Present: All the Justices
UNITED STATES OF AMERICA
OPINION BY
v. Record No. 042404 JUSTICE LAWRENCE L. KOONTZ, JR.
June 9, 2005
PETER F. BLACKMAN
UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
Pursuant to Article VI, Section 1 of the Constitution of
Virginia and our Rule 5:42, the United States District Court for
the Western District of Virginia (“district court”), by its
order entered October 21, 2004, certified to this Court the
following questions of law:
A. In Virginia in 1973, would a conveyance of a
negative easement in gross by a private property owner
to a private party for the purpose of land
conservation and historic preservation be valid?
B. In Virginia in 1973, would it be valid for a group
of private property owners to grant to a private
grantee restrictions for the purpose of land
conservation and historic preservation on their
individually-owned parcels of property, when (1) the
property was not being transferred by a common
grantor, (2) each grant was made in consideration of
similar grants to the grantee, and (3) the grantee did
not own any property benefited by the restrictions?
By order entered January 3, 2005, we accepted the certified
questions.
BACKGROUND
The relevant facts are recited in the order of
certification as follows:
The Green Springs Historic District (the
“District”) is an area of roughly 14,000 acres in
Louisa County that was settled in the 1700s. Much of
the land in this area has historically been used for
agricultural purposes, and this agricultural setting
remains today. Because the land has been continuously
farmed for almost three centuries, many of the homes
and farms have been preserved in their original
context with little alteration.
In the early 1970s, the Commonwealth of Virginia
bought two hundred acres of land in the Green Springs
area with the intention of building a prison. There
was much local opposition, and some landowners
expressed the belief that the prison would damage the
character of their historic community. Reacting to
this opposition, the then-governor of Virginia
announced in 1972 that the state would not build the
prison facility in the area if that area could be
preserved. In response to the governor’s challenge,
local citizens organized a non-profit group dubbed
Historic Green Springs, Inc. (“HGSI”), which obtained
donations of easements for land conservation and
historic preservation from landowners and initiated an
effort to have the area designated as a National
Historic Landmark District. The Green Springs
Historic District was listed on the National Register
of Historic Places in March of 1973, and was
ultimately designated as a National Historic Landmark
in 1974. See Historic Green Springs, Inc. v.
Bergland, 497 F.Supp 839, 842-43 (E.D. Va. 1980)
(discussing the history of the District).
By a “Deed of Easement” dated March 19, 1973 (the
“Easement”), D.L. Atkins and Frances Atkins granted to
HGSI an assignable easement over several parcels of
their property, including Eastern View Farm. The
Easement states in part that “in consideration of the
grant to the Grantee of similar easements in gross by
other owners of land in the said Green Springs
Historic District for similar purposes, the Grantors
[D.L. Atkins and Frances Atkins] do hereby grant and
convey to the Grantee [HGSI] an easement in gross
restricting in perpetuity, in the manner hereinafter
set forth, the use of the following described tracts
of land, together with the improvements erected
thereon.” In 1978, HGSI decided to convey its entire
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portfolio of easements to the United States. In the
resulting deed of easement to the United States, all
of the original grantors of similar easements within
the District acknowledged their agreement to the
conveyance by affixing their signatures to the deed.
The National Park Service (“NPS”) now administers
these easements, including the Easement at issue, on
behalf of the United States as part of the Green
Springs National Historic Landmark District. The
Easement at issue provides that the manor house on
Eastern View Farm:
will be maintained and preserved in its
present state as nearly as practicable,
though structural changes, alterations,
additions, or improvements as would not in
the opinion of the Grantee fundamentally
alter its historic character or its setting
may be made thereto by the owner, provided
that the prior written approval of the
Grantee to such change, alteration,
addition, or improvements shall have been
obtained. This provision applies as well to
those 18th and 19th Century outbuildings
located on the described property.
Peter F. Blackman (“Blackman”) purchased Eastern
View Farm on July 1, 2002. Blackman wishes to
renovate and rehabilitate the manor house.
