PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, * S.J.
SHOOTING POINT, L.L.C., ET AL.
v. Record No. 020801
JOHN W. WESCOAT
OPINION BY JUSTICE BARBARA MILANO KEENAN
February 28, 2003
JOHN W. WESCOAT
v. Record No. 020803
SHOOTING POINT, L.L.C., ET AL.
FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Frederick B. Lowe, Judge
In this appeal, we primarily consider whether the
chancellor erred in determining the location of an easement and
in ruling that the proposed use of the dominant estate as a
residential subdivision would not overburden the servient
estate.
John W. Wescoat owns a tract of land in Northampton County
(the Wescoat parcel) that is subject to a recorded easement in
favor of a 176-acre tract owned by Shooting Point, L.L.C. (the
Shooting Point parcel). The easement, which is 15 feet wide and
0.3 mile in length, is the only means of ingress and egress
between the Shooting Point parcel and a nearby state highway.
*
Chief Justice Carrico presided and participated in the
hearing and decision of this case prior to the effective date of
In response to a plan by Shooting Point, L.L.C. (Shooting Point)
to develop its parcel into a residential subdivision, Wescoat
filed a bill of complaint alleging, among other things, that
Shooting Point's proposed use of its parcel would "impose an
additional and unreasonable burden on the easement" over
Wescoat's land.
After hearing the evidence ore tenus, the chancellor ruled
that use of the Shooting Point parcel as a residential
subdivision would not overburden the servient estate. The
chancellor also determined that the actual location of the
easement was as shown on certain survey plats. Both Wescoat and
Shooting Point appeal.
The evidence before the chancellor showed that the Shooting
Point parcel is separated from State Highway Route 622 (Route
622) by the Wescoat parcel. The easement, which follows a dirt
road over the Wescoat parcel, is located between a field on one
side and woods on the other side. The dirt roadway has three
90-degree turns, including two turns that are "blind" where the
wooded areas obscure approaching traffic.
In 1974, Wescoat's predecessors in title executed and
recorded a written grant of easement establishing the right-of-
way. The grant described the location of the easement in the
following terms:
his retirement on January 31, 2003.
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[S]aid right-of-way easement to follow the present
road leading from Virginia State Highway Route 622 to
lands . . . known as Shooting Point Farm, said present
road running generally in a northerly direction from a
point in a turn of said Virginia State Highway Route
622 to a point at or near a corner of a certain woods,
thence turning in a generally easterly direction and
running along the northern edge of said woods to a
point at or near the edge of said woods, thence
turning in a generally northerly direction and
following along the edge of said woods to a point at
or near a corner of said woods, thence turning in a
generally easterly direction and running along the
edge of said woods until the boundary line separating
Shooting Point Farm from the [Wescoat parcel] is
reached, at which boundary line the said right-of-way
easement terminates.
The grant further described the right-of-way as "the only
easement to provide a means of ingress and egress" from Route
622 to the Shooting Point parcel. The grant did not contain a
clause limiting use of the easement.
At the time the easement was established, both the servient
estate and the dominant estate were used primarily for
agricultural and recreational purposes. In June 1979, Shooting
Point's predecessors in title conveyed 13.2 acres at the
southern border of the Shooting Point parcel to Richard E.
Meekins, Sr. The deed conveyed to Meekins the right to use the
easement as shown on a plat prepared in May 1979 by Bonifant
Land Surveys (the Bonifant plat).
In December 1999, Shooting Point purchased the dominant
estate and began planning the development of a residential
subdivision. The proposed subdivision has 18 residential lots,
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each averaging over five acres, which border a 50-acre lot to be
preserved as "open space."
Shooting Point recorded a plat in the circuit court clerk's
office, prepared by Baldwin & Gregg Surveyors (the Gregg plat),
that showed the proposed subdivision and the 15-foot-wide
easement connecting the Shooting Point parcel to Route 622. The
Gregg plat incorporated the Bonifant plat and, in depicting the
easement, adopted the Bonifant plat's courses, distances,
measuring points, and centerline.
