Hafner v. Hansen

PRESENT: Hassell, C.J., Keenan, 1 Koontz, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.

JUDITH HAFNER

v. Record No. 090972 OPINION BY
JUSTICE BARBARA MILANO KEENAN
April 15, 2010
WALTER D. HANSEN

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge

In this appeal, we consider whether there is sufficient

evidence to support the circuit court’s holding that a

litigant established a prescriptive easement permitting the

use of an underground sewer pipe.

We will state the facts in the light most favorable to

Walter D. Hansen, the prevailing party below. Johnson v.

DeBusk Farm, Inc., 272 Va. 726, 730, 636 S.E.2d 388, 390

(2006); Jenkins v. Bay House Assocs., L.P., 266 Va. 39, 41,

581 S.E.2d 510, 511 (2003). In 2007, Judith A. Hafner

employed a contractor to complete a remodeling project on her

Arlington home located on Fillmore Street (the Fillmore Street

property). The contractor discovered that a sewage pipe (the

left side sewer line) lay 11 feet underground on the left side

of Hafner’s house. The left side sewer line, which was not

visible above ground and was connected to the sewer main under

1
Justice Keenan participated in the hearing and decision
of this case prior to her retirement from the Court on March
12, 2010.
Fillmore Street, provided sewer service to an apartment

building located directly behind the Fillmore Street property.

During construction in June 2007, the contractor damaged

the left side sewer line, and Hafner directed the contractor

to repair it. The contractor repaired the left side sewer

line and moved it several feet on the Fillmore Street property

so that this sewer line would not interfere with the

construction process.

About two months later, Hafner’s attorney sent a letter

to Hansen, the owner of the apartment building, to inform him

of the damage to and relocation of the sewer line. In the

letter, Hafner’s attorney demanded that Hansen purchase an

easement for the left side sewer line or construct a new sewer

line on his own property.

After the parties failed to reach an agreement, Hafner

filed a complaint in the circuit court asserting that the left

side sewer line constituted a trespass on her property.

Hafner sought a permanent injunction to prohibit Hansen from

maintaining the left side sewer line on the Fillmore Street

property and sought $15,000 in damages. In response, Hansen

denied the allegations of trespass, and asserted that he had

acquired a prescriptive easement for use of the left side

sewer line.

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 The case proceeded to a bench trial. The evidence showed

that in 2006, Hafner purchased the Fillmore Street property,

which contained a single-family home that was built around

1927. The apartment building was constructed some time

between 1930 and 1940, and has been used continuously as

rental property. The Fillmore Street property and the

property on which the apartment building was constructed (the

apartment building property) were both created by a 1921

subdivision deed, and the boundaries for those properties have

not changed since that time.

Plumbing records from the Arlington County Department of

Sewers indicated that in July 1940, the County installed a

sewer tap to connect the left side sewer line to a new, larger

sewer main that had been constructed under Fillmore Street.

These plumbing records further showed that at the time the

sewer tap was installed, the left side sewer line provided

sewer service to both the Fillmore Street property and the

apartment building. However, the plumbing records did not

indicate when the left side sewer line was constructed.

In 1940, Mr. and Mrs. D. E. Horrigan owned the Fillmore

Street property. In 1944, the Horrigans conveyed the Fillmore

Street property to Raymond and Dorothy Walters.

Another plumbing record received in evidence showed that,

in 1946, the Walters paid for a sewer tap to provide service

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to a sewer line on the right side of the house (the right side

sewer line). This plumbing record, however, did not reference

the left side sewer line at issue in this case.

The right side sewer line appeared on a 1963 Arlington

County Street Plan, which indicated that this line provided

sewer service to the Fillmore Street property. In 1963,

Dorothy Walters conveyed the Fillmore Street property to

Better Homes Realty, Inc. Three other parties owned the

Fillmore Street property prior to the conveyance to Hafner in

2006.

The chain of title for the apartment building property

showed that Joseph C. Boss and Lillie K. Boss owned the

property in 1940. In 1944, Hansen’s step-father, William J.

Holtman, Jr., purchased the apartment building property and

also purchased a title insurance policy, which revealed that

the left side sewer line provided sewer service to the

apartment building property but that no easement had been

recorded for that line. In 2003, Hansen acquired title to the

apartment building property and retained possession of the

title insurance policy.