Specifically, Blackman, inter alia, seeks to remove
the existing front porch on the manor house, replace
the siding, and create an addition. In support of
these intended alternations, Blackman submitted
several sets of renovation plans to the NPS for
review, but the NPS repeatedly denied certain aspects
of his plans. Rather than working with the NPS for
final approval of his plan, Blackman’s attorney stated
in a latter dated January 13, 2004 that Blackman would
“commence the Rehabilitation at a time of his
choosing, without further notice to [NPS], in
accordance with the attached elevations.”
Subsequently, Blackman removed the porch from his
house. The United States filed the complaint in this
case June 14, 2004, and on June 16, 2004 Judge James
C. Turk issued a temporary restraining order
restraining Blackman from “commencing and/or
continuing renovation work to the manor house located
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on the Eastern View Parcel, in the Green Springs
National Historic Landmark District, unless he has
first obtained written approval from the National Park
Service.”
In defense of his actions, Blackman argues that,
inter alia, the original deed of easement granted to
HGSI was invalid because at the time it was
purportedly created, Virginia law did not recognize
any kind of negative easement in gross, including such
easements for the purpose of land conservation and
historic preservation.
In its order, the district court correctly states that we
have not directly addressed the issue of the validity of
negative easements in gross in our prior decisions. While also
correctly noting that only certain types of easements were
recognized at common law, the district court references the
statement in Tardy v. Creasy, 81 Va. (6 Hans.) 553, 557 (1886),
that “there are many other easements which have been recognized,
and some of them have been of a novel kind,” for the proposition
that prior to 1973 “Tardy leaves open the possibility that other
easements, including negative easements related to land
conservation and historic preservation, would be valid if
sufficiently related to the land.”
DISCUSSION
The first question certified by the district court presents
the issue of law whether, in 1973, the law of Virginia permitted
an individual landowner to grant a negative easement in gross to
a third party for the purpose of land conservation and historic
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preservation. As indicated by the district court, if the law of
this Commonwealth did not recognize the validity of such an
easement at that time, then the purported property restrictions
granted to HGSI are invalid and would be unenforceable by HGSI’s
transferee, the United States.
Although previously we have not addressed the issue of the
validity of a negative easement in gross under the law existing
in 1973, the issue is of considerable significance beyond the
specific historic district involved in this case. By the brief
of amici curiae filed in this case, we are advised that at least
seven other charitable entities hold conservation or historic
preservation easements, many of them easements in gross,
conveyed prior to 1973.∗ Underlying the issue is a degree of
apparent conflict between the common law preference for
unrestricted rights of ownership of real property and the public
policy of this Commonwealth as expressed in Article XI of the
Constitution of Virginia, ratified by the people of this
Commonwealth in 1970, that “it shall be the policy of this
∗
The brief was filed on behalf of Historic Green Springs,
Inc., Association for the Preservation of Virginia Antiquities,
The Chesapeake Bay Foundation, Inc., Historic Richmond
Foundation, National Trust for Historic Preservation in the
United States, The Nature Conservancy, Piedmont Environmental
Council, and the Waterford Foundation. These organizations
assert that thousands of acres and numerous historically
significant sites and buildings located in this Commonwealth are
currently protected by easements of the type at issue in this
case.
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Commonwealth to conserve . . . its historical sites and
buildings.” Accordingly, we take this opportunity to discuss in
some detail the relevant law.
“An easement is ‘a privilege without profit, which the
owner of one tenement has a right to enjoy in respect of that
tenement in or over the tenement of another person; by reason
whereof the latter is obliged to suffer, or refrain from doing
something on his own tenement for the advantage of the
former.’ ” Amstutz v. Everett Jones Lumber Corp., 268 Va. 551,
559, 604 S.E.2d 437, 441 (2004) (quoting Stevenson v. Wallace,
68 Va. (27 Gratt.) 77, 87 (1876); accord Brown v. Haley, 233 Va.
210, 216, 355 S.E.2d 563, 567-68 (1987). Easements are
described as being “affirmative” easements when they convey
privileges on the part of one person or owner of land (the
“dominant tract”) to use the land of another (the “servient
tract”) in a particular manner or for a particular purpose.