Shooting Point also recorded a declaration of protective
covenants that incorporated the Gregg plat, and later used that
plat to describe the easement in a deed of trust conveying a
subdivision lot to a trustee. Shooting Point conveyed certain
other subdivision lots in five separate deeds, each conveying
the right to use the easement and referencing the Gregg plat's
depiction of the right-of-way.
In January 2000, Wescoat sent a letter to some of the
subdivision lot purchasers advising them that the easement was
restricted to a width of 15 feet. Wescoat further informed the
purchasers that the right-of-way would be "clearly marked" to
make them aware of the easement's width. Wescoat's son placed
two stakes 15 feet apart at the easement's entrance near Route
622 that straddled the existing usage of the easement. A large
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sign was placed near the stakes that read, "Begin 15 Foot Right
of Way."
In February 2000, Wescoat filed a bill of complaint against
Shooting Point alleging that Shooting Point's proposed use of
its parcel as a residential subdivision was not reasonable and
would create "an additional and unreasonable burden" on the
easement. Wescoat asked the chancellor, among other things, to
enjoin Shooting Point from selling and conveying the remaining
lots in the proposed subdivision.
In January 2001, Wescoat employed George E. Walters, a
certified land surveyor, to survey the easement and to place
markers delineating its course. After Walters situated the
markers on the property, Wescoat's son placed wooden posts
outside those markers along the roadway to designate the
easement's course. In general, the pathway created by the posts
followed the line of the woods more closely than the existing
roadway and resulted in "sharper" 90-degree turns.
In February 2001, Wescoat filed a bill of complaint for
declaratory judgment against Shooting Point, L.L.C., Shooting
Point Property Owners Association, Inc. (collectively, Shooting
Point), and others, seeking various rulings concerning Shooting
Point's use of its property. The chancellor consolidated
Wescoat's two suits for trial.
5
Before trial, Shooting Point requested leave to file a
cross-bill in Wescoat's declaratory judgment suit. In its
proposed cross-bill, Shooting Point sought a determination of
the easement's location and removal of the posts that Wescoat's
son had placed along the course of the easement. The chancellor
denied Shooting Point's motion.
Shooting Point also filed a motion in limine to exclude
from evidence Walters' testimony and the two revised plats he
prepared depicting the easement (the Walters plats) on the
ground that this evidence was not timely disclosed. Shooting
Point did not receive copies of Walters' revised plats until the
day before trial.
In response to the motion in limine, Wescoat noted that no
order had been entered regulating discovery in the case, and
that Shooting Point also was not timely in its disclosures,
having designated an expert witness only the day before trial.
The chancellor denied Shooting Point's motion in limine.
On the first day of trial, Wescoat moved the chancellor to
continue the case on the ground that the issue of the easement's
location was not properly before the court. Shooting Point
opposed the motion, arguing that the issue was "directly" before
the court. The chancellor denied the continuance motion.
At trial, the chancellor received evidence from expert
witnesses indicating that the proposed residential subdivision
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would generate daily about ten vehicle trips per lot. Thus, the
proposed subdivision would result in an additional 180 trips
daily over the easement.
Wescoat's son, John W. Wescoat, Jr., testified that
vehicles traveling in opposite directions on the easement could
not pass at the same location. John stated that the worn
roadway remained the same from 1977 to 1999, and that, after
Shooting Point purchased its parcel, the traffic on the easement
increased and the roadway became wider as motorists drove around
"mudholes" in the easement and "cut" corners at the turns in the
roadway.
Curtis Jones, Jr., Wescoat's cousin, leased both the
Wescoat and Shooting Point parcels for farming purposes. Jones
testified that he and his employees make heavy use of the
easement when they plant, maintain, irrigate, and harvest the
crops.
Wescoat presented the testimony of Walters, who qualified
as an expert witness on the subject of land surveying. He
testified that the easement was first surveyed in 1979 by P.
Bonifant, and that Walters created his plats in an attempt to
"resurvey" the easement shown on the Bonifant plat.
Walters stated that he first chose a buried survey pin, or
"rebar," that he discovered in the middle of the existing
roadway near Route 622 to mark the centerline of the easement,
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and that he originally used that centerline in his plat to
delineate the easement's course. However, after a consultation
with Bonifant, Walters later concluded that a " 'bent rebar'
marker," located approximately nine feet east of the other
"rebar," was the marker indicating the correct location of the
easement's centerline. Walters testified that he revised his
plats to reflect the "bent rebar" as the centerline of the
easement, which resulted in a nine-foot eastward shift of the
easement's entrance onto Route 622.
