Joseph T. Buxton v. Roger A. Murch

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Clements
Argued at Richmond, Virginia
JOSEPH T. BUXTON, III, AND
MARY WAKEFIELD BUXTON
MEMORANDUM OPINION * BY
v. Record No. 1805-01-2 JUDGE JEAN HARRISON CLEMENTS
JULY 2, 2002
ROGER A. MURCH AND
URSULA B. MURCH
FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY
Ernest P. Gates, Judge Designate
J. Gray Lawrence, Jr. (Faggert & Frieden,
P.C., on briefs), for appellants.
Roger G. Hopper for appellees.
Joseph T. Buxton, III, and Mary Wakefield Buxton appeal
from a final decree of the trial court holding them in civil
contempt of court and awarding Roger A. Murch and Ursula B.
Murch $10,283.25 for their attorney's fees and costs expended as
a result of the Buxtons' contemptuous conduct. On appeal, the
Buxtons contend the trial court erred in (1) finding them in
contempt and (2) awarding the Murches their attorney's fees and
costs. For the reasons that follow, we affirm the trial court's
judgment.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
On March 18, 1994, the trial court entered a final decree in
a dispute between the Buxtons and Murches affirming the report of
the commissioner in chancery dated November 1, 1993. That decree
established the existence of an appurtenant easement, which had
been created by court decree in 1939, over the "Street" depicted
on the 1952 Stiff survey plat "as a right-of-way to the
Rappahannock River" in favor of the Murches' non-waterfront
property on Kent Street and "all other non-waterfront lots or
parcels on Obert Avenue, Kent Street and Elliott Street in the
Richardson Subdivision in the Town of Urbanna." The 1994 decree
also permanently enjoined the Buxtons, the owners of the
waterfront property adjoining the "Street" to the east, from using
the easement and from "denying, impeding or otherwise hindering in
any manner or way the use and enjoyment of said easement by the
owners of said non-waterfront lots."
On appeal, the Supreme Court affirmed the trial court's
judgment that an express easement had been created by court decree
in 1939 and that "the easement established in 1939 is now located
across the land designated as 'Street' on the 1952 Stiff survey."
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Buxton v. Murch, 249 Va. 502, 508, 457 S.E.2d 81, 84-85 (1995).
The Supreme Court did, however, "reverse and annul that portion of
the [trial court's] judgment that restrict[ed] the use of the
easement to owners of non-waterfront lots and that portion of the
injunction which prohibit[ed] the Buxtons and their successors
from using the easement." Id. at 510, 457 S.E.2d at 85.
On July 24, 2000, the Murches filed a verified "Petition for
Show Cause Order for Contempt" against the Buxtons for interfering
with their use of the easement. The Buxtons moved for a bill of
particulars, which the Murches filed. After viewing the subject
property, hearing evidence ore tenus, and considering the
arguments of counsel, the trial court entered a final decree on
June 21, 2001, setting forth the permissible uses of the express
easement by the Murches and other qualified lot owners and finding
that the Buxtons had "denied the Murches the use of the Easement."
Specifically, the court ruled
[t]hat the Murches and the Lot Owners [had]
the unhindered and unobstructed right to use
the Easement to boat, to swim, and to use the
River for lawful purposes; they [had] the
right to drive vehicles across the Easement,
the right to park vehicles on it for thirty
(30) minutes at a time, the right to
construct a walkway and/or stairs down the
bank and over the riprap that the Buxtons
installed which prevents people from safely
accessing the River, and the right to put a
platform there for the launching and
retrieving of small boats—subject to all
necessary governmental permits.
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The trial court then found the Buxtons had
taken complete control of the Easement for
their own use, . . . set a basketball goal in
concrete upon it, . . . extended their yard
over it and planted flowers and shrubs on it,
regularly park[ed] their vehicles on it,
. . . caused feces to collect upon it, and
. . . completely confiscated the use of the
Easement from the Murches.
Accordingly, the court held the Buxtons in contempt and
ordered them to pay the Murches $10,283.25 to cover the attorney's
fees and costs incurred by the Murches as a result of the Buxtons'
failure to comply with the court's injunction. This appeal
followed.
