Mulford v. Walnut Hill Farm Group, LLC

Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Russell and Lacy, S.JJ.

GARDINER S. MULFORD, ET AL.

v. Record No. 100333 OPINION BY JUSTICE WILLIAM C. MIMS
June 9, 2011
WALNUT HILL FARM GROUP, LLC

FROM THE CIRCUIT COURT OF CULPEPER COUNTY
J. Howe Brown, Jr., Judge

In this appeal we consider whether the circuit court

erred in finding that appellant Gardiner S. Mulford

(“Mulford”) did not have a legal right to access property that

he owned in Culpeper County.

FACTS

We will state the facts in the light most favorable to

Walnut Hill Farm Group, (“Walnut Hill”) the prevailing party

below. Prospect Dev. Co. v. Bershader, 258 Va. 75, 80, 515

S.E.2d 291, 294 (1999). We recite only those facts relevant

to the issues presented in this appeal. Patel v. Anand,

L.L.C., 264 Va. 81, 83, 564 S.E.2d 140, 142 (2002).

In 2006, Mulford, a real estate broker, purchased a tract

of land comprised of 78.26 acres (“the “property”) in

southeastern Culpeper County. Mulford purchased the property

after being advised by the seller that it might be landlocked

and reviewing an appraisal that concluded an access easement

would need to be acquired. The appraisal also reflected that
the property, as shown on Culpeper Tax Map 55-B, was

subdivided for residential development into eighteen lots,

zoned A-1, of approximately four acres each. 1

In the real estate contract, the parties struck out, and

Mulford initialed, language guaranteeing an easement for

access. The seller conveyed the property to Mulford by

special warranty deed with a quitclaim as to any such

easement. 2

Mulford had visited the property in 2002 to determine if

there was access to a public road. During that visit, he

discovered the sunken remains of an old plank road (“the

roadbed”), now grown over, and walked from Route 610 to the

property along it. Based on this discovery, Mulford believed

there was an easement to access the property.

Mulford conducted his own title search of the property

and also purchased title insurance, issued in July 2006, which

ensured a right of access by way of a roadway appearing in the

various plats and corresponding to the roadbed he discovered

during his visit in 2002. The chain of title, dating back to

1
The date of the county’s approval of the subdivision is
not in the record. However, Mary Leftwich, owner of an
adjoining property, testified that the property was subdivided
in the early 1960s.
2
By deed dated December 11, 2006, Mulford conveyed the
property to Mulford @ Godfreys, L.L.C., of which he was the
sole member.

2
1833, indicated a roadway corresponding generally to the one

Mulford had seen, with a variety of names, including the

Brandy Road, Thornton Road, Old Stony Ford Road,

Fredericksburg Plank, and Bundytown Road.

As it appears in the various title documents, the roadway

is nearly two miles long and traverses farms and undeveloped

land between Routes 610 and 724 to the south, and Route 672 to

the north. Between Mulford’s tract and Route 610, the visible

roadbed traverses land owned by Walnut Hill. On the plats in

both Mulford’s and Walnut Hill’s chains of title, the roadway

appears to provide the sole means of ingress and egress for

the Mulford property.

The property and that portion of Walnut Hill’s tract that

is east of the roadway were once part of a much larger estate.

Prior to 1866, William Redd owned approximately 925 acres on

the east side of the roadway, which he labeled “Brandy Road”

on the plat attached to his will. Pursuant to his will, the

land was severed into six tracts, including a timber dower

along the roadway. 3 The timber dower, which later became known

3
Joy Herndon, one of Mulford’s expert witnesses,
explained that Redd’s widow “elected or was instructed to take
her portion of the estate through this partition.” Because
the tract set aside for her did not have timber needed for
heat, she also was allotted this additional tract for timber.
The widow’s tract does not adjoin the timber dower, and the
roadway does not appear on the plat to have provided the means
of access from the widow’s tract to the timber dower.

3
as Godfrey’s Retreat, is the property that Mulford purchased

in 2006. Another tract, identified as “Son No. 3” in the 1866

plat, bordered the dower tract to the south and the roadway to

the east. It is the origin of title for that portion of

Walnut Hill’s tract east of the road.

After the purchase, Mulford visited the property on

horseback. He testified that the roadbed was grown over with

“[s]aplings and stickers and brush.” He began preparing to

clear the roadbed, including putting stakes in the ground to

keep vehicles from using it. Mulford testified that he

learned from a neighboring landowner that Walnut Hill

disapproved of his activities.