Walters stated that the course designated on his revised
plats reproduced the easement as shown on both the Gregg and the
Bonifant plats. Walters opined that the present usage of the
easement had moved westward since the time of Bonifant's survey
and explained that the paths of farm roads "tend to wander" as
motorists drive vehicles around potholes and tree limbs that
protrude into roadways.
Shooting Point presented the expert testimony of James B.
Latimer, II, a licensed land surveyor, who testified that the
easement's centerline in the Bonifant plat "is closer to the
east, closer to the woods than the physical road that's there."
He also stated that the roadway has always been in its present
location.
Shooting Point also submitted expert testimony from
Millison E. Duff, Jr., a licensed surveyor and president of
8
Baldwin & Gregg Surveyors. Duff stated that the Gregg plat
adopted the Bonifant plat's depiction of the easement because
that depiction "appeared to follow generally along the road that
we had evidence of being in existence at that time."
Duff further testified that the "bent rebar" located about
nine feet east of the center of the existing roadway was the
survey pin that Bonifant used to mark the easement's centerline.
Duff stated that if Bonifant's centerline were followed, the
eastern border of the easement would "go right through an 18-
inch pine tree," and motorists traveling on the easement would
"scrape" the right side of their vehicles against the tree.
Duff said that he did not believe that anyone presently could
determine the precise location of the roadway in 1974 "short of
doing a soils analysis." However, he concluded that the
Bonifant plat was the "best evidence" available concerning the
easement's location when the Gregg plat was prepared in 1999.
At the conclusion of the evidence, the chancellor held that
the Bonifant plat, the Gregg plat, and the Walters plats were
the "best evidence" of the easement's location, and that the
easement's location was accurately depicted on those plats. The
chancellor stated that "[a]ny attempt to establish an alteration
[of the designated easement] would simply amount to no more than
guesswork or speculation on the part of the Court." The
chancellor also held that use of the Shooting Point parcel as a
9
residential subdivision would not overburden the servient
estate.
Shooting Point argues that the chancellor erred in denying
its motion for leave to file a cross-bill and its motion in
limine to exclude Walters' testimony and survey plats. In
support of these contentions, Shooting Point advances the same
arguments it made before the chancellor. We disagree with
Shooting Point's arguments.
The chancellor's rulings on both pretrial motions were
proper exercises of his discretion. First, Shooting Point did
not need to file a cross-bill to raise the issue of the
easement's location, which already was before the court as
Shooting Point observed in its opposition to Wescoat's
continuance motion. Moreover, the location of the easement was
the subject of extensive evidence presented by both parties
during trial and is before us in this appeal. Second, the
chancellor's ruling denying the motion in limine is supported by
the materiality of Walters' testimony and his plats to the
issues being tried, and the absence of any order requiring
earlier disclosure of discoverable information.
Shooting Point next argues that the chancellor erred in
concluding that the Bonifant plat, the Gregg plat, and the
Walters plats accurately depict the easement's location.
Shooting Point contends that the chancellor improperly ignored
10
evidence of existing usage and established a new easement
location. Shooting Point asserts that a literal application of
the Bonifant and Walters plats results in an easement that is
unreasonably close to the line of woods, includes a pine tree
over 18 inches in diameter, and contains sharp turns that impede
the passage of larger vehicles. We disagree with Shooting
Point's arguments.
An established standard of review governs our consideration
of both this issue and the issue of the burden placed on the
servient estate. The chancellor, as trier of fact, evaluated
the witnesses' testimony and their credibility. Tauber v.
Commonwealth, 263 Va. 520, 526, 562 S.E.2d 118, 120 (2002);
Johnson v. Cauley, 262 Va. 40, 44, 546 S.E.2d 681, 684 (2001).
