PRESENT: Keenan, 1 Koontz, Lemons, Goodwyn, and Millette, JJ.,
and Carrico and Lacy, S.JJ.
JANE F. SNEAD, ET AL.
OPINION BY
v. Record No. 090524 JUSTICE DONALD W. LEMONS
April 15, 2010
C&S PROPERTIES HOLDING
COMPANY, LTD., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
William H. Ledbetter, Jr., Judge designate
In this appeal, we consider whether the trial court erred
when it denied the injunctive relief sought by Jane F. Snead,
Douglas and Bonnie McWhirt, and Snead Family Farm, LLC
(collectively, “Snead”) against C&S Properties Holding Company,
Ltd. (“C&S Properties”) and Sylvia Properties, L.C. (“Sylvia
Properties”). 2
I. Facts and Proceedings Below
Snead filed a complaint seeking permanent injunctive
relief against C&S Properties. Snead alleged that C&S
Properties had “erected a chain-link fence, planted and removed
certain trees, shrubs and/or bushes, placed certain signage,
and installed rip-rap [(“the Improvements”)], within the
bounds” of “a 60’ ingress and egress easement” (“Easement”)
1
Justice Keenan participated in the hearing and decision
of this case prior to her retirement from the Court on March
12, 2010.
2
After Snead’s petition for appeal was granted, but prior
to our resolution of the case, Sylvia Properties and Snead
along the northern boundary of the property owned by C&S
Properties over which Snead had a right of way. 3 Snead further
alleged that the Improvements “encroache[d] upon and
obstruct[ed] the Easement,” “interfere[d] with, limit[ed] and
restrict[ed Snead’s] quiet and peaceable possession and full
and free enjoyment or use of the Easement,” which use
constituted a “breach of the covenant made by C&S Properties.”
Finally, Snead alleged that the Improvements “render[ed] a
portion of the Easement unusable and impassable by [Snead, and
the denial] of injunctive relief would permit a taking of a
portion of the Easement.”
Snead requested that the trial court:
(1) award them permanent injunctive relief
prohibiting [C&S Properties] from interfering
and obstructing [Snead’s] use and enjoyment of
the Easement, (2) order and require [C&S
Properties] to remove all obstructions from the
Easement, including but not limited to the
chain-link fencing, new/immature trees and
bushes, signage, and rip-rap that obstruct and
encroach upon a portion of the Easement, (3)
award them compensatory damages in the amount of
$50,000.00, punitive damages in the amount of
$50,000.00, nominal damages, and their costs,
including attorney’s fees on this behalf
expensed, and (4) order such other and further
relief as to equity may seem meet and the nature
of this case may require.
settled the matters in controversy. Pursuant to Snead’s
motion, we entered an order dismissing Sylvia Properties.
2
In its answer, C&S Properties admitted that the Easement
“is an easement across property described in the Complaint and
‘serving’ in a legal sense, land owned by Snead Family Farm,
LLC.” C&S Properties denied the balance of Snead’s other
material allegations. On September 15, 2008, the trial court
held an ore tenus hearing, received exhibits including deeds,
plats and photographs of the subject property, and, with
counsel, “took a view of the property.”
The Easement was created by a 1971 deed between Emmett C.
Snead, Sr., Emmett C. Snead, Jr. and Jane F. Snead as grantors,
and Emmett C. Snead Sr., Emmett C. Snead, Jr., Douglas C.
McWhirt, and Bonnie McWhirt as grantees (“the 1971 Deed”). In
the 1971 Deed, the grantors
reserve[d] unto themselves, their heirs,
devisees, personal representatives, successors
and assigns, for ingress and egress to and from
other parcels of real estate they jointly or
severally own or have interest in, across the
northernmost 60’ of the parcel hereby conveyed,
and shown in said plat as “60’ Easement”, as a
means to reach the National Battlefield Park
Road, the easement herein reserved to be in
perpetuity as an appurtenance to all other
parcels aforesaid and not merely personal to the
Grantors.
In 1997, E.C. Snead, Jr. and Jane F. Snead conveyed the
property (“the 1997 Deed”) to the Industrial Development
3
The complaint also contained an allegation of “Tortious
Interference with and Obstruction of Easement.” This second
count was nonsuited during the trial.