Shortly thereafter, Mulford received a letter from Daniel

J. LaBriola, managing partner of Walnut Hill. LaBriola wrote

that he had learned Mulford was trespassing on Walnut Hill’s

property and cutting standing timber. He advised Mulford to

cease trespassing immediately. Mulford responded with a

letter informing LaBriola that he would exercise what he

asserted to be his deeded right of way between Route 672 and

724 “to the fullest degree.”

Mulford continued to access his property via the roadbed.

Walnut Hill posted trespass notices on its property. One of

the signs read: “NO TRESPASSING. READ THIS SIGN: THIS

PROPERTY IS OWNED BY THE WALNUT HILL FARM GROUP NOT BY

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GARDINER MULFORD: MR MULFORD DOES NOT HAVE AN EASEMENT, RIGHT

OF WAY OR OTHER ACCESS TO THIS PPOPERTY HE IS TRESPASSING IF

YOU TRESPASS ON HIS BEHALF YOU WILL BE PROSECUTED.”

In a letter dated September 4, 2007, James E. Madden

(“Madden”), Walnut Hill’s financial manager, warned Mulford

that he was trespassing and stated that if Mulford entered

Walnut Hill’s property, a criminal warrant for trespass would

be issued for his arrest. Following receipt of that letter,

Mulford began to clear the roadbed.

On September 12, 2007, Madden filed a criminal complaint

against Mulford, alleging that Mulford trespassed on his

property on August 26, 2007 by foot and on August 27, 2007 by

tractor. Mulford was arrested for trespassing, and the

complaint resulted in an order of nolle prosequi. After

Mulford initiated a tort suit against Walnut Hill and Madden,

Walnut Hill filed a complaint against Mulford with the Greater

Piedmont Area Association of Realtors, Inc. (“GPAAR”), a body

that has regulatory authority over Mulford’s activities as a

realtor.

PROCEEDINGS

On November 5, 2007, Mulford filed a four-count complaint

against Walnut Hill and Madden (collectively “Walnut Hill”)

for defamation for stating that Mulford was trespassing,

insulting words for the posted “No Trespassing” signs

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identifying Mulford as a trespasser, and malicious prosecution

and false imprisonment for his arrest. He alleged that the

roadbed was a lawful, recorded easement described in the land

records as Stony Ford Road, Brandy Road, Thornton’s Road, and

Bundy Town Road.

Walnut Hill filed an answer, and then an amended answer.

Walnut Hill also filed a counterclaim against Mulford and

third-party defendant Mulford @ Godfrey’s L.L.C.

(“Godfrey’s”), the record owner of the tract at that time,

alleging trespass and seeking injunctive relief barring

Mulford and his successors in title from entering its

property. Alternatively, if the circuit court determined that

“any lawfully established road” did exist, the counterclaim

sought a determination that it was only eight feet wide. 4

Mulford and Godfrey’s filed an answer to the counterclaim

in which they asserted that Walnut Hill was estopped from

denying the existence of the easement because the deeds to its

predecessors in title mentioned it under its various names.

Third-party defendant Godfrey’s filed a counterclaim against

Walnut Hill for declaratory judgment that the 35-foot-wide

“lawful easement and/or right-of-way” existed and seeking

4
Walnut Hill’s counterclaim also included a claim against
a third party; that claim is not within the scope of this
appeal.

6
injunctive relief barring Walnut Hill from restraining

Mulford’s use of it. In its answer to Godfrey’s counterclaim,

Walnut Hill again denied the existence of the easement.

Mulford then filed an amended complaint against Walnut

Hill alleging defamation per se for Walnut Hill’s letter to

the GPAAR, use of insulting words in the no trespassing sign,

and malicious prosecution and false imprisonment for

instigating the criminal trespass arrest. In his amended

complaint, he again asserted the existence of a recorded,

approximately 35-foot-wide easement. Thus, he contended,

Walnut Hill’s actions had been vindictive and without lawful

authority.

Walnut Hill subsequently filed an amended answer, denying

the existence of any public road or any recorded easement. It

also filed a demurrer asserting that the statements set forth

in the amended complaint were not defamatory and that nothing

in the no trespassing sign constituted insulting words.