Because he heard the evidence ore tenus, the chancellor's decree
is entitled to the same weight as a jury verdict. Chesterfield
Meadows Shopping Ctr. Assocs., L.P. v. Smith, 264 Va. 350, 355,
568 S.E.2d 676, 679 (2002); Johnson, 262 Va. at 44, 546 S.E.2d
at 684; Hoffman Family, L.L.C. v. Mill Two Assocs. P'ship, 259
Va. 685, 696, 529 S.E.2d 318, 325 (2000). Thus, on appeal, we
will not set aside the chancellor's findings unless they are
plainly wrong or without evidence to support them. Tauber, 263
Va. at 526, 562 S.E.2d at 120; Hudson v. Pillow, 261 Va. 296,
302, 541 S.E.2d 556, 560 (2001).
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Here, the chancellor received substantial evidence
supporting his determination of the easement's location. The
Bonifant Plat, the first plat depicting the easement, was
prepared only five years after the easement was established.
The Gregg plat and the revised Walters plats placed the easement
at the same location detailed in the Bonifant plat.
The chancellor's determination also is supported by
Shooting Point's own extensive use of the Bonifant plat's
location of the easement. Shooting Point implicitly agreed to
the accuracy of this location by referring to the Gregg plat in
five deeds conveying lots to subdivision purchasers, in one deed
of trust, and in Shooting Point's declaration of protective
covenants. In addition, Shooting Point's expert, Duff,
testified that the Bonifant plat was the "best evidence"
available of the easement's location when the Gregg plat was
prepared.
We disagree with Shooting Point's assertion that a literal
application of these plats incorrectly would place the easement
too close to the woods. Although Duff initially testified that
the eastern border of the easement, as shown in the plats, would
"go right through an 18-inch pine tree," he effectively modified
this statement when he later testified that a vehicle traveling
on the easement would merely "scrape" its side against the tree.
Also, the chancellor received testimony indicating that the path
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of the worn roadway had "migrated" away from the woods since the
time of Bonifant's survey.
We also find no merit in Shooting Point's contention that
evidence of existing usage showed that Wescoat consented to a
change in the easement's location. We initially observe that,
generally, when a fixed location of a granted easement is
established, that location may be changed only with the express
or implied consent of the persons interested. Buxton v. Murch,
249 Va. 502, 508, 457 S.E.2d 81, 84 (1995); Fairfax County Park
Auth. v. Atkisson, 248 Va. 142, 148, 445 S.E.2d 101, 104 (1994);
Wagoner v. Jack's Creek Coal Corp., 199 Va. 741, 746, 101 S.E.2d
627, 630 (1958). Thus, in the present case, evidence of
existing usage of the easement was competent evidence for the
chancellor's consideration.
Here, however, the evidence of usage did not establish
consent by Wescoat to a new easement location. Although Curtis
Jones, Wescoat's cousin and tenant, sometimes drove his vehicles
outside the defined course of the easement as a matter of
convenience, his actions did not indicate that Wescoat consented
to a different course of the roadway. Similarly, Wescoat's
consent cannot be inferred from evidence that after Shooting
Point purchased its parcel, the worn pathways in the road
widened as motorists drove their vehicles around mud holes and
"cut" corners to ease the sharp turns along the roadway.
13
The placement of stakes at the easement entrance, and posts
along the course of the easement, also did not establish
Wescoat's consent to a different fixed location for the right-
of-way. Although Wescoat's letter to the subdivision lot owners
advised that the easement would be "clearly marked," only two
stakes were placed at the easement's entrance near Route 622.
The following month, Wescoat initiated the present suit against
Shooting Point.
While some posts later were placed along the course of the
worn roadway, the evidence showed that the path marked by the
posts generally followed the line of woods more closely than the
existing roadway and resulted in "sharper" 90-degree turns. In
addition, both Shooting Point and Wescoat disputed that the
pathway created by the posts was the true easement location. At
trial, Shooting Point asserted that the posts improperly
restricted its use of the easement. Wescoat argued that the
revised Walters plats, which shifted the easement about nine
feet to the east of the posts at the entrance onto Route 622,
depicted the correct location of the right-of-way. Thus, we
conclude that the record did not establish an express or implied
agreement by Wescoat to effect a change in location of the
easement, and we hold that the chancellor did not err in his
determination of the easement's location.