After considering all the evidence, the circuit court

denied Hafner’s request for injunctive relief and held that

Hansen had established a prescriptive easement across the

Fillmore Street property for use of the left side sewer line.

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The circuit court concluded that the previous owners of the

Fillmore Street property “had knowledge of the presence of the

[left side] sewer line and failed to object to its presence”

for at least 20 years, and that the left side sewer line had

provided continuous and uninterrupted service to the apartment

building since 1940. Hafner appeals.

Hafner argues that Hansen did not establish a

prescriptive easement because he failed to prove the required

element of adverse use. Hafner contends that a hidden,

underground sewer line is not an open and notorious use of

property for purposes of establishing an adverse use and that,

therefore, the presence of such an underground pipe on a

servient estate cannot support the establishment of a

prescriptive easement.

In response, Hansen argues that he proved the element of

adverse use. He contends that the plumbing records received

in evidence established that Hafner’s predecessors in title

were aware of the presence of the left side sewer line, and

that they did not object to the use of that sewer line to

provide service to the apartment building. We disagree with

Hansen’s arguments.

Our standard of review of the circuit court’s judgment in

this bench trial is well established. We will not disturb

that judgment unless it is plainly wrong or without evidence

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to support it. Code § 8.01-680; Johnson, 272 Va. at 730, 636

S.E.2d at 390; Amstutz v. Everett Jones Lumber Corp., 268 Va.

551, 558, 604 S.E.2d 437, 441 (2004); Martin v. Moore, 263 Va.

640, 646, 561 S.E.2d 672, 676 (2002).

A party claiming a prescriptive easement bears the burden

of proving that easement by clear and convincing evidence.

Amstutz, 268 Va. at 559, 604 S.E.2d at 441; Martin, 263 Va. at

645, 561 S.E.2d at 675; Pettus v. Keeling, 232 Va. 483, 486,

352 S.E.2d 321, 324 (1987). To establish a prescriptive

easement, the claimant must prove that use of the servient

estate was adverse, under a claim of right, exclusive,

continuous, uninterrupted, and with the knowledge and

acquiescence of the owner of the servient estate. Johnson,

272 Va. at 730, 636 S.E.2d at 391; Amstutz, 268 Va. at 559,

604 S.E.2d at 441; Martin, 263 Va. at 645, 561 S.E.2d at 675.

The claimant also must prove that this use occurred for a

period of at least 20 years. Johnson, 272 Va. at 730, 636

S.E.2d at 391; Amstutz, 268 Va. at 559, 604 S.E.2d at 441;

Martin, 263 Va. at 645, 561 S.E.2d at 675.

When a use is open, visible, and continuous throughout

the required prescriptive period, the claimant is entitled to

a presumption that the use arose adversely or under a claim of

right. Johnson, 272 Va. at 730, 636 S.E.2d at 391; Martin,

263 Va. at 645, 561 S.E.2d at 676; Umbarger v. Phillips, 240

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Va. 120, 124, 393 S.E.2d 198, 200 (1990); McNeil v. Kingrey,

237 Va. 400, 404, 377 S.E.2d 430, 432 (1989). The rationale

for this presumption is that such use provided the owner of

the servient estate with reasonable notice that a right

adverse to his interest was being exercised. Umbarger, 240

Va. at 125-26, 393 S.E.2d at 200-01; see McNeil, 237 Va. at

404, 377 S.E.2d at 432. The claimant is not entitled to this

presumption if the use is concealed. Umbarger, 240 Va. at

126, 393 S.E.2d at 201.

In the present case, the parties agree that the left side

sewer line was buried 11 feet underground and was not visible

above ground. Therefore, Hansen did not enjoy a presumption

of adverse use and bore the burden of proving this element by

clear and convincing evidence.

