PRESENT: All the Justices
HENRY ANDERSON, JR., ET AL.
v. Record No. 082416 OPINION BY
JUSTICE BARBARA MILANO KEENAN
September 18, 2009
MICHAEL D. DELORE, ET AL.
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge
In this appeal, we consider whether the circuit court erred in
refusing to issue an injunction requiring the owners of certain real
property with frontage on Smith Mountain Lake to remove from their
land a dock and beach area located within the alleged “extended lot
lines” of an adjacent landowner’s property.
Henry Anderson, Jr. and Linda W. Anderson own a parcel of land
(the Anderson lot) that lies immediately above the 800-foot contour
of Smith Mountain Lake in Bedford County. Michael D. Delore and
Deborah Fountain-Delore own property (the Delore lot) that is
adjacent to the Anderson lot and also lies immediately above the 800-
foot contour.
These two parcels derive from a common grantor, the Villamont
Corporation (Villamont), which in 1958 purchased about 140 acres of
real property on Smith Mountain Lake for the development of a
subdivision known as Gross Point. As part of this development,
Villamont retained ownership of the land below the 800-foot contour
but conveyed to Appalachian Power Company (the company) a flowage
easement so that the company can change the level of the water in
Smith Mountain Lake, up to the 800-foot contour, as needed for the
operation of a power station.
Villamont later conveyed by separate deeds (the Villamont deeds)
the two lots at issue to the predecessors in interest of the
Andersons and the Delores. The Villamont deeds were recorded in the
Bedford County land records and included the following provision:
There is also granted and conveyed hereby an easement
of right of way appurtenant to the aforesaid lot over
and across the strip of land lying immediately between
the lot herein conveyed and Smith Mountain Lake for
the purpose of securing access to Smith Mountain Lake
from the aforesaid property. (emphasis added)
All later deeds in the chain of title of the Anderson lot
contained substantially identical language. Thus, when the Andersons
purchased their lot in 2001, their deed expressly conveyed to them a
right of way over the “strip of land lying immediately between [the
Anderson lot] and Smith Mountain Lake.”
The deed conveying the Delore lot in 2002 did not contain the
language regarding the easement quoted above, but the deed expressly
conveyed the land “together with the buildings and improvements
thereon and the privileges, appurtenances and easements thereunto
belonging.” Every other deed in the Delores’ chain of title included
either this language, or the original language establishing an
easement that was contained in the Villamont deeds.
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At the time they purchased their lot, the Delores also acquired
a pre-existing dock structure that was erected in 1979 by one of the
Delores’ predecessors in interest. The Delores later secured permits
from American Electric Power Company and the Bedford County
Department of Planning to replace pre-existing riprap with a beach
area along the shoreline of Smith Mountain Lake.
In January 2007, the Andersons filed a complaint against the
Delores in the circuit court seeking an injunction requiring the
Delores to remove from their property the dock and the beach area,
including a sand box and associated riprap. The Andersons alleged
that these structures encroached within the “extended lot lines” of
the Anderson lot and interfered with the Andersons’ use and enjoyment
of their property.
The Andersons appended to their complaint a “resurvey” of the
Anderson lot, which was prepared in 2006, that included depictions of
“extended lot lines” that had not appeared previously on any document
in the Anderson’s chain of title. These additional lines were drawn
by extending the existing property lines through the area between the
800-foot contour to the waters of Smith Mountain Lake. This
“resurvey” also depicted the Delores’ dock and beach area as lying
within the “extended lot lines” of the Anderson lot.
After the parties filed cross-motions for summary judgment, the
circuit court conducted a hearing. The Andersons argued that by
virtue of their deed, they have an express easement that affords them
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exclusive access to Smith Mountain Lake within the “extended lot
lines” of the Anderson lot. The Andersons also argued that the
placement of the Delores’ dock violated certain present and prior
provisions of the Bedford County Zoning Ordinance (the zoning
ordinance).
In their motion for summary judgment, the Delores noted that the
Andersons’ deed did not define the easement by reference to
“extensions of the lot lines.” The Delores contended that the term
“immediately” in the Andersons’ deed plainly limited the Andersons’
right of access to a path constituting “the shortest distance between
the lot and the waters of Smith Mountain Lake.” The Delores also
denied that the placement of the disputed structures violated any
present or prior provisions of the zoning ordinance.