14
Wescoat assigns error to the chancellor's ruling that
Shooting Point's use of its parcel as a residential subdivision
would not overburden the servient estate. Wescoat argues that
this use would create an additional burden on his property that
would adversely impact his ability to use the easement. He
alternatively contends that even if Shooting Point's use would
only result in an increase in degree of the existing burden,
that increase would have the practical effect of imposing an
additional burden on the servient estate. We disagree with
Wescoat's arguments.
A party alleging that a particular use of an easement is
unreasonably burdensome has the burden of proving his
allegation. Shenandoah Acres, Inc. v. D.M. Conner, Inc., 256
Va. 337, 342, 505 S.E.2d 369, 371 (1998); Hayes v. Aquia Marina,
Inc., 243 Va. 255, 259, 414 S.E.2d 820, 822 (1992). Generally,
when an easement is created by grant or reservation and the
instrument creating the easement does not limit its use, the
easement may be used for "any purpose to which the dominant
estate may then, or in the future, reasonably be devoted." Id.
at 258, 414 S.E.2d at 822 (quoting Cushman Virginia Corp. v.
Barnes, 204 Va. 245, 253, 129 S.E.2d 633, 639 (1963)); see also
Collins v. Fuller, 251 Va. 70, 72, 466 S.E.2d 98, 99 (1996).
However, this general rule is subject to the qualification that
no use may be made of the easement, different from that
15
established when the easement was created, which imposes an
additional burden on the servient estate. Id.; Hayes, 243 Va.
at 258-59, 414 S.E.2d at 822; Cushman, 204 Va. at 253, 129
S.E.2d at 639-40.
In the present case, the 1974 grant did not restrict use of
the easement. Therefore, we consider whether the evidence
supports a conclusion that Shooting Point's subdivision of the
dominant estate is a reasonable use of the parcel that would not
overburden the servient estate.
Our decisions in Hayes and Cushman illustrate the nature of
this inquiry. In Hayes, an operator of a marina on the dominant
estate, a 2.58-acre tract, proposed to expand its marina
facility from 84 to 280 boat slips. The easement providing
access to the marina was a private roadway about 1,120 feet long
and 15 feet wide along its entire course. The agreement
creating the easement did not restrict its use. 243 Va. at 256-
59, 414 S.E.2d at 820-22.
We held that the record supported the chancellor's
conclusion that the proposed expansion would not unreasonably
burden the servient estate, although the "degree of burden"
would be increased. We assumed, without deciding, that an
expanded use of a dominant estate could be of such degree as to
create an additional burden on a servient estate, but concluded
16
that the proposed marina expansion was not shown to create such
an additional burden. Id. at 260, 414 S.E.2d at 823.
Similarly, in Cushman, the instrument creating the easement
did not contain any language limiting the easement's use. When
the easement was established, the dominant estate, a 126.67-acre
tract, had two dwelling houses and was used as a farm. The
owner of the dominant estate proposed to subdivide his land for
a residential and commercial development that would include 34
residential lots. 204 Va. at 252-53, 129 S.E.2d at 639-40.
We reversed the chancellor's decree limiting the easement
to its original uses, stating:
The fact that the dominant estate is divided and a
portion or portions conveyed away does not, in and of
itself, mean that an additional burden is imposed upon
the servient estate. The result may be that the
degree of burden is increased, but that is not
sufficient to deny use of the right of way to an owner
of a portion so conveyed.
Id. at 253, 129 S.E.2d at 640. Emphasis added.
Applying these principles to the present case, we hold that
the subdivision of the 176-acre Shooting Point parcel into 18
residential lots is, in the language of Cushman, a purpose to
which the dominant estate may be reasonably devoted. See id.,
129 S.E.2d at 639. Moreover, the record supports the
chancellor's conclusion that Shooting Point's proposed use of
the easement would not impose an unreasonable burden on the
servient estate. Although the number of vehicles using the
17
easement would increase substantially as a result of the
proposed use, this fact demonstrates only an increase in degree
of burden, not an imposition of an additional burden, on the
servient estate. Like the facts underlying our decision in
Hayes, the facts here do not support consideration of a further
question whether an increased degree of burden could be so great
as to impose an additional burden on the servient estate.
For these reasons, we will affirm the chancellor's
judgment.
Affirmed.
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