PRESENT: All the Justices
PINEY MEETING HOUSE INVESTMENTS, INC.
OPINION BY
v. Record No. 111548 JUSTICE WILLIAM C. MIMS
June 7, 2012
FRED A. HART, JR., ET AL.
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
David H. Beck, Judge
In this appeal, we consider whether the circuit court erred
in sustaining exceptions to the report of a commissioner in
chancery. Specifically, we review the circuit court’s
conclusion that a buried propane tank and well under an easement
for ingress and egress constituted unreasonable interference
with the easement owner’s rights as a matter of law, even if the
improvements did not affect vehicular access. We also consider
whether the circuit court erred in awarding costs and attorney’s
fees to the prevailing party.
BACKGROUND AND PROCEEDINGS BELOW
Fred A. Hart, Jr. and Mary Ann Hart (“the Harts”) filed a
complaint in the Circuit Court of Spotsylvania County against
Piney Meeting House Investments, Inc. (“PMH”). The Harts owned
real property on Lake Anna that included a 30-foot easement.
The Harts’ grantor conveyed to them “an easement and right-of-
way for ingress, egress, and related utilities over the
remaining lands of the party of the first part, said easement
and right-of-way to be thirty (30) feet in width and run from
the property herein conveyed” to State Route 612. PMH later
acquired property adjacent to the Harts’ which was encumbered by
15 feet of the 30-foot wide easement. The Harts alleged that
PMH placed various obstructions in the 15-foot-wide easement area
on PMH’s property, including an electric box, generator, well,
propane tank, trees, and mulch. The Harts alleged that the
presence of the obstructions in the easement negatively affected
their effort to market their property. In its answer, PMH
denied that the obstructions interfered with the Harts’ full use
and enjoyment of the easement.
The circuit court referred the matter to a commissioner in
chancery, who conducted an evidentiary hearing. The Harts
testified that the items obstructed their use of the easement,
and narrowed it in one place to eight feet in width. Mr. Hart
testified that a buyer offered a contract on the Harts’ property
for $675,000 but “backed out of the deal because they were
afraid that they were not going to have full access” due to the
obstructions. On cross-examination, Mr. Hart admitted that the
buried propane tank did not create any impediment, though he
speculated that it would be difficult to access the tank if the
Harts were to pave the easement.
At the conclusion of the hearing before the commissioner,
PMH conceded that the electric box and generator interfered with
the use of the easement, but maintained that the well and
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propane tank did not materially interfere with the Harts’ use of
the easement. In his written report, the commissioner found
that the electric box, the generator, the mulch, and the trees
materially encroached into the easement and significantly
reduced the area of the easement available to the Harts. The
commissioner concluded that PMH “is to be enjoined from
maintaining these encroachments.”
The commissioner found that the well and propane tank were
both located below ground level. However, the well had an
above-ground fixture that was a significant encroachment, and
the propane tank had a cap at ground level. Regarding the
well’s fixture, the commissioner referenced testimony regarding
a modification which would remove the above-ground obstruction
while permitting continuing use of the well. The commissioner
found that PMH should be given a reasonable period, not to
exceed 90 days, (1) to either remove the above-ground well
obstruction or relocate the well and (2) to satisfy the circuit
court the ground-level propane tank cap was strong enough for
vehicular traffic or relocate the tank. The commissioner
ordered that 2/3 of the costs of the proceedings would be borne
by PMH and 1/3 by the Harts.
Only the Harts filed exceptions to the commissioner’s
report, objecting to the findings regarding the well and propane
tank. They argued that pursuant to settled Virginia law, the
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commissioner erred in allowing the fixtures to remain
underground because “‘where a reservation is of a certain
width[,] that cannot be encroached upon, period.’” The Harts
also argued that the well and propane tank created significant
liability questions.