II. FINDING OF CONTEMPT
"Where the court's authority to punish for contempt is
exercised by a judgment rendered, its finding is presumed correct
and will not be reversed unless plainly wrong or without evidence
to support it." Brown v. Commonwealth, 26 Va. App. 758, 762, 497
S.E.2d 147, 149 (1998). On appeal, we view the evidence in the
light most favorable to the Murches, the parties prevailing below.
See Hayes v. Aquia Marina, Inc., 243 Va. 255, 257, 414 S.E.2d
820, 821 (1992); Glanz v. Mendelson, 34 Va. App. 141, 148, 538
S.E.2d 348, 351-52 (2000).
The Buxtons advance several arguments, on appeal, in support
of their claim that the trial court erred in finding them in
contempt. They first argue that, because the trial court's 1994
decree enjoining them from interfering in the use of that easement
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as a right-of-way to the Rappahannock River "did not explicitly
. . . prohibit specific conduct and failed to clearly define the
duties or obligations imposed on" them, it may not serve as the
basis for a finding of contempt. The 1994 decree, the Buxtons
assert, did not indicate how the owners of non-waterfront lots
were entitled to use and enjoy the subject right-of-way to access
the Rappahannock River. 1 Hence, the Buxtons argue, the decree did
not make clear what use and enjoyment of the easement the Buxtons
were prohibited from "denying, impeding or otherwise hindering."
Accordingly, they conclude, the 1994 decree is not "a proper
foundation for a contempt proceeding."
We find the Buxtons' premise erroneous. While it is true
generally that, "in instances where [an] order does not explicitly
direct, mandate or prohibit specific conduct, it is insufficient
to sustain a finding of contempt," Mardula v. Mendelson, 34 Va.
App. 120, 128, 538 S.E.2d 338, 342 (2000), here, the 1994 decree,
as modified by the Supreme Court, explicitly proscribed specific
conduct. As modified, it expressly prohibited the Buxtons from
"denying, impeding or otherwise hindering in any manner or way the
use and enjoyment of [the] easement by the owners of [the
appropriate] lots." The decree established the easement "over and
1
The Buxtons concede the Murches have the right to use the
easement to access the Rappahannock River by foot and insist
they have not interfered with that right. The Buxtons argue,
however, that the Murches' rights in the easement do not extend
to driving cars and trucks on the easement.
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across the 'Street' as shown on [the 1952 Stiff survey plat] as a
right-of-way to the Rappahannock River." The 1952 Stiff survey
plat not only identified the parcel over which the easement runs
as a "Street," it depicted the "Street" as being thirty feet wide
and connecting Kent Street, an existing road in the Richardson
Subdivision, to the Rappahannock River. Furthermore, nothing in
the decree or referenced plat restricted the use of the easement
to foot traffic. See Cushman Corp. v. Barnes, 204 Va. 245, 253,
129 S.E.2d 633, 639 (1963) (holding that "[w]hen a right of way is
granted over land . . . and the instrument creating the easement
does not limit the use to be made thereof, it may be used for any
purpose to which the dominant estate may then, or in the future,
reasonably be devoted").
We hold, therefore, that, because it was identified on the
survey plat as being thirty feet in width and a roadway, rather
than a path, trail, or walkway, for example, the easement
established by the 1994 decree was clearly intended to accommodate
general vehicular traffic, including motor vehicles, as well as
foot traffic. No other construction of the decree is reasonably
possible. Accordingly, we hold that the 1994 decree is
sufficiently explicit, in terms of setting forth the specific
conduct from which the Buxtons are enjoined, to serve as a basis
for a finding of contempt.
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The Buxtons further argue that the evidence presented to the
trial court was insufficient to prove that the Buxtons were guilty
of civil contempt. We disagree.
In determining whether the Buxtons had violated the 1994
decree, the dispositive issue before the trial court was whether
the Buxtons had denied, impeded, or hindered "in any manner or way
the use and enjoyment" of the designated easement by the Murches.
The record established that the Buxtons routinely parked their
vehicles on the easement, planted flowers, shrubs, and trees
across the easement, and placed a basketball goal in concrete on
the easement, all of which blocked the Murches from using the
easement to access the Rappahannock River by car or truck. We
find that this evidence supports the trial court's finding that
the Buxtons violated the injunction. We hold, therefore, that the
evidence was sufficient, as a matter of law, to prove the Buxtons
were in contempt of court.