The circuit court sustained the demurrer as to Mulford’s

defamation and insulting words claims to the extent those

claims were based on the criminal trespass warrant. The order

noted that counsel agreed “that the Amended Complaint does not

seek declaratory or injunctive relief with regard to the

alleged easement.”

7
 Mulford subsequently moved to bifurcate the proceedings

to separate the competing claims for declaratory judgment and

injunctive relief in the counterclaims from the tort claims in

his complaint. After a hearing, the circuit court granted the

motion. 5

The matter proceeded to trial on Walnut Hill’s

counterclaims against Mulford for injunctive relief, and on

Mulford’s counterclaim against Walnut Hill for injunctive

relief. In his bench brief and at trial, Mulford relied on

three theories of recovery: that the roadbed was a public

road, that Walnut Hill was equitably estopped to deny the

existence of a right of way in its chain of title, and that

Mulford was entitled to a prescriptive easement. 6

Following a trial on the question of whether an easement

existed, the circuit court determined that the various

references to the roadway in the deeds to Walnut Hill’s

5
After the bifurcation order and the pre-trial scheduling
order, but prior to trial, Mulford, as manager of Godfrey’s,
executed a deed of rescission on April 22, 2009 conveying all
interest in the land back to Mulford individually.
6
Mulford did not advance a theory of easement by implied
grant based on the severance of unity of title in 1866 by the
will of William Redd. See, e.g., Carter v. County of Hanover,
255 Va. 160, 167, 496 S.E.2d 42, 45 (1998) (“An easement from
previous use comes into existence because absent express
restrictions imposed by the terms of the grant, a grantor of
property conveys everything that is necessary for the
beneficial use and enjoyment of the property.”) (internal
quotation marks omitted).

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predecessors in title did not estop Walnut Hill from denying

the existence of the easement because there was no

representation by Walnut Hill to Mulford that an easement

existed or that he could use the portion of the roadbed that

crossed its property. Moreover, the prior owner informed

Mulford prior to the sale that there was no easement and that

the parcel was landlocked.

The circuit court then determined that Mulford failed to

prove by clear and convincing evidence that an easement

existed. The court found that a roadbed existed and had been

used in the area designated as the roadway by the various

surveys and maps Mulford introduced as evidence. However, the

mere existence and use of the roadbed was insufficient to

establish an easement. According to the circuit court, there

was no evidence that the roadway shown in the surveys and maps

was a public road because Mulford failed to show any public

use in the last hundred years – in fact, it was overgrown and

impassible until Mulford attempted to clear it – or that it

had been accepted as a public road by any public authority.

Finally, Mulford failed to prove a prescriptive easement

because there was “no direct evidence that [Mulford’s

predecessors in title] ever used the road.”

Accordingly, the circuit court entered a final order

denying Mulford’s claim that Walnut Hill was estopped from

9
denying the existence of an easement and finding that Mulford

had failed to prove its existence. Mulford appeals.

DISCUSSION

A. PUBLIC ROAD

Mulford first assigns error to the circuit court’s ruling

that the roadway was not a public road that he could use to

access his land. The question of whether the roadway was a

public road under Virginia law presents a mixed question of

law and fact. Because the circuit court heard the evidence

ore tenus, its factual findings are “entitled to the same

weight as a jury verdict, and [we are] bound by the

chancellor’s findings of fact unless they are plainly wrong or

without evidence to support them.” Westgate at Williamsburg

Condo. Ass’n v. Philip Richardson Co., 270 Va. 566, 573, 621

S.E.2d 114, 117-18 (2005) (citation and quotation marks

omitted). However, the ultimate conclusion as to whether the

roadway was a public road is reviewed de novo.

“Dedication is an appropriation of land by its owner for

the public use.” Greenco Corp. v. City of Virginia Beach, 214

Va. 201, 203, 198 S.E.2d 496, 498 (1973). At common law, “for

a road to be dedicated to the public, there must be an offer

made by the landowner and an acceptance by the public.”

Bradford v. Nature Conservancy, 224 Va. 181, 198, 294 S.E.2d

866, 875 (1982). “Although acceptance may be implied in urban

10
areas, a formal acceptance or express assertion of dominion

over the road by public authority is required before

dedication of a rural road is complete.” Burks Bros. of

Virginia, Inc. v. Jones, 232 Va. 238, 248, 349 S.E.2d 134, 141

(1986).