3
Authority of the City of Fredericksburg (“IDA”). The 1997 Deed
stated that the conveyance was made subject to “any and all
easements of record and 60’ ingress and egress easement . . .
reserved for the benefit of the Grantors and the owners of the
property.”
Subsequently, the IDA conveyed by deed (“the 2004 Deed”)
approximately 4.3 acres of land to C&S Properties and Sylvia
Properties, which land was subsequently partitioned between the
two grantees. The conveyance was “made expressly subject to
any and all easements, conditions, restrictions and agreements
of record insofar as they may be lawfully applicable to the
property hereby conveyed.”
Presently, the Easement runs in an east-west direction on
the northern edge of property owned by C&S Properties. The
Easement is bordered to the north by the Battlefield Industrial
Park, and connects Lee Drive to the west with Central Road to
the east.
Eric Sullivan (“Sullivan”), a licensed land surveyor whose
company prepared the survey of the parties’ property, testified
that during the survey, his firm “located [] objects inside the
60-foot [E]asement.” The objects included “a fence, two
fences, some sewer manhole[,] a pile of riprap” and a sign.
Additionally, an earthen berm and a storm drain basin extend
into the Easement.
4
Sullivan testified that the northern portion of the
Easement contains a gravel road (“gravel road”), which runs
“from Park Road, Lee Drive, all the way through to Central
Road.” Counsel for C&S Properties conceded that Snead “ha[s]
access across [C&S Properties’ land] by way of that variable
width, 12- to 15-foot [gravel] road.” The gravel road is
bounded to the north and the south by “a line of mature trees,”
however “it generally appear[s] flat and passable.”
Steven Robinson (“Robinson”), the owner of C&S Properties,
testified that when C&S Properties acquired its property, he
was aware of the Easement and the fact that it comprised 60
feet in width. Robinson acknowledged that a fence that runs
parallel to the gravel road was constructed within the Easement
because it was necessary for the security of the property owned
by C&S Properties and Sylvia Properties. The fence also
contains “at least two . . . offshoots or perpendicular
stretches . . . that run to and across th[e] southern boundary”
of the Easement. In addition to securing its property with a
fence, Robinson stated that Sylvia Properties uses a portion of
the Easement for “stacking and storing port-a-potties or
portable latrines.”
During his testimony, Robinson conceded that the fence
prevents access to or use of “the portion of the [E]asement to
the south of the fence” from the gravel road. The fence
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obstructs Snead’s access to approximately 40 feet in width on
the southern side of the Easement. Robinson testified that he
never witnessed anyone traversing any portion of the Easement
other than the gravel road.
Douglas C. McWhirt (“McWhirt”), a nephew of Emmett Snead,
Jr., testified regarding his use of the Easement. McWhirt
testified that he used the gravel road to enter his property
either from Central Road, Lafayette Boulevard, or Tyler Street.
He acknowledged that the width of the gravel road concerns him
because certain vehicles have difficulty accessing his property
across it. In particular, a septic tank truck, which currently
suffers damage when it enters McWhirt’s property via the gravel
road, typically enters his property via the adjacent park,
which prohibits commercial traffic.
Additionally, McWhirt voiced concern that the gravel road
experiences traffic in both directions, however it is not wide
enough in its present state to accommodate two vehicles at the
same time. McWhirt testified that the fence owned by C&S
Properties prevents him from accessing or crossing his property
by any means other than the gravel road, and he expressed his
concern that his failure to obtain removal of the fence now
would later result in his permanent loss of the use of that
portion of the Easement.
6
At the close of the evidence, the trial court heard oral
argument from the parties. The parties then submitted letter
briefs, and thereafter the trial court issued its letter
opinion and final decree, which held that the 1997 Deed
“creates an express easement by reservation . . . specifically
for ingress and egress.” Therefore, the Easement is “an
express easement appurtenant for the benefit of the remainder
of [Snead’s] land.”