Easements are described as being “negative” when they convey
rights to demand that the owner of the servient tract refrain
from certain otherwise permissible uses of his own land. Bunn
v. Offutt, 216 Va. 681, 684, 222 S.E.2d 522, 525 (1976).
Negative easements, also known as servitudes, do not bestow
upon the owner of the dominant tract the right to travel
physically upon the servient tract, which is the feature common
to all affirmative easements, but only the legal right to object
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to a use of the servient tract by its owner inconsistent with
the terms of the easement. In this sense, negative easements
have been described as consisting solely of “a veto power.”
Prospect Dev. Co. v. Bershader, 258 Va. 75, 89, 515 S.E.2d 291,
299 (1999).
At common law, an owner of land was not permitted at his
pleasure to create easements of every novel character and annex
them to the land so that the land would be burdened with the
easement when the land was conveyed to subsequent grantees.
Rather, the landowner was limited to the creation of easements
permitted by the common law or by statute. See Tardy, 81 Va. (6
Hans.) at 557. The traditional negative easements recognized at
common law were those created to protect the flow of air, light,
and artificial streams of water, and to ensure the subjacent and
lateral support of buildings or land. See Andrew Dana & Michael
Ramsey, Conservation Easements and the Common Law, 8 Stan.
Envtl. L.J. 2, 13 (1989); see also Tardy, 81 Va. (6 Hans.) at
557, 563.
Easements, whether affirmative or negative, are classified
as either “appurtenant” or “in gross.” An easement appurtenant,
also known as a pure easement, has both a dominant and a
servient tract and is capable of being transferred or inherited.
It frequently is said that an easement appurtenant “runs with
the land,” which is to say that the benefit conveyed by or the
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duty owed under the easement passes with the ownership of the
land to which it is appurtenant. See Greenan v. Solomon, 252
Va. 50, 54, 472 S.E.2d 54, 57 (1996); Lester Coal Corp. v.
Lester, 203 Va. 93, 97, 122 S.E.2d 901, 904 (1961). The four
negative easements traditionally recognized at common law are,
by their nature, easements appurtenant, as their intent is to
benefit an adjoining or nearby parcel of land. See Federico
Cheever, Environmental Law: Public Good and Private Magic in the
Law of Land Trusts and Conservation Easements: A Happy Present
and a Troubled Future, 73 Denv. U. L. Rev. 1077, 1081 (1996).
In contrast, an easement in gross, sometimes called a
personal easement, is an easement “which is not appurtenant to
any estate in land, but in which the servitude is imposed upon
land with the benefit thereof running to an individual.” Lester
Coal Corp., 203 Va. at 97, 122 S.E.2d at 904. At common law,
easements in gross were strongly disfavored because they were
viewed as interfering with the free use of land. Thus, the
common law rule of long standing is that an easement is “never
presumed to be in gross when it [can] fairly be construed to be
appurtenant to land.” French v. Williams, 82 Va. 462, 468, 4
S.E. 591, 594 (1886). For an easement to be treated as being in
gross, the deed or other instrument granting the easement must
plainly manifest that the parties so intended. Prospect Dev.
Co., 258 Va. at 90, 515 S.E.2d at 299.
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Because easements in gross were disfavored by the common
law, they could neither be transferred by the original grantee
nor pass by inheritance. Lester Coal Corp., 203 Va. at 97, 122
S.E.2d at 904. By statute, however, Virginia long ago abrogated
common law restrictions on the transfer of interests in land “by
declaring that any interest in or claim to real estate may be
disposed of by deed or will.” Carrington v. Goddin, 54 Va. (13
Gratt.) 587, 599-600 (1857) (internal quotation marks omitted).
Pursuant to this statutory change in the common law rule,
currently embodied in Code § 55-6, we have recognized that an
affirmative easement in gross is an interest in land that may be
disposed of by deed or will. City of Richmond v. Richmond Sand
& Gravel Co., 123 Va. 1, 9, 96 S.E. 204, 207 (1918). Following
this Court’s decision in Lester Coal Corp., which in dictum made
reference to the common law rule that easements in gross
remained non-transferable by deed or will, 203 Va. at 97, 122
S.E.2d at 904, Code § 55-6 was amended “to make clear the
transferability of easements in gross.” 1962 Va. Acts ch. 169.