In Bradford, we explained the rationale behind the rule

requiring formal acceptance by the public of a rural road:

While a dedication may be implied from the acts
of the owner, these acts must be unmistakable to
show the intention of the landowner to
permanently give up his property. This Court
has long recognized that what may amount to a
dedication in an urban area will not serve the
same purpose in a rural one. This is because
landowners in rural areas frequently allowed
roads to be opened through their property
without intending a dedication to the public.
Just as important, the government might not have
any intention to accept the road and be
responsible for its maintenance. Thus, before a
rural road can be dedicated, there must be a
formal acceptance by the public.

Id. at 198-99, 294 S.E.2d at 875 (internal citations and

quotation marks omitted).

By contrast, in urban areas acceptance can occur through

“‘such long use by the public as to make reclamation unjust

and improper.’” Greenco, 214 Va. at 204, 198 S.E.2d at 489

(quoting Buntin v. City of Danville, 93 Va. 200, 204, 24 S.E.

830, 830 (1896). In Greenco, we found acceptance of a strip

of land where the general public had used it regularly for 70

years for beach access and where the City of Virginia Beach

11
treated it as any other street and built a boardwalk on the

ocean side of it. Id. at 208, 198 S.E.2d at 502.

The General Assembly also has provided for the

recognition of a way as a public road by statute:

When a way has been worked by road officials as
a public road and is used by the public as
such, proof of these facts shall be prima facie
evidence that the same is a public road. And
when a way has been regularly or periodically
worked by road officials as a public road and
used by the public as such continuously for a
period of twenty years, proof of these facts
shall be conclusive evidence that the same is a
public road.

Code § 33.1-184.

At trial, Mulford had the burden of establishing the

roadway as a public road, either by common law or by statute.

City of Staunton v. Augusta Corp., 169 Va. 424, 433, 193 S.E.

695, 698 (1937) (“Since we know that individual owners of

property are not apt to transfer it to the community or

subject it to public servitude without compensation, the

burden of proof to establish dedication is upon the party

alleging it.”). The parties do not dispute that the roadway

was situated in a rural area. Therefore Mulford was required

to prove that the roadway was “worked by road officials as a

public road and . . . used by the public as such,” Code

§ 33.1-184, or “a formal acceptance or express assertion of

12
dominion over the road by public authority.” Burks Bros. of

Virginia, 232 Va. at 248, 349 S.E.2d at 141.

The circuit court found that the roadway never was

formally accepted, or worked, or maintained by any public

authority. We will not disturb this finding of fact unless

plainly wrong or without evidence to support it. Westgate,

270 Va. at 573, 621 S.E.2d at 117-18.

Mulford presented evidence of ancient public use through

Walnut Hill’s expert witness, Eugene Scheel, an historian and

mapmaker. Scheel testified that the roadway was in use before

the American Revolution, and the Marquis de Lafayette may have

used it in 1781 when marching his troops to Yorktown. In the

course of mapmaking unrelated to this litigation, Scheel

prepared several maps of Culpeper County in which he labeled

the roadway “Fredericksburg Plank Road.” In 2009, Culpeper

County published a historical map drawn by Scheel depicting

Civil War battles, skirmishes, and fortifications. The

roadway is identified as Fredericksburg Plank Road. The map

was privately sponsored.

Scheel speculated that the road was probably planked “by

certain people using their help or slaves who wanted to make a

portion of the travel way traversable through their property”

or “by the local people who were hired by the viewers of the

13
area. It may have been re-planked during the civil war by the

troops themselves or by followers of the troops.”

Scheel concluded that the Fredericksburg Plank Road was

not a public road. He found no indication from county court

records or board of supervisors minutes recognizing the road

prior to the Byrd Act. 7 In 1921, in conjunction with road

funding from the Commonwealth, Culpeper County created a map

of its roads. Scheel testified that the roadway does not

appear on that map.

Viewing the facts in the light most favorable to Walnut

Hill, we cannot say that the circuit court was plainly wrong

in finding as a matter of fact that a public body did not

accept an offer to dedicate the roadway. Id. Because Mulford

failed to prove the requisite “formal acceptance or express

assertion of dominion over the road by public authority,”

Burks Bros. of Virginia, 232 Va. at 248, 349 S.E.2d at 141, we

need not address whether there was an offer to dedicate the

roadway.