The circuit court thereafter heard argument on the Harts’
exceptions to the report. The Harts argued that they were
entitled to their attorney’s fees because PMH had denied their
request for admission that stated: “Admit that you have no
defenses to the Plaintiff’s claims.” The Harts noted that if a
party fails to admit the truth of any matters requested under
Rule 4:11, the party requesting admission may recover reasonable
expenses, including attorney’s fees, in successfully making the
proof. Rule 4:12(c).
The circuit court sustained the Harts’ exceptions and
ratified the remainder of the report. The court ordered PMH to
remove all items placed in the easement, including the well and
propane tank, and permanently enjoined PMH from placing anything
within the easement which would in any way affect the Harts’ use
of the entire width of the easement.
The court found that pursuant to Rules 4:11(a) and 4:12(c)
the Harts were entitled to recover their attorney’s fees from
PMH in the amount of $6,000. The court also found that the
Harts were entitled to recover their costs from PMH, including
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filing and service fees, the costs of the court reporter, and
the commissioner’s fee.
DISCUSSION
On appeal, PMH argues that the circuit court erred in
sustaining the Harts’ exceptions to the commissioner’s report
because the propane tank and well, as modified by the
commissioner’s directive, would not unreasonably interfere with
the Harts use and enjoyment of the easement for ingress and
egress. PMH also assigns error to the circuit court’s
assessment of all costs of the proceedings against PMH,
including the Harts’ attorney’s fees and the commissioner’s fee.
A. UNREASONABLE INTERFERENCE
We review the circuit court’s sustaining of the Harts’
exceptions to the commissioner’s report in accord with familiar
principles:
While the report of a commissioner in
chancery does not carry the weight of a
jury’s verdict, it should be sustained
unless the trial court concludes that the
commissioner’s findings are not supported by
the evidence. This rule applies with
particular force to a commissioner’s
findings of fact based upon evidence taken
in his presence, but is not applicable to
pure conclusions of law contained in the
report.
Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296 (1984)
(internal citations omitted). Because the circuit court
disapproved of the commissioner’s findings, this Court must
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review the evidence and ascertain whether, under a correct
application of the law, the evidence supports the findings of
the commissioner or the conclusions of the trial court. See id.
at 577, 318 S.E.2d at 296-97. Having heard the testimony and
reviewed the evidence at the hearing, the commissioner found
that the modified well and propane tank would not unreasonably
interfere with the Harts’ use of the easement. The circuit
court should have sustained the commissioner’s conclusion unless
it was not supported by the evidence or was based on an
erroneous application of the law.
The circuit court relied on Pizzarelle v. Dempsey, 259 Va.
521, 526 S.E.2d 260 (2000), and Snead v. C&S Properties Holding
Co., 279 Va. 607, 692 S.E.2d 212 (2010), in reaching its
conclusion that the propane tank and well encroached upon the
Harts’ easement. PMH argues that the circuit court erred in its
reliance on these cases because they address encroachments that
block all or part of an easement, which would not be the case
here after the modifications required by the commissioner.
According to PMH, the circuit court should have analyzed whether
its use was reasonable. By contrast, the Harts interpret
Pizzarelle and Snead to mean that questions of reasonableness
are irrelevant in cases involving platted easements that have a
certain width.
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In Pizzarelle, the owner of the servient estate erected a
fence and planted trees several feet within an easement, but
outside of the gravel driveway used for ingress and egress. 259
Va. at 525, 526 S.E.2d at 262. The circuit court found that the
encroachment was insubstantial and did not warrant injunctive
relief. Id. at 530, 526 S.E.2d at 265. We reversed the circuit
court, holding that “[t]o affirm the circuit court’s denial of
injunctive relief in this case would in effect allow the
[servient tenant] to appropriate a portion of the easement and
reduce a 24-foot easement to one of 19 to 20 feet in width.”
Id. at 531, 526 S.E.2d at 265. We explained: “Unlike some
cases, the question here is not one of ‘reasonableness’ or
whether the easement is now ‘less useful or less convenient.’”