The Buxtons also argue that the trial court erred in
concluding that the title to the land underlying the easement was
irrelevant to the issue of whether the Buxtons were in contempt of
court. We disagree.
As the Supreme Court noted in its opinion in this case, the
parties stipulated at the commissioner's hearing "that title to
the property underlying the claimed easement was 'beyond the
ambit of this case.'" Buxton, 249 Va. at 504, 457 S.E.2d at 82.
Indeed, the Buxtons acknowledged at the contempt hearing that the
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title to the property underlying the easement was not at issue and
concede on appeal that the title to the property was not at issue
before the commissioner in chancery, the trial court, or the
Supreme Court when the injunction in this case was entered and
then modified on appeal. Thus, the trial court, charged with
determining whether the Buxtons were in contempt of court,
correctly found that the issue of the underlying title was not
relevant to the issue of contempt before it.
The Buxtons further argue the trial court erred "in going
outside the bill of particulars in finding the Buxtons guilty of
contempt." We disagree.
In reviewing the record, we find that the trial court did not
"go outside" the Murches' bill of particulars in finding the
Buxtons in contempt of court. The bill of particulars, as well as
many of the exhibits attached to it, included numerous references
to the Buxtons' "vehicles, basketball goal, and other
obstructions" impeding the Murches' "free and unobstructed use of
the right-of-way to the [river]." The trial court based its
finding of contempt on the fact that the Buxtons "set a basketball
goal in concrete upon [the easement], . . . extended their yard
over it and planted flowers and shrubs on it, regularly park[ed]
their vehicles on it, [and] . . . caused feces to collect upon
it." Accordingly, we find that, in holding the Buxtons in
contempt, the trial court did not "go outside" the allegations
made by the Murches in the bill of particulars.
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Finally, the Buxtons argue the trial court erred when, in
construing the express easement at issue, it ruled the Murches and
other lot owners had the right to park on the easement, to
construct a walkway and stairs on it, "and, especially, to build
beyond the right-of-way and into the river." Similarly, the
Buxtons contend the trial court erred in not granting their
motion to enjoin the Murches from exercising such "expansive
rights."
We first note that the decree entered by the trial court says
nothing about building any structure "beyond the right-of-way and
into the river." Rather, in construing the express easement at
issue, the trial court held that the Murches and other lot owners
had the right, in using the easement to access the river, to drive
on the easement, to park their vehicles for up to thirty minutes
on the easement, "to construct a walkway and/or stairs down the
bank and over the riprap that the Buxtons installed which prevents
people from safely accessing the River, and . . . to put a
platform there [i.e., "over the riprap"] for the launching and
retrieving of small boats." 2 (Emphasis added.) Such a platform,
built over the riprap, would not exceed the physical limits of the
express easement, which is shown on the 1952 Stiff survey plat as
extending fully to the river itself. Accordingly, we need not
further address the Buxtons' claim that the trial court erred in
2
The riprap was placed along the bank of the river to
prevent erosion.
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granting the Murches and other lot owners the right "to build
beyond the right-of-way and into the river."
Likewise, having previously addressed the issue of driving
on the easement, we need not repeat that discussion here.
Turning, then, to the Buxtons' argument that the trial
court erred in permitting the lot owners to park and build
structures on the easement, we observe that the applicable legal
principle was stated in Hayes, 243 Va. at 258-59, 414 S.E.2d at
822, as follows:
As a general rule, when an easement is
created by grant or reservation and the
instrument creating the easement does not
limit the use to be made of it, the easement
may be used for "any purpose to which the
dominant estate may then, or in the future,
reasonably be devoted." Cushman Corporation
v. Barnes, 204 Va. 245, 253, 129 S.E.2d 633,
639 (1963). Stated differently, an easement
created by a general grant or reservation,
without words limiting it to any particular
use of the dominant estate, is not affected
by any reasonable change in the use of the
dominant estate. Savings Bank v. Raphael,
201 Va. 718, 723, 113 S.E.2d 683, 687 (1960)
(citing Ribble, 1 Minor on Real Property
§ 107, at 146 n.2 (2d ed. 1928)). However,
no use may be made of the easement which is
different from that established at the time
of its creation and which imposes an
additional burden upon the servient estate.
