PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims,
and Powell, JJ., and Russell, S.J.
MAC R. CLIFTON, ET AL.
OPINION BY
v. Record No. 121232 SENIOR JUSTICE CHARLES S. RUSSELL
September 12, 2013
EVELYN ROSE WILKINSON
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Isaac St. C. Freeman, Judge
In this appeal we revisit the requirements for the creation
of an easement by necessity. The question arises in the context
of a parcel that became landlocked by the exercise of the power
of eminent domain, followed by the construction of a limited-
access highway over the land condemned.
FACTS AND PROCEEDINGS
In 1957, special commissioners, appointed by the circuit
court in a partition suit, conveyed to C. T. Wilkinson, Jr. an
18.35-acre tract of land in Washington County. The tract
adjoined Route 704, a public highway. In 1961, the State
Highway Commissioner instituted a condemnation proceeding,
acquiring a strip of land through the 18.35-acre tract for the
construction of Interstate Highway I-81, a limited-access
highway. The taking for the highway contained 3.83 acres,
leaving two residue parcels: a 4.88-acre parcel north of I-81
that retained frontage on Route 704 and a 9.64-acre parcel south
of I-81 (the ten-acre parcel) that became landlocked as a result
of the taking. The condemnation commissioners awarded C. T.
Wilkinson, Jr. $1450 for the land taken and $2450 for damages to
the residue property.
After the condemnation, Mr. Wilkinson gained access to the
ten-acre tract for farming purposes by renting a neighboring 18-
acre tract now owned by Mac R. Clifton, his wife Carol Clifton,
and his sister, Beatrice Jones (the Cliftons). The Clifton
property had access to Route 704. Mr. Wilkinson, with the
permission of the Cliftons, used an unpaved lane across the
Clifton property to obtain access to his landlocked ten-acre
residue parcel. That arrangement continued for 45 years. In
2006, Mr. Wilkinson discontinued farming and ceased to rent the
Clifton property. Mr. Wilkinson died in March 2007, and title
to his property passed to his widow, Evelyn Rose Wilkinson (the
complainant). In the fall of 2008, the Cliftons, having failed
to reach an agreement with the complainant for a purchase of the
ten-acre parcel, terminated her permissive use of the access
lane and blocked it.
The complainant brought this action in the circuit court,
seeking a declaratory judgment that she was entitled to use of
the access lane by reason of a prescriptive easement or, in the
alternative, an easement by necessity. Complainant's counsel
subsequently withdrew the claim for a prescriptive easement and
the court received evidence relating to the claim for an
easement by necessity.
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By a letter opinion, the court ruled that the complainant
was entitled to an easement by necessity over the access lane.
The court summarized the prerequisites for such an easement as:
(1) common ownership of the dominant and servient tracts "at
some time in the past," (2) the easement must be "reasonably
necessary to the enjoyment of the land," which fact must be
proved by clear and convincing evidence, and (3) there is no
other means of access (to the landlocked parcel), even one less
convenient or more expensive to develop. Finding that the
complainant had met those requirements, the court entered an
order declaring that the complainant had a right of ingress and
egress over the access lane and enjoining any obstruction
thereof. We awarded the Cliftons an appeal.
ANALYSIS
The dispositive question presented by this appeal is one of
law. Accordingly, we apply a de novo standard of review.
Mulford v. Walnut Hill Farm Group, LLC, 282 Va. 98, 109, 712
S.E.2d 468, 475 (2011).
Implicit in the conclusion reached by the circuit court is
a finding that the Clifton property and the Wilkinson property
were, "at some time in the past," owned by the same person. We
find no evidence in the record to support that finding. The
issue whether such unity of title ever existed, however, is
immaterial in this case because the necessity for an easement of
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ingress and egress did not arise when any such unity of title
was severed.
Vast tracts of land in Virginia were at some time in the
past held by a single individual, 1 and historic common ownership
underlies many, if not most, adjoining parcels today. That fact
alone is not sufficient to justify an easement by necessity over
neighboring lands to the owner of a parcel that becomes
landlocked by the exercise of the power of eminent domain.