Since 1962, Code § 55-6, in pertinent part, has expressly
provided that “[a]ny interest in or claim to real estate,
including easements in gross, may be disposed of by deed or
will.” (Emphasis added). We subsequently acknowledged the
intent of this statutory amendment in Corbett v. Ruben, 223 Va.
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468, 472 n.2, 290 S.E.2d 847, 849 n.2 (1982) and Hise v. BARC
Elec. Coop., 254 Va. 341, 344, 492 S.E.2d 154, 157 (1997).
Code § 55-6 unambiguously speaks to “easements in gross” as
interests in real estate capable of disposition by deed or will.
There is no suggestion in this language that the statute was
intended to apply only to affirmative easements in gross and not
to negative easements in gross. The significance of this
statutory change in the common law is manifest. Easements in
gross, whether affirmative or negative, are now recognized
interests in real property, rather than merely personal
covenants not capable of being disposed of by deed or will as
was the case under common law. Moreover, as pertinent to the
present inquiry, such was the case well before 1973 in this
Commonwealth.
The 1962 amendment and clarification of Code § 55-6 with
regard to the transferability of easements in gross has
facilitated, in part, Virginia’s long recognition of the value
of conserving and preserving the natural beauty and historic
sites and buildings in which it richly abounds. In 1966, the
General Assembly enacted the Open-Space Land Act, 1966 Va. Acts
ch. 461. This Act, currently found in Code §§ 10.1-1700 through
-1705, is intended to encourage the acquisition by certain
public bodies of fee simple title or “easements in gross or such
other interests in real estate” that are designed to maintain
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the preservation or provision of open-space land. Code § 10.1-
1703. By definition, open-space land includes land that is
preserved for “historic or scenic purposes.” Code § 10.1-1700.
Additionally, in 1966, the General Assembly enacted statutes
creating the Virginia Outdoors Foundation, 1966 Va. Acts. ch.
525, and the Virginia Historic Landmarks Commission, 1966 Va.
Acts ch. 632. As currently expressed in Code § 10.1-1800, the
purpose of the Virginia Outdoors Foundation is “to promote the
preservation of open-space lands.” The Virginia Historic
Landmarks Commission, now known as the Virginia Board of
Historic Resources, was charged with the designation of historic
landmarks and districts. 1966 Va. Acts ch. 632, § 4(A). These
statutes evince a strong public policy in favor of land
conservation and preservation of historic sites and buildings.
As noted above, this public policy was expressly embodied
in Article XI of the Constitution of Virginia which, since 1970,
has provided:
§ 1. To the end that the people have clean air,
pure water, and the use and enjoyment for recreation
of adequate public lands, waters, and other natural
resources, it shall be the policy of the Commonwealth
to conserve, develop, and utilize its natural
resources, its public lands, and its historical sites
and buildings. Further, it shall be the
Commonwealth’s policy to protect its atmosphere,
lands, and waters from pollution, impairment, or
destruction, for the benefit, enjoyment, and general
welfare of the people of the Commonwealth.
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§ 2. In the furtherance of such policy, the
General Assembly may undertake the conservation,
development, or utilization of lands or natural
resources of the Commonwealth, the acquisition and
protection of historical sites and buildings, and the
protection of its atmosphere, lands, and waters from
pollution, impairment, or destruction, by agencies of
the Commonwealth or by the creation of public
authorities, or by leases or other contracts with
agencies of the United States, with other states, with
units of government in the Commonwealth, or with
private persons or corporations.
In further support of this public policy, the General
Assembly in 1988 enacted the Virginia Conservation Easement Act
(“VCEA”), Code §§ 10.1-1009 through -1016. In pertinent part,
as defined in the VCEA a conservation easement is “a
nonpossessory interest of a holder in real property, whether
easement appurtenant or in gross . . . the purposes of which
include retaining or protecting natural or open-space values of
real property . . . or preserving the historical, architectural
or archaeological aspects of real property.” Code § 10.1-1009.