To prove an adverse use of Hafner’s property, Hansen was

required to show that he intentionally asserted a claim

hostile to Hafner’s ownership rights. Chaney v. Haynes, 250

Va. 155, 159, 458 S.E.2d 451, 453 (1995). Such proof of

adverse use included a requirement that the use of the land

was open and notorious, or that the servient landowner had

actual knowledge of the use or reasonably should have

discovered it. 4 Richard R. Powell, Powell on Real Property

§ 34.10[2][f] (Michael A. Wolf, ed. 2000); see Umbarger, 240

Va. at 125-26, 393 S.E.2d at 200-01.

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 Applying these principles, we conclude that the circuit

court was plainly wrong in holding that Hansen established by

clear and convincing evidence an adverse use of the Fillmore

Street property giving rise to a prescriptive easement. The

plumbing records received in evidence showed that in 1940, the

left side sewer line provided service to both properties.

However, the evidence did not demonstrate that the Horrigans,

the owners of the Fillmore Street property until 1944, had

knowledge that the left side sewer line provided sewer service

to the apartment building property.

The records further showed that the left side sewer line

was not used exclusively to provide service to the apartment

building property until 1946. At that time, the Walters

installed a sewer tap to enable the right side sewer line to

provide service to the Fillmore Street property. Notably,

this evidence failed to establish that the Walters were aware

that the left side sewer line extended from the apartment

building across their property or that this sewer line

continued to be used for the benefit of the apartment building

property.

Even assuming, however, that the Walters had actual

knowledge in 1946 that the left side sewer line provided

service to the apartment building property, this knowledge was

insufficient to establish an adverse use. The Walters

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conveyed the Fillmore Street property 17 years after that

date, and Hansen failed to prove that the later owners of this

property had any knowledge of, or reasonably should have

discovered, the presence or use of the sewer line. See Powell

on Real Property § 34.10[2][f]; Umbarger, 240 Va. at 125-26,

393 S.E.2d at 200-01.

The evidence further showed that the land records for the

Fillmore Street property do not contain any reference to the

left side sewer line, and that this sewer line is buried 11

feet underground and is not visible above the ground. Thus,

we conclude that, as a matter of law, Hansen failed to

establish by clear and convincing evidence an adverse use of

the left side sewer line for at least 20 years. See Johnson,

272 Va. at 730, 636 S.E.2d at 391; Amstutz, 268 Va. at 559,

604 S.E.2d at 441; Martin, 263 Va. at 645, 561 S.E.2d at 675.

Finally, we note that our holding is consistent with the

decisions of courts in other jurisdictions. As a general

rule, when underground pipes have not been physically apparent

throughout the prescriptive period and the servient landowner

has not had notice of the existence of those pipes, courts

have declined to recognize the establishment of a prescriptive

easement. See J. H. Crabb, Annotation, Easements by

Prescription in Artificial Drains, Pipes, or Sewers, 55

A.L.R.2d 1144 § 9[b] (1957); see e.g., City of Montgomery v.

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Couturier, 373 So. 2d 625, 627 (Ala. 1979)(to prove

prescriptive easement involving underground pipe, evidence

must show visible condition placing landowner on notice of

adverse occupation); Sullivan v. Neam, 183 A.2d 834, 834-35

(D.C. 1962)(prescriptive easement not proved when servient

estate owner lacked knowledge of private sewer line and

property deeds failed to reveal line’s presence); Powell v.

Dawson, 469 N.E.2d 1179, 1182 (Ind. App. 1984)(to prove

prescriptive easement when use of underground drainage pipe

not open to observation, claimant must show that servient

tenant knew or should have known of existence of pipe);

Maricle v. Hines, 247 S.W.2d 611, 613 (Tex. App. 1952)(failure

to show that use of sewer line was open, notorious, and

adverse or to establish that use was with knowledge of owners

of servient property barred prescriptive easement); Fanti v.

Welsh, 161 S.E.2d 501, 505-06 (W.Va. 1968)(prescriptive

easement not established when use of sewer was not visible and

not known to owner of burdened estate).

For these reasons, we will reverse the circuit court’s

holding that Hansen established a prescriptive easement for

use of the left side sewer line and remand the case for a

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determination whether Hafner is entitled to her requested

relief. 2

Reversed and remanded.

2
Based on our holding, we do not reach Hafner’s remaining
assignments of error regarding the form of Hansen’s pleading
or the sufficiency of Hafner’s proof of monetary damages.

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