In this case, the necessity for an easement of ingress and
egress to the ten-acre parcel arose in 1961 when the State
Highway Commissioner acquired 3.83 acres for the construction of
an interstate limited-access highway. The Commissioner's
declaration of taking, received as an exhibit in the present
1
The royal grant to the predecessors of Thomas, Lord Fairfax,
effective in 1663, embraced approximately five million acres
comprising all the land between the Potomac and Rappahannock
Rivers from the Chesapeake Bay westward to a line connecting the
sources of those rivers. See Fairfax's Devisee v. Hunter's
Lessee, 11 U.S. (7 Cranch) 603, 604 (1812); Maryland v. West
Virginia, 225 U.S. 1, 10 (1912); O'Dell v. Stegall, 703 S.E.2d
561, 570 (W. Va. 2010). See also David L. Ingram, The Virtual
Museum of Surveying, History of the Fairfax Line,
http://www.surveyhistory.org/the_fairfax_line1.htm (last visited
July 9, 2013). The "Fairfax Line," connecting the sources of
the two rivers, was surveyed in 1746 by commissioners appointed
by the Governor's Council in Williamsburg. Using magnetic
compass and chain, they ascertained its length to be
approximately 76 miles. That linear distance was verified in
1999 by surveyors using modern methods. The line forms several
county boundaries and a part of the boundary between Virginia
and West Virginia. Its northern point is the meeting point of
three counties in West Virginia. Id.
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case, recites that the taking was made for the purpose of the
construction of "Route 81, a Limited Access Highway, as defined
by 33-37, Code of Virginia of 1950." Code § 33-37, then in
effect, provided:
A limited access highway is defined as a
highway especially designed for through
traffic, over which abutters have no easement
or right of light, air or access to by reason
of the fact that their property abuts upon such
limited access highway. 2
Therefore, the ten-acre parcel became landlocked by the
Commissioner's highway taking and not by any action taken by any
present or former owner of either the Clifton or the Wilkinson
properties or any common owner of both.
Owners of property damaged by the exercise of the power of
eminent domain are entitled to just compensation by the self-
executing provisions of Article I, Section 11 of the
Constitution of Virginia. Gray v. Virginia Sec'y of Transp.,
276 Va. 93, 104, 662 S.E.2d 66, 72 (2008). Thus, C. T.
Wilkinson, Jr. sought and received an award of damages in the
1961 condemnation proceeding to compensate him for the
2
Former Code § 33-37 was repealed effective October 1, 1970.
See 1970 Acts ch. 322. The statutory language is identical to
the language now appearing in Code § 33.1-57, which has been in
effect since October 1, 1970.
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diminution in the value of his residue property caused by the
taking.
A right of way by necessity arises from an
implied grant or implied reservation. Stated
differently, it is an easement implied upon a
conveyance of real estate. To establish such a
right, the alleged dominant and servient tracts
must have belonged to the same person at some
time in the past. The right is based upon the
idea that whenever one conveys property, he
conveys that which is necessary for the
beneficial use of the land and retains that
which is necessary for the beneficial use of the
property he still possesses.
Thus, in the case of an implied grant, an
easement is acquired by a grantee over the
grantor's property when the land conveyed is
either entirely surrounded by property of the
grantor or else is bordered in part by the land
of a stranger and in part by lands of the
grantor. Under either situation, the grantee
obtains a way of necessity over the grantor's
property because otherwise the land conveyed
would be inaccessible and useless.
Middleton v. Johnston, 221 Va. 797, 802-03, 273 S.E.2d 800, 803
(1981) (citations omitted).
Although we stated above that both tracts "must have
belonged to the same person at some time in the past," the
context makes clear that an easement by necessity arises only
when the grantor of the dominant tract conveys it to another
without providing any right of access to it. It does not arise
when a former unity of title has been severed between two tracts
without impairing any right of access to either tract.
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We made this distinction explicit in American Small
Business Investment Co. v. Frenzel, 238 Va. 453, 456, 383 S.E.2d
731, 734 (1989):
A right of way by necessity is based on the
theory that when a grantor conveys property he
does so in a manner which will allow beneficial
use of both the 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 the necessity arise simultaneously with
the conveyance. If the conveyance does not
preclude the beneficial use of either the
property conveyed or the property retained, an
implied grant or reservation is unnecessary.
The necessity cannot arise subsequent to the
conveyance because "the necessity referred to
is the subjective necessity of the inference
that the parties so intended at the time of the
grant" or reservation.
To establish a right of way by necessity
certain conditions must be met. First, the
land must have been under common ownership at
some time and this unity of title must have
been severed. The severance must have given
rise to the need for the right of way.
(Citations omitted, emphasis in original.)
CONCLUSION
Because the ten-acre tract did not become landlocked by a
conveyance from a former owner severing a former unity of title,
no implied grant of a right of ingress and egress arose.
Therefore, a former common ownership of the dominant and
servient tracts, if such unity existed in the past, is
immaterial. The ten-acre tract suffered damages by the taking
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of its access rights by eminent domain. Those damages were
compensable in the condemnation proceeding in 1961, but did not
give rise to any implied grant of access rights over the lands
of others.
For the foregoing reasons, we will reverse the judgment of
the circuit court and enter final judgment here for the
Cliftons.
Reversed and final judgment.
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