Notwithstanding this conclusion, the trial court declined
to grant Snead’s requested permanent injunctive relief against
C&S Properties because “it would be a useless and unduly
burdensome act to compel the defendants to remove all man-made
objects within the [Easement].” The trial court emphasized
that “none of these objects interferes with passage along the
gravel road.” Further bolstering its decision to deny
injunctive relief, the trial court noted that “even if equity
compelled the defendants to remove the man-made objects in the
[E]asement, [Snead] still would be unable to use the entire
easement . . . because of the stand of trees down the length of
the easement.”
Snead timely filed their notice of appeal and we granted
an appeal on the following assignments of error:
1. The trial court erred in denying the Plaintiffs’ prayer
for mandatory injunctive relief because:
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The finding of an express easement appurtenant for
ingress and egress in favor of the Plaintiffs across land
owned by the Defendants, coupled with evidence of
obstructions to, and significant interference with, that
easement entitles the Plaintiffs to mandatory injunctive
relief.
2. The trial court’s refusal to grant injunctive relief
under the facts of this case and applicable law was
plainly wrong.
3. The decision of the trial court permits an unjust taking
of the Plaintiffs’ easement rights and modifies the
express easement appurtenant.
II. Analysis
A. Standard of Review
In this case, we review whether the trial court erred when
it denied Snead’s request for permanent injunctive relief.
“[W]hen a case is decided by a court without the
intervention of a jury and a party objects to
the decision on the ground that it is contrary
to the evidence, the judgment of the trial court
shall not be set aside unless it appears from
the evidence that such judgment is plainly wrong
or without evidence to support it.” Code §
8.01-680. “It is axiomatic that a [trial
court’s] finding on conflicting evidence, heard
ore tenus, will not be disturbed on appeal
unless it is plainly wrong or without evidence
to support it.” Ivy Constr. Co. v. Booth, 226
Va. 299, 301, 309 S.E.2d 300, 301 (1983) (per
curiam) (citing Rochelle v. Rochelle, 225 Va.
387, 393, 302 S.E.2d 59, 63 (1983)).
Conversely, “[a] judgment or decree that is
plainly wrong, or without evidence to support
it, cannot be allowed to stand.”
Pizzarelle v. Dempsey, 259 Va. 521, 527, 526 S.E.2d 260, 263
(2000). Furthermore, the decision to grant or deny an
injunction is within the discretion of the trial court, and it
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will not be disturbed on appeal unless it is plainly wrong.
Blue Ridge Poultry & Egg Co. v. Clark, 211 Va. 139, 144, 176
S.E.2d 323, 327 (1970).
B. Injunctive Relief
Snead argues that the trial court’s denial of injunctive
relief was plainly wrong because the man-made improvements and
obstructions in the Easement prevent Snead’s “use and enjoyment
of a significant portion of the Easement.” Snead further
argues that denial of injunctive relief “would permit a taking
of a portion of the Easement by [C&S Properties], thereby
rewarding [C&S Properties] for its interference with [Snead’s]
deeded property rights.” We agree.
The outcome in this case is controlled by our decision in
Pizzarelle, which involved a 24-foot wide ingress and egress
easement created by a deed of easement for the benefit of the
property owners in a subdivision. 259 Va. at 523-24, 526
S.E.2d at 261. In that case, the instrument creating the deed
provided:
1. The easement shall be used exclusively for
the purpose of ingress and egress to the Lots.
2. No act shall be performed by any owner of a
Lot, their tenants, guests, or agents which
would in any manner affect or jeopardize the
free and continuous enjoyment of any other owner
of a Lot in and to the easement.
Id. at 524, 526 S.E.2d at 261.
9
In their amended bill of complaint, the Pizzarelles
alleged that the defendants “obstruct[ed] and interfer[ed] with
the full use of the easement by virtue of certain fences, a
rock wall, and bushes and trees that the [defendants] placed in
the easement.” Id. at 525, 526 S.E.2d at 262. The Pizzarelles
sought “an injunction directing [the defendants] to remove all
obstructions placed in or along the easement, and restraining
[the defendants] from any further obstruction of the easement.”
Id.
