats and was mentioned in
descriptions in deeds as early as 1919. Its physical location
was shown on a U. S. Geological Survey map of the area. The
evidence showed that several families whose farms and homes
had been dependent upon the road for ingress and egress had
used it openly and continuously for many years prior to Jones’
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acquisition of their properties. One witness testified to
personal knowledge of such use as early as 1937. Those
families were some, but not all, of the complainants’
predecessors in title. There was no evidence that their use
was permissive and no evidence that the respondents’
predecessors had ever objected to or interfered with it.
The Slusher plat, which had subdivided all of Jones’ 232
acres and which showed the complainants’ land as “Tract 11,”
failed to show the locations and boundaries of the lands of
the several former owners who had used the road. Slusher
testified at trial that Jones had owned “other land” that had
been included in his subdivision of the Joco property but the
evidence failed to show the area or location of such “other
land.” The complainants’ Tract 11 contained more acreage than
the combined area of the parent tracts shown by the evidence
to have been the former dominant estates. The conclusion is
inescapable that Tract 11 contains some “other land” which was
never shown by the evidence to have been appurtenant to the
prescriptive easement.
The chancellor found that the complainants had
established, by clear and convincing evidence, that Jones’
predecessors had exercised open, visible, continuous and
unmolested use of the roadway across the respondents’ property
for a period in excess of 20 years, raising the presumption
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that their use was under a claim of right. The chancellor
further held that the presumption had not been rebutted, and
that the prescriptive right they had obtained had become
appurtenant to Jones’ predecessors’ lands before Jones
acquired their properties and was not lost by Jones’
subsequent permissive use or by his effort to purchase an
easement. The chancellor also found the evidence sufficient
to establish the road’s location and 12-foot width.
We will assume, without deciding, that the evidence
supported the chancellor’s ruling in all the foregoing
respects. Nevertheless, the complainants’ failure to prove
the boundaries of the dominant estate is fatal to their claim.
The chancellor’s decree established a prescriptive
easement over the lands of the respondents for the benefit of
all the land owned by the complainants. The decree thus had
the effect of making Tract 11, as shown on the Slusher plat,
the dominant estate to which the easement was appurtenant.
The evidence, however, lacked any means of relating the modern
Tract 11 to the parent parcels whose owners had used the road
for ingress and egress to their respective farms and homes.
Tract 11 contained additional land that had not belonged to
the owners of those parent parcels, but the evidence failed to
specify the location or area of such additional land. The
chancellor, therefore, was unable to tailor the final decree
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to restrict the dominant estate to the property to which the
easement had, historically, been appurtenant. The result was
to increase the burden of the easement upon the servient
estates to an unknown extent.
The imposition of a prescriptive easement is the taking
of a property right of the servient owner without payment of
compensation. Amstutz v. Everett Jones Lumber Corp., 268 Va.
551, 562, 604 S.E.2d 437, 443, (2004). For that reason, we
said, in Eagle Lodge, Inc. v. Hofmeyer, 193 Va. 864, 877, 71
S.E.2d 195, 202 (1952), “[T]he law is jealous of a claim to an
easement.” It is also one of the reasons underlying our
decision in Pettus v. Keeling, 232 Va. 483, 485-87, 352 S.E.2d
321, 323-24 (1987), to hold a claimant to a prescriptive
easement to the burden of proving his case by clear and
convincing evidence. Amstutz, 268 Va. at 562-63 604 S.E.2d at
443.
The foregoing reason underlies the rule that the owner of
the dominant estate may not increase the burden of the
easement upon the servient estate. Indeed, such an increase
may, in some circumstances, cause the easement to be
extinguished. “[I]f the easement arises by prescription, a
change in the dominant estate calling for a burden upon the
servient land exceeding that devolving upon it by its
customary use during the prescriptive period, if the increased
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use is inseparable from the former use, will operate an
extinguishment of the easement.” 1 Frederick D.G. Ribble,
Minor on Real Property § 110, at 150 (2d ed. 1928) (emphasis
in original).
In Va. Hot Springs Co. v. Lowman, 126 Va. 424, 430, 101
S.E. 326, 328 (1919), we held that the proposed future uses of
a prescriptive easement must be of the “same nature and
character” as those exercised during the prescriptive period
and that an increase “in degree only” would be within the
prescriptive use but only if “no additional burden is put upon
the servient estate.” In McNeil v. Kingrey, 237 Va. 400, 406,
377 S.E.2d 430, 433 (1989), however, we went further and
placed upon the claimant to a prescriptive easement the burden
of showing affirmatively that any proposed change in his use
of the easement will impose no additional burden upon the
servient estate. Indeed, we noted in Mobley v. Saponi Corp.,
215 Va. 643, 645, 212 S.E.2d 287, 289 (1975), that “injunctive
relief is routinely afforded to restrain the overburdening of
easements.”
An increase in the area of the dominant estate increases
the burden of an easement upon the servient estate as a matter
of law. In Clark v. Reynolds, 125 Va. 626, 634, 100 S.E. 468,
470-71 (1919), we held that a party entitled to the use of a
prescriptive easement could not “use it as an easement for the
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benefit of any other place than that for which it was
originally established.” In Robertson v. Robertson, 214 Va.
76, 81, 197 S.E.2d 183, 187 (1973), we held that the owner of
a dominant estate cannot use an easement for that tract to
benefit any additional lands he may own because “such a
result, which would necessarily enlarge the burden on the
original right of way, is impermissible.” Accord, Conrad v.
Strickler, 215 Va. 454, 461, 211 S.E.2d 248, 253 (1975).
Thus, any increase in the burden of a prescriptive easement
upon the servient estate, whether caused by a change of use or
by an increase in the area of the dominant estate, is
prohibited in Virginia.
Here, the burden was upon the complainants to prove, by
clear and convincing evidence, the boundaries of those lands
of their predecessors in title that had become entitled to a
prescriptive easement over the lands of the respondents. The
complainants failed to carry their burden of proof. Instead
of showing the boundaries of the original dominant estate, and
thus enabling the chancellor to restrict the benefit of the
easement to those boundaries, the complainants’ evidence, by
showing that additional land had been annexed to the original
dominant estate, showed an impermissible increase in the
easement’s burden upon the servient estates. The chancellor
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therefore erred in declaring the easement to be "appurtenant
to the property now owned by the complainants."
For the foregoing reason, we will reverse the
chancellor’s decree and enter final judgment for the
respondents.
Reversed and final judgment.
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