Id. (quoting Willing v. Booker, 160 Va. 461, 466, 168 S.E. 417,
418 (1933)).
In Snead, the servient landowner erected a chain-link
fence, placed signs, and installed riprap within the bounds of a
60-foot-wide easement, narrowing the effective width to 40 feet.
279 Va. at 610-11, 692 S.E.2d at 213-14. The circuit court held
that the placement of these items did not unreasonably interfere
with the use of the easement because the objects did not block
the use of the gravel road in the easement. Id. at 612, 692
S.E.2d at 214. Relying on Pizzarelle, we reversed the circuit
court, holding that the objects created “a material encroachment
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on the dominant owners’ rights because a significant portion of
the easement would be rendered unusable for ingress and egress
if injunctive relief were denied.” Id. at 616, 692 S.E.2d at
216 (internal quotation marks and alteration omitted).
These cases establish that a servient landowner may not
effectively narrow the defined width of an easement by placing
obstructions amounting to “a material encroachment on the
dominant owner[‘s] rights,” 259 Va. at 530, 526 S.E.2d at 265
(emphasis added), even when the encroachment does not interfere
with ingress and egress at that time. The Harts, however, do
not contend that the propane tank and well, as modified, will
effectively narrow their 30-foot easement. Rather, they rely on
our observation in Willing that “where a reservation is of a
certain width, that width cannot be encroached upon.” 160 Va.
at 465, 168 S.E. at 418. In the Harts’ view, every
encroachment, no matter how minor, is material when the easement
is of an express width.
We do not agree. Our cases make clear that the owner of a
servient estate may still make reasonable use of land burdened
by an easement of defined width. See id. at 467-68, 168 S.E. at
419 (observing that servient tenant may place half of a fence of
reasonable dimensions on dominant estate). An encroachment that
does not narrow the width of an easement or unreasonably
interfere with its use is not a material encroachment.
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The Harts made no allegation that the tank and well would
narrow their easement. Thus, the proper inquiry for the
commissioner and the circuit court was whether the buried
propane tank and well, if modified, would unreasonably interfere
with the Harts’ use. As we explained in Willing, “[w]hether or
not [an] encroachment makes the way less useful or less
convenient is usually a jury question,” and “the test is
reasonableness.” Id. at 466, 168 S.E. at 418. As finder of
fact, the commissioner concluded that the improvements would not
constitute unreasonable interference if the well were modified
and the propane tank were tested to ensure suitability for
vehicular access. The circuit court should have ratified this
conclusion unless it was not supported by the evidence. Hill,
227 Va. at 576-77, 318 S.E.2d at 296.
The Harts do not argue that the commissioner’s finding is
not supported by the evidence. Rather, they argue that even if
PMH modified the well and took precautions with the propane
tank, the improvements still would constitute unreasonable
interference with the easement because of the possibility of a
“catastrophe” occurring. The Harts cite the prospect of the
propane tank exploding and the well cracking and becoming
contaminated. According to the Harts, the tank and well present
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risks of harm and liability to them and their invitees, and
these risks lowered the value of their property. 1
The Harts’ arguments on appeal, however, are speculative.
They are not based on any evidence adduced at the hearing. We
will limit our review to the facts adduced before the
commissioner. 2 PMH presented evidence that the fixtures could be
modified and tested to ensure normal vehicular access with the
approval of the local health department. By contrast, the
Harts’ only evidence relevant to their argument on appeal
related to a potential buyer’s concern about the narrowing of
the easement, not an exploding propane tank or collapsing well.
Upon review of the record and under a correct application
of the controlling law, we find that the evidence supports the
findings of the commissioner and not the conclusions of the
circuit court. Id. at 577, 318 S.E.2d at 296-97. The circuit
court erred in sustaining the Harts’ exceptions.
B. AWARD OF COSTS AND ATTORNEY’S FEES
1
Because the issue is not properly before us, we do not
decide whether conduct by a servient landowner affecting the
value of the dominant estate alone constitutes a basis for a
finding of unreasonable interference and awarding injunctive
relief.