Mindful of this background, we now consider the validity of
the negative easement in gross granted to HGSI by the Atkinses
in the 1973 deed and subsequently conveyed, with the Atkinses’
concurrence, to the United States in 1978. The validity of that
easement is dependent upon whether it was a type of negative
easement that would have been recognized by the law of Virginia
in 1973. For the reasons that follow, we conclude that the 1973
deed created a valid easement.
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Blackman contends that a negative easement in gross for the
purpose of land conservation and historic preservation was not
valid in this Commonwealth until 1988 with the enactment of the
VCEA. The thrust of this contention is that the VCEA would have
been unnecessary if such easements were already valid. We are
not persuaded by this contention.
Blackman’s contention suggests an analysis devoid of due
consideration of the pertinent statutory and constitutional
provisions in effect in the Commonwealth long before the 1988
enactment of the VCEA. As discussed supra, Code § 55-6 since at
least 1962 has recognized easements in gross, whether
affirmative or negative, as interests in real property capable
of being transferred by deed or will. Because easements in
gross were not transferable at common law and, indeed, were
strongly disfavored, it is self-evident that this statute
materially changed the common law and recognized “interest[s] in
or claim[s] to real estate” beyond those traditionally
recognized at common law. Moreover, in the subsequent 1966
enactment of the Open-Space Land Act, the General Assembly
specifically recognized easements in gross when it authorized
acquisition by certain public bodies of easements in gross in
real property which is preserved for historic purposes. Such
easements under that Act, under certain circumstances, would be
negative easements in gross. Accordingly, while we continue to
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be of opinion that “the law will not permit a land-owner to
create easements of every novel character and attach them to the
soil,” Tardy, 81 Va. (6 Hans.) at 557, the easement at issue in
the present case is not of a novel character and is consistent
with the statutory recognition of negative easements in gross
for conservation and historic purposes.
More specifically, it does not necessarily follow that
conservation easements were not valid in this Commonwealth prior
to the enactment of the VCEA. There is ample evidence that
similar interests in land were already recognized by statute
under the Open-Space Land Act. Moreover, as referenced by the
amici curiae in their brief, it is a matter of public record
that conservation easements or similar interests in land, far
from being unique to the Historic Green Springs conservation
effort, have been in common use in Virginia for many years
before the adoption of the VCEA.
In enacting the VCEA, the General Assembly undertook to
comprehensively address various land interests that can be used
for conserving and preserving the natural and historical nature
of property. In so doing, the General Assembly addressed the
use of such easements in a manner consistent with Code § 55-6,
the Open-Space Land Act, and the public policy favoring land
conservation and preservation of historic sites and buildings in
the Commonwealth as expressed in the Constitution of Virginia.
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The readily apparent purpose of the VCEA was to codify and
consolidate the law of conservation easements to promote the
granting of such easements to charitable organizations. When so
viewed, it is clear that the VCEA did not create a new right to
burden land by a negative easement in gross for the purpose of
land conservation and historic preservation. Rather, it
facilitated the continued creation of such easements by
providing a clear statutory framework under which tax exemptions
are made available to charitable organizations devoted to those
purposes and tax benefits and incentives are provided to the
grantors of such easements.
The fact that such easements were being conveyed without
these benefits and incentives prior to the enactment of the VCEA
does not support Blackman’s contention that these easements were
invalid at that time. To the contrary, Virginia not only was
committed to encouraging and supporting land conservation and
the preservation of historic sites and buildings in the
Commonwealth, as evidenced by the constitutional and statutory
expressions of that public policy discussed supra, but also
recognized negative easements in gross created for these
purposes as valid in 1973. Indeed, as noted by the district
court, the granting of conservation easements by the landowners
in the Historic Green Springs District was the direct result of
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the encouragement by the Governor for the express purpose of
preserving the historic and natural beauty of that unique area.
For these reasons, we hold that the law of Virginia in 1973
did recognize as valid a negative easement in gross created for
the purpose of land conservation and historic preservation.
Accordingly, we answer the first certified question in the
affirmative.
Because we deem our answer to the first certified question
to be dispositive, we will not address the second certified
question.
First certified question answered in the affirmative.
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