Cushman Corporation, 204 Va. at 253, 129
S.E.2d at 639-40.
Here, neither the 1939 decree creating the original easement
for access to the Rappahannock River nor the 1994 decree
establishing the easement for access to the river over the
"Street" depicted on the 1952 Stiff survey plat contained terms of
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limitation as to the easement's use. Likewise, both instruments
clearly indicated that the easement was intended to allow the lot
owners in the Richardson Subdivision to access the river. In
addition, the record reflects that the easement was historically
used by the lot owners in the subdivision to access the river for
recreational purposes, until, as the Supreme Court noted, "[i]n
1984, the Buxtons apparently prohibited use of the "Street" by
others." Buxton, 249 Va. at 506, 457 S.E.2d at 83.
Furthermore, the evidence presented supports the conclusion
that the parking of vehicles on the easement for up to thirty
minutes as well the construction of a walkway, stairs, and
platform down the bank and over the riprap are reasonable uses of
the easement for the purpose of accessing the river. As the
trial court noted, parking for thirty minutes would allow those
accessing the river time to unload their boats or supplies
without overburdening others' use of the easement.
Additionally, the stairs, walkway, and platform would allow the
users of the easement to safely access the river over the
hazardous riprap along the bank of the river.
The evidence further supports the conclusion that the
construction of the walkway, stairs, and platform would "not,
'in and of itself,' impose an 'additional burden' upon the
easement, even though the 'degree of burden' may be increased."
Hayes, 243 Va. at 260, 414 S.E.2d at 823 (quoting Cushman
Corporation, 204 Va. at 253, 129 S.E.2d at 640). Accordingly,
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such improvements to the easement are permissible. See id. at
261, 414 S.E.2d at 823 (holding that "the owner of a dominant
estate has the right to make reasonable improvements to an
easement, so long as the improvement does not unreasonably
increase the burden upon the servient estate").
For these reasons, we hold that the trial court did not err
in construing the easement established by the 1994 decree as
allowing the Murches and other lot owners to park their vehicles
for up to thirty minutes on the easement and to build a walkway,
stairs, and a platform on the easement in order to safely access
the river. Because such uses of the easement are permissible,
we further hold the trial court did not err in denying the
Buxtons' motion to enjoin those uses.
III. ATTORNEY'S FEES AND COSTS
The Buxtons contend the trial court erred in awarding the
Murches attorney's fees and costs. They argue, firstly, that
"[n]o sanctions should have been awarded against them" because
they did not violate a court order and, secondly, that the fee
application of the Murches' counsel was "insufficient as a
matter of law." We disagree with both arguments.
Having affirmed the trial court's finding that the Buxtons
violated the trial court's 1994 decree, as modified by the
Supreme Court, we need not address the Buxtons' first argument,
except to note that the trial court "was justified in imposing
sanctions on [the Buxtons] by awarding counsel fees to [the
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Murches] in order to indemnify [them] for the expenses incurred
in investigating and prosecuting the contempt proceeding and to
restore the status quo as far as possible." Arvin, Inc. v. Sony
Corp. of America, 215 Va. 704, 706, 213 S.E.2d 753, 755 (1975).
With regard to the Buxtons' second argument that the fee
application of the Murches' counsel was "insufficient as a
matter of law," we find that the evidence in the record supports
the trial court's award of attorney's fees and costs. The trial
court clearly indicated in its ruling from the bench that its
award would comprise "the costs that the Murches have expended
and will expend as a result" of the Buxtons' contemptuous
conduct. At the court's direction, counsel for the Murches
submitted an affidavit of the Murches' attorney's fees and costs
along with a detailed summary showing the time, effort, and
expenses he spent investigating and prosecuting the proceedings
directly resulting from the Buxtons' violation of the
injunction. Upon considering the affidavit and summary, and
counsel's argument and representations related thereto, the
trial court awarded the Murches $10,283.25. We conclude that
there was, as a matter of law, sufficient evidence presented
"upon which [an] able and experienced trial judge could arrive
at a reasonable fee." Id. at 707, 213 S.E.2d at 755.
Accordingly, we will affirm the trial court's decree finding
the Buxtons in civil contempt of court and awarding the Murches
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their attorney's fees and costs expended as a result of the
Buxtons' contemptuous conduct.
Affirmed.
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