2
The Harts advance no evidence or argument regarding state
regulations or local ordinances relating to wells or propane
tanks being located in an easement. We do not address the issue
of whether it is permissible under state or local regulations to
bury a propane tank or drill and maintain a well in an easement
used for vehicular access.
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We now turn to PMH’s argument regarding the imposition of
costs and attorney’s fees. Because the circuit court’s basis
for the award of attorney’s fees was distinct from its decision
to award costs, we will address the issues separately.
1. COSTS
It is well-established that “[i]n equity, the trial court
has discretion in the award of costs; nevertheless, we have
found an abuse of that discretion if costs are not awarded in
favor of the party or parties substantially prevailing.” Smith
v. Woodlawn Constr. Co., 235 Va. 424, 431, 368 S.E.2d 699, 703
(1988) (internal citations and quotation marks omitted).
Because the circuit court erred in ordering PMH to remove the
propane tank and well from the easement, the Harts did not
prevail entirely in their suit. The Harts did, however,
substantially prevail because the commissioner concluded that
the electric box, generator, trees and mulch interfered with the
use of the easement and ordered their removal. The circuit
court ratified those findings. Consequently, the circuit court
did not abuse its discretion in awarding costs to the Harts.
2. ATTORNEY’S FEES
The “American rule” provides that “‘attorneys’ fees are
[ordinarily] not recoverable by a prevailing litigant in the
absence of a specific contractual or statutory provision to the
contrary.’” Nusbaum v. Berlin, 273 Va. 385, 400, 641 S.E.2d
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494, 501 (2007). The circuit court awarded the Harts their
attorney’s fees pursuant to Rule 4:12(c) because PMH failed to
admit that it “[had] no defenses to the [Harts’] claims.” We
review the circuit court’s decision to award attorney’s fees for
an abuse of discretion. Erie Ins. Exchange v. Jones, 236 Va.
10, 14, 372 S.E.2d 126, 128 (1988).
Rule 4:12(c) states:
If a party fails to admit the genuineness of any
document or the truth of any matter as requested
under Rule 4:11, and if the party requesting the
admissions thereafter proves the genuineness of
the document or the truth of the matter, he may
apply to the court for an order requiring the
other party to pay him the reasonable expenses
incurred in making that proof, including
reasonable attorney's fees. The court shall make
the order unless it finds that (1) the request
was held objectionable pursuant to Rule 4:11(a),
or (2) the admission sought was of no substantial
importance, or (3) the party failing to admit had
reasonable ground to believe that he might
prevail on the matter, or (4) there was other
good reason for the failure to admit.
Rule 4:11(a) provides, in relevant part, that “[a] party
may serve upon any other party a written request for the
admission . . . of the truth of any matters within the scope of
Rule 4:1(b) set forth in the request that relate to statements
or opinions of fact or of the application of law to fact.”
The Harts’ request for admission did not comply with this
rule. Their argument, in conjunction with Rule 4:12(c), would
render the American Rule of attorney’s fees defunct in many
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contested proceedings when the requesting party ultimately
prevailed on the merits of a case. We find that the Harts’
request was not a proper discovery request under Rule 4:11 and
therefore that “there was other good reason for the failure [of
PMH] to admit” that it had no defenses. Rule 4:12(c)(4).
Consequently, we hold that the circuit court abused its
discretion in awarding attorney’s fees to the Harts.
CONCLUSION
For the reasons stated, we will reverse the judgment of the
circuit court insofar as it sustained the Harts’ exceptions
regarding the buried propane tank and well. We will affirm the
circuit court in its award of costs to the Harts and reverse the
circuit court in its award of attorney’s fees to the Harts. We
will remand the case to the circuit court for further
proceedings consistent with this opinion.
Reversed in part,
affirmed in part,
and remanded.
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