B. PRESCRIPTIVE EASEMENT

7
Since the passage of the Byrd Road Act in 1932, the
Commonwealth of Virginia and its agencies have been
responsible for secondary road maintenance and construction in
all but two of Virginia’s counties. See Godwin v. Board of
Sup'rs, 161 Va. 494, 500, 171 S.E. 521, 523 (1933); Code
§ 33.1-12, -228, -229.

14
 Mulford next assigns error to the circuit court’s finding

that he did not have a prescriptive easement for ingress and

egress. We recently explained the applicable standard by

which we review the ruling of the circuit court:

Issues of adverse possession and prescription
present mixed questions of law, reviewed de
novo, and fact, to which the reviewing court
gives deference to the determination of the
trial court. . . . Thus, we must give
deference to the court’s judgment by reviewing
the evidence in the light most favorable to
. . . the prevailing party. Taking that view of
the evidence, we will then apply it to the law
of adverse possession and prescription de novo.

Scott v. Burwell’s Bay Improvement Ass'n, 281 Va. 704, 709,

___ S.E.2d ___, ___ (2011).

Virginia law requires clear and convincing evidence to

establish a prescriptive easement. Id. For Mulford to

establish a prescriptive easement over Walnut Hill’s land:

it must appear that the use of the roadway by
the claimant was adverse, under claim of right,
exclusive, continuous, uninterrupted, and with
knowledge and acquiescence of the owner of the
land over which it passes, and that such use
has continued for a period of at least twenty
years.

Martin v. Proctor, 227 Va. 61, 64-65, 313 S.E.2d 659, 661

(1984) (citing Craig v. Kennedy, 202 Va. 654, 657-58, 119

S.E.2d 320, 322-23 (1961)). The use will be presumed to be

under a claim of right when “there has been an open, visible,

15
continuous and unmolested use of a road across the land . . .

for at least twenty years.” Id.

At trial, Mulford conceded that there was no direct

evidence that any of his predecessors in title ever used the

property or the road. However, he introduced aerial

photographs taken in 1937, 1980, and 1994 that showed the

visible existence of a roadway. Scheel traced the visible

roadbed in the 1980 and 1994 photos. Mulford argues that

these photographs “show that someone had to be using Brandy

Road to access Godfrey’s Retreat, as well as other properties

without alternative access.”

Walnut Hill offered the testimony of Mulford’s immediate

predecessor in title, who owned the property for more than

twenty years and never made use of it because there did not

appear to be access. That owner asked for and was granted a

reprieve on real estate taxes by the County based on the lack

of access.

Mary Leftwich lived on property that bordered Mulford’s

tract. She testified that since 1967, when she moved to the

area, she had never seen anyone use the roadbed. She

described it as having “always been grown up and woods. . . .

You couldn’t never hardly walk down and I don’t know how you

could do anything else.” In 1967, her family erected a barbed

wire fence that crossed and blocked the roadbed until Mulford

16
tore it down in 2007. She further testified that Mulford’s

tract has never been developed in any way, and that no one has

ever lived on the property.

Neighboring landowner Larry Terry testified that he and

Mulford walked in the vicinity of the roadbed, but that it was

a “wilderness” with trees as large as 18 inches in diameter.

It was impossible for Terry to discern its path because of the

growth.

Mulford’s own witness, Richard Suthard, testified that it

would be impossible to drive a truck the full length of the

roadbed from Route 672 and 724 because of the growth, which

included trees with circumference similar to “a big Mountain

Dew bottle. . . . two, three, four inches.”

The circuit court held that Mulford had not proven the

elements of prescription by clear and convincing evidence. It

found that Mulford had not shown that any of his predecessors

ever used the roadway to access the property and that the

inference that someone must have used the roadway since it

appeared to provide the sole access to the property did not

rise to the level of clear and convincing evidence.

Viewing the evidence in the light most favorable to

Walnut Hill, Scott, 281 Va. at 709, ___ S.E.2d at ___, we

cannot say that the trial court’s finding of fact regarding

lack of use by Mulford’s predecessors was plainly wrong or

17
that the circuit court misapplied the law of prescription.

Id. While Mulford showed that a roadway existed and that

unknown people used it prior to his immediate predecessor, he

did not link that general historical use to his predecessors

in title. It appears from the evidence that those

predecessors never lived on or erected any structure on the

property, which initially was platted as a timber tract.