At trial, the evidence revealed that the defendants had
planted some of their trees and shrubs “approximately two to
three feet” within the 24-foot easement. Id. Additionally, a
wooden, picket-style fence was constructed “approximately four
to five feet inside the southern border of the easement.” Id.
at 526, 526 S.E.2d at 262. Mr. Pizzarelle described these
improvements as a “ ‘permanent block to anyone getting through
that portion of the easement.’ ” Id. at 527, 526 S.E.2d at
263. The trial court held that the “encroachment was
insubstantial” and denied the prayer for injunctive relief.
Id.
On appeal, we reversed the decision of the trial court,
holding that “the obstructions in the easement are a material
encroachment on the dominant owners’ rights.” Id. at 530, 526
S.E.2d at 265. In reaching that conclusion, we observed,
10
[t]o affirm the circuit court’s denial of
injunctive relief in this case would in effect
allow [the defendants] to appropriate a portion
of the easement and reduce a 24-foot easement to
one of 19 to 20 feet in width. [The
Pizzarelles] acquired a 24-foot easement, and
they are entitled to the free and continuous use
and enjoyment of that 24 feet for the purpose of
ingress and egress. The terms of the easement
specifically guaranteed that right to them.
Id. at 531, 526 S.E.2d at 265.
We further noted that the question was not one of
reasonableness, nor was it a case in which the equities should
be balanced. Id. at 531, 526 S.E.2d at 265-66. In Pizzarelle,
the defendants argued that the obstructions in the easement did
not impede vehicular traffic. Id. Notwithstanding the truth
of that statement as to the unimpeded northern portion of the
easement, “the obstructions in the easement completely
block[ed] all ingress and egress on the south side of the
wooden fence.” Id. at 531, 526 S.E.2d at 266. Based on the
facts presented, we concluded that “a significant portion of
the easement would be rendered unusable for ingress and egress
if injunctive relief were denied,” and as a result we held that
the trial court was plainly wrong when it denied the
injunction. Id.
The same analysis compels a reversal in this case. In its
letter opinion, the trial court found that Snead “presented no
evidence whatever that any of the objects complained of disrupt
11
[Snead’s] enjoyment of free passage along the [E]asement.” The
trial court also noted that “none of [the Improvements]
interferes with passage along the gravel road.” The trial
court incorrectly concluded that C&S Properties’ lack of
interference with the gravel road was conclusive of the
question whether C&S Properties obstructed the Easement.
The 1971 Deed clearly reserved “the northernmost 60’ of
the parcel” – not merely the gravel road – for the use of Snead
and their successors in interest. “[W]here a reservation is of
a certain width, that width cannot be encroached upon.”
Willing v. Booker, 160 Va. 461, 465, 168 S.E. 417, 418 (1933).
As in Pizzarelle, Snead is “entitled to the free and continuous
use and enjoyment of [the Easement] for the purpose of ingress
and egress.” 259 Va. at 531, 526 S.E.2d at 265. Conversely, a
consequence of Snead’s failure to obtain injunctive relief
would result in C&S Properties ascending to “a new and
different use of an express easement . . . established by
prescription, i.e., a showing of adverse use under a claim of
right, a use which is exclusive, continuous and uninterrupted
and occurs with the knowledge of the land owner for at least
twenty years.” Id. at 530-31, 526 S.E.2d at 265 (internal
quotation marks omitted).
Despite this express reservation of land for the Easement,
Robinson, the owner of C&S Properties, acknowledged that the
12
fence his company constructed prevented Snead from utilizing
approximately two-thirds the width of the Easement. Even more
so than in Pizzarelle where the encroachment constituted four
to five feet of a 24-foot easement, C&S Properties’ sizeable
encroachment is “a material encroachment on the dominant
owners’ rights” because “a significant portion of the
[E]asement would be rendered unusable for ingress and egress if
injunctive relief were denied.” Id. at 530-31, 526 S.E.2d at
265-66. Accordingly, we hold that the trial court was plainly
wrong when it denied Snead’s request for permanent injunctive
relief.
III. Conclusion
For the reasons stated herein, we will reverse the
judgment of the Circuit Court of the City of Fredericksburg and
remand the case to the trial court for entry of a final order
granting injunctive relief to Snead.
Reversed and remanded.
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