Based on the parties’ pleadings, the documentary evidence, and
the argument of counsel, the circuit court held that the Delores
“have not interfered with the [Andersons’] reasonable use and
enjoyment of their easement to access Smith Mountain Lake.” The
circuit court dismissed the complaint, and the Andersons appealed
from the circuit court’s judgment.
The Andersons assert that their deed conveyed an exclusive right
of access to Smith Mountain Lake below the 800-foot contour within
the “extended lot lines” of the Anderson lot. The Andersons argue
that the Delores’ interpretation of the easement, which would allow
only a right-of-way over the most direct path to the lake,
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effectively would convert the land below the 800-foot contour into a
public beach. The Andersons further argue that the placement of the
Delores’ dock and other structures lying within the Andersons’
“extended lot lines” violated provisions of the present and prior
zoning ordinances.
In response, the Delores assert that the Andersons failed to
prove that they have an exclusive easement defined by “extended lot
lines.” The Delores contend that the Andersons are seeking to
enlarge their property rights beyond the plain language of the
easement solely in reliance on the 2006 plat. The Delores argue that
this plat lacks legal efficacy, because it was created after the
present dispute arose and does not appear in the Andersons’ chain of
title. The Delores further argue that even if the Andersons are
correct in defining the easement’s lateral dimensions by reference to
“extended lot lines,” the Andersons failed to establish that the
Delores’ dock and beach area have interfered with the Andersons’
access to Smith Mountain Lake. The Delores also maintain that the
record lacks any evidence that their dock and other structures were
constructed in violation of the present or prior zoning ordinances.
In addressing these arguments, we are guided by the following
general principles. An easement is a privilege held by one landowner
to use and enjoy certain property of another in a particular manner
and for a particular purpose. United States v. Blackman, 270 Va. 68,
76, 613 S.E.2d 442, 445 (2005); Stoney Creek Resort, Inc. v. Newman,
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240 Va. 461, 464, 397 S.E.2d 878, 880 (1990); Bunn v. Offutt, 216 Va.
681, 684, 222 S.E.2d 522, 525 (1976). We have described this
privilege as encompassing an affirmative right to use and enjoy the
encumbered property free from interference by the grantor of the
easement or by other persons. Bunn, 216 Va. at 684, 222 S.E.2d at
525. Easements can be created by express grant or reservation, or by
implication, estoppel, or prescription. Nelson v. Davis, 262 Va.
230, 235, 546 S.E.2d 712, 715 (2001); Bunn, 216 Va. at 684, 222
S.E.2d at 525.
In resolving a dispute between landowners regarding the terms of
an easement that is granted or reserved expressly by deed, we apply
the customary rules governing the construction of written documents.
Pyramid Development, L.L.C. v. D&J Associates, 262 Va. 750, 754, 553
S.E.2d 725, 728 (2001); Cushman Virginia Corp. v. Barnes, 204 Va.
245, 251, 129 S.E.2d 633, 639 (1963); Hamlin v. Pandapas, 197 Va.
659, 663-64, 90 S.E.2d 829, 833 (1956). Thus, we ascertain the
rights of the parties from the words set forth in their deeds.
Pyramid Development, 262 Va. at 754, 553 S.E.2d at 728; Cushman, 204
Va. at 251, 129 S.E.2d at 639; Hamlin, 197 Va. at 663-64, 90 S.E.2d
at 833.
A deed may expressly create an easement but fail to define
specifically its dimensions. See Waskey v. Lewis, 224 Va. 206, 211,
294 S.E.2d 879, 881 (1982); Cushman, 204 Va. at 252, 129 S.E.2d at
639. When this situation occurs, and the deed language does not
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state the object or purpose of the easement, the determination of the
easement’s scope “is made by reference to the intention of the
parties to the grant,” ascertained from the circumstances pertaining
to the parties and the land at the time of the grant. Waskey, 224
Va. at 211, 294 S.E.2d at 881; accord Cushman, 204 Va. at 252, 129
S.E.2d at 639. However, if the granting language states the object
or purpose of the easement, the dimensions of the easement may be
inferred “to be such as are reasonably sufficient for the
accomplishment of that object.” Hamlin, 197 Va. at 664, 90 S.E.2d
834.