Mulford did not “introduce clear and convincing evidence to

prove the date or period of time when all of the elements of

proof for adverse possession or prescription were first

established” or “show that the prior occupants were asserting

the same claims to . . . a prescriptive easement over[] the

property in question.” Id. at 712-13, ___ S.E.2d at ___.

C. EQUITABLE ESTOPPEL

Mulford next assigns error to the circuit court’s ruling

that Walnut Hill was not estopped from denying a right of way.

On brief and at oral argument, Mulford asserted that Walnut

Hill did not have “clean hands” because the roadway appears

throughout its chain of title and in its title insurance

policy as an exception to coverage.

To establish equitable estoppel, Mulford was required to

prove “by clear, precise, and unequivocal evidence” (1) that

Walnut Hill falsely represented that there was an easement

serving Mulford’s tract; (2) that Walnut Hill did so with

18
knowledge that there was no easement; (3) that Mulford was

ignorant of the truth; (4) that Walnut Hill intended that

Mulford act on the representation; (5) that Mulford was

induced to act upon it; and (6) that Mulford “was misled to

his injury.” See Boykins Narrow Fabrics Corp. v. Weldon

Roofing & Sheet Metal, Inc., 221 Va. 81, 86, 266 S.E.2d 887,

890 (1980).

We need not address each element of equitable estoppel,

as set forth in Boykins Narrow Fabrics, because Mulford did

not prove or even allege that Walnut Hill ever made any

representation regarding an easement upon which he relied.

Accordingly, we hold that the trial court did not err in

finding that Mulford failed to establish that Walnut Hill

should be equitably estopped from denying the easement.

D. BURDEN OF PROOF

In Mulford’s fourth assignment of error, he asserts that

Walnut Hill bore the burden of proof to establish that no

easement or right-of-way existed because it sought to “close”

an existing easement or right-of-way. This argument is

without merit.

The question of which party bears the burden of proof is

a question of law. E.g., Dan's Supermarket v. Pate, 33 P.3d

1121, 1124 (Wyo. 2001) (“[a]llocation of the burden of proof

is a matter of law”); Fischer v. State Dep’t of Soc. & Rehab.

19
Servs., 21 P.3d 509, 515 (Kan. 2001) (“determination of which

party shall bear the burden of proof is a question of law”);

Suydam v. Commercial Fisheries Entry Comm’n, 957 P.2d 318, 322

(Alaska 1998) (“[d]etermining the appropriate burden and

deciding who bears it are questions of law”). We review

questions of law de novo. Government Emp. Ins. Co. v. United

Servs. Auto. Ass’n, 281 Va. 647, 655, ___ S.E.2d ___, ___

(2011).

Mulford initially pled the existence of an easement in

his complaint to establish his claims of insulting words,

malicious prosecution, and false imprisonment: these claims

are predicated on the notion that Mulford was not trespassing

when he used the portion of the roadbed traversing Walnut

Hill’s parcel. Likewise, his counterclaim for declaratory

judgment and injunctive relief sought to establish the

easement and bar Walnut Hill from restraining his use of it.

It is well-established that the party who claims an

easement bears the burden of proving the fact. Both

declaration and enforcement of an easement are equitable

remedies, and he who seeks such equitable relief must prove

“the facts that give rise to the easement, whether by express

grant or reservation, by implication, or by other means.”

Brown v. Haley, 233 Va. 210, 216-17, 355 S.E.2d 563, 568

20
(1987). This includes easements by prescription. Nelson v.

Davis, 262 Va. 230, 235, 546 S.E.2d 712, 715 (2001).

Mulford’s argument on appeal incorrectly presupposes the

existence of the easement and demands that Walnut Hill

disprove it. This argument may be relevant if Walnut Hill had

admitted an easement existed but claimed it had been

abandoned: a party who claims an existing easement has been

abandoned does bear the burden of proving it. Pizzarelle v.

Dempsey, 259 Va. 521, 528, 526 S.E.2d 260, 264 (2000).

However, Walnut Hill never admitted – either in its answers,

its counterclaim, or at trial – that an easement once had

existed but had been abandoned. Rather, Walnut Hill denied

that an easement ever existed. Accordingly, because there was

no basis on which to presuppose the existence of the easement,

the circuit court did not err when it required Mulford to

prove its existence.

CONCLUSION

For the reasons stated above, we will affirm the judgment

of the circuit court.

Affirmed.

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