The issuance of an injunction to prevent encroachment within the
boundaries of an easement is an equitable remedy, and the proponent
of such remedy bears the burden of proving facts establishing the
easement and the need for the relief sought. See Shenandoah Acres,
Inc. v. D.M. Conner, Inc., 256 Va. 337, 342-33, 505 S.E.2d 369, 371-
72 (1998); Rosso & Mastracco, Inc. v. Giant Food, 200 Va. 159, 161,
104 S.E.2d 776, 778-79 (1958); Harless v. Malcolm, 197 Va. 56, 57, 87
S.E.2d 817, 817-18 (1955). The decision whether to grant injunctive
relief lies within the sound discretion of the circuit court, and an
appellate court will not disturb the circuit court’s judgment on
appeal unless the judgment is plainly wrong. Nishanian v. Sirohi,
243 Va. 337, 340, 414 S.E.2d 604, 606 (1992); Blue Ridge Poultry &
Egg Co., Inc. v. Clark, 211 Va. 139, 144, 176 S.E.2d 323, 327 (1970).
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In the present case, the Andersons bore the burden of proving
that their easement below the 800-foot contour included the land on
which the Delores allegedly have encroached. See Magee v. Omansky,
187 Va. 422, 431, 46 S.E.2d 443, 448 (1948). Upon our review of the
record, we conclude that the Andersons failed to satisfy their
evidentiary burden.
The Anderson’s deed conveyed an easement “over and across the
strip of land lying immediately between the lot . . . and Smith
Mountain Lake.” By its plain terms, this deed did not specify the
lateral dimensions of the easement over the described “strip of
land.” The only reference in the deed relevant to the location of
the easement is found in the words “immediately between.” Moreover,
the deed does not contain any reference to the term “extended lot
lines.”
In the absence of express language specifying the lateral
dimensions of the easement or otherwise describing its scope, the
Andersons were required to present evidence that the grantors of the
Villamont deeds intended to convey an easement to the Andersons’
predecessors in title over property from the 800-foot contour to the
water’s edge encompassing the disputed area on which the Delores’
improvements lie. The Andersons, however, did not present such
evidence. They failed to offer any testimony addressing this issue,
and the only documents they presented were the deeds in the parties’
respective chains of title, the permits and related documentation
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concerning the Delores’ structures at issue, and the 2006 plat
prepared after the present dispute arose.
We observe that in certain instances involving subdivisions
created by a common grantor, we have determined the grantor’s intent
by reference to a common scheme of development. See Forster v. Hall,
265 Va. 293, 300, 576 S.E.2d 746, 749-50 (2003); Mid-State Equipment
Co., Inc. v. Bell, 217 Va. 133, 141, 225 S.E.2d 877, 884 (1976). We
are unable to do so in this case, however, because the record lacks
any evidence regarding other conveyances by Villamont to property
owners in the Gross Point subdivision. Therefore, we conclude that
the record before us fails to support the Andersons’ claim of
encroachment based on their theory of “extended lot lines,” and that
the circuit court was not plainly wrong in refusing the Andersons’
request for injunctive relief.
In reaching this conclusion, we do not decide the lateral
dimensions of the particular easement before us. We hold only that
with regard to the present allegations of encroachment, the Andersons
failed to meet their burden of proof. Thus, our holding is limited
to the particular encroachment alleged here by the Andersons and does
not preclude a future request for injunctive relief involving
structures other than the beach area, rip rap, and dock, as presently
configured, which are the subject of this litigation.
Finally, we find no merit in the Andersons’ request for
injunctive relief based on the Delores’ alleged zoning ordinance
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violations. Those present and prior zoning ordinances do not create
a private right of action but, like other such ordinances, authorize
localities to adopt regulations limiting the use and development of
property and to seek the imposition of penalties for violations of
those regulations. See Code §§ 15.2-2280, 15.2-2286(A)(5); Shilling
v. Jimenez, 268 Va. 202, 207-08, 597 S.E.2d 206, 209-10 (2004).
Accordingly, we hold that the circuit court did not err in declining
to grant the Andersons relief based on the zoning ordinance
provisions.
For these reasons, we will affirm the circuit court’s judgment.
Affirmed.
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