Present: All the Justices
BRUCE A. TAYLOR, ET AL.
v. Record No. 012583 OPINION BY JUSTICE CYNTHIA D. KINSER
SEPTEMBER 13, 2002
RICHARD R. McCONCHIE, ET AL.
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
This appeal arises from an amended bill of complaint
filed by the appellants, Bruce A. and Karen D. Taylor (the
Taylors), seeking injunctive and declaratory relief with
regard to an easement for access to their property located
in Botetourt County. Because we conclude that the circuit
court did not err in finding that the original easement had
been extinguished and that, under the terms of a new,
relocated easement, the Taylors’ access to their property
is now limited to vehicular and pedestrian traffic, we will
affirm that aspect of the court’s judgment. However, we
hold that the court abused its discretion in refusing to
allow the Taylors to present evidence about their ability
to access their property in light of a post-trial survey
changing a small portion of the easement. Accordingly, we
will remand for further proceedings.
I. FACTS AND MATERIAL PROCEEDINGS
The easement at issue was first created in 1949 when
Philip and Kate S. Kohen conveyed a 12-acre parcel to Mary
Ann Jane Sink; the parcel was subsequently conveyed to
Charles L. Sink (Sink). The deed from the Kohens reserved
an easement (the Kohen easement) over the property being
conveyed “so that [the Kohens could] get to their remaining
lands adjoining the land sold by this deed,-from the
[present Virginia Secondary Route 635].” The deed
specified that the “road-way . . . shall be of sufficient
width to permit the free and convenient passage of motor
vehicles and farm vehicles with loads of hay and other farm
products, and with further sufficient width for cuts and
fills, and to permit the convenient working of said road.”
In 1997, the Taylors entered into a real estate
contract to purchase a parcel of property, which is the
dominant estate served by the easement at issue, from
Patrick D. and Ann M. McClave (the McClaves). The contract
between those parties provided, in pertinent part, that:
The Sellers herein covenant[] that [they have] a
legal right-of-way through the lands of the
adjoining property owners to the State Road for
the new road [the Sellers have] constructed and
furthermore that said right-of-way may be used if
the land subject to this contract is subdivided.
This covenant shall survive closing.
After the execution of this contract with the Taylors
but prior to closing, the McClaves entered into a “DEED OF
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EASEMENT AND AGREEMENT” with Sink. 1 The agreement expressly
abandoned the Kohen easement (referred to in the agreement
as the “Original Easement”), but created a new, relocated
easement across the servient property to Virginia Secondary
Route 635. The servient property identified in this
agreement included not only the 12-acre parcel that was
originally the servient property with regard to the Kohen
easement, but also two additional parcels that are adjacent
to the 12-acre parcel. The terms of the agreement granted
the McClaves “a nonexclusive Right-of-Way Easement for
vehicular and pedestrian access from the southern boundary
of the [McClave property] across the [Sink property] to
Virginia Secondary Route 635” (the McClave/Sink easement).
The McClave/Sink easement was expressly “delimited by the
existing ‘New Shale Surface Road’, as the same is now
located, constructed, graded, and drained, as shown to
scale on a Plat of Survey” recorded with the deed and
agreement. It was situated slightly to the east of the
Kohen easement, except at the southern terminus near the
state route, where the two easements generally coincided.
In December 1998, the Taylors and the McClaves closed
on the real estate contract between them. The deed from
1
The agreement appears to have been in settlement of a
suit instituted by Sink against the McClaves. Sink had
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the McClaves conveyed, along with the property, the right-
of-way described in the “DEED OF EASEMENT AND AGREEMENT”
between the McClaves and Sink, i.e., the McClave/Sink
easement, and specified that the conveyance was subject to
the McClave/Sink easement agreement. However, the deed
from the McClaves to the Taylors did not refer to the Kohen
easement.
In the spring of 1999, Richard R. and Christina G.
McConchie (the McConchies), who owned property adjacent to
the “New Shale Surface Road” (the shale road), challenged
the Taylors’ route of access, claiming that the roadway the
Taylors were using crossed over the McConchies’ property.
In July, the Taylors received a “bar notice” from Sink,
advising that their right of access was limited to the
shale road as shown on the plat recorded with the
McClave/Sink easement agreement. Later, both the
McConchies and Sink erected fences that, according to the
Taylors, restricted their access and made it impossible for
a cattle truck to travel along the road without the prior
removal of some of the fence posts. The Taylors then filed
the present suit, naming as defendants Sink and the
McConchies.
also named the Taylors as defendants in that suit.
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At trial, the evidence showed that the McClave/Sink
easement encroached on the McConchies’ property by about
four feet near the southern end of the shale road. It was
also established that, while the stated purpose of the
McClave/Sink easement was to provide vehicular access “from
the southern boundary of the [Taylor property] to Virginia
Secondary Route 635,” the language of the agreement limited
the location of the easement to the shale road, but that
road did not extend to the state route. The evidence
showed that the Kohen easement also fell short of reaching
the present location of the state road by approximately 20
feet.
The circuit court held that the Kohen easement had
been “supplanted” by the McClave/Sink easement. The court
then found that Sink had breached the special warranty of
title given in the deed of easement to the McClaves, the
Taylors’ predecessor in interest, and that the Taylors
were, therefore, entitled not only to access their property
via the shale road as specified in the McClave/Sink
easement, but also to have access across Sink’s property
from the ending point of the shale road to the state route,
thereby fulfilling the easement’s intended purpose. After
announcing its decision from the bench, the court
instructed a surveyor on the particulars of that decision
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and directed the surveyor to prepare a plat reflecting the
court’s ruling.
After receiving the new survey, the Taylors moved the
court to reconsider its decision, contending that the
easement awarded by the court was only 7.05 feet wide at a
point near the state route and thus too narrow to provide
vehicular access to their property. Treating the motion as
one to introduce newly-discovered evidence, the court
denied the motion and entered its final decree, attaching a
copy of the new plat. The Taylors appeal from that decree.
II. ANALYSIS
On appeal, the Taylors raise three assignments of
error. First, they assert that the circuit court erred in
finding that the Kohen easement had been extinguished and
argue that it was conveyed to them in addition to the
McClave/Sink easement. Next, they contend that the
easement awarded by the circuit court is insufficient to
provide vehicular access to their property, as assured by
both easements. Finally, the Taylors contend that they
should have been permitted to present evidence concerning
the impact of the post-trial survey that was attached by
the circuit court to its final decree.
As to their first assignment of error, the Taylors
contend that, by virtue of their contract to purchase the
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McClaves’ property, they acquired an equitable interest in
the Kohen easement and that, since they were not parties to
the agreement establishing the McClave/Sink easement, their
interest in the Kohen easement was not extinguished by that
agreement. The Taylors also point out that, although their
deed from the McClaves did not mention the Kohen easement,
it nevertheless included the provision that “[t]his Deed is
made subject to all easements, restrictions, and conditions
of record affecting the hereinabove-described property.”
We agree with the Taylors’ position that an easement
remains with the dominant estate to which it is appurtenant
and passes to a subsequent grantee even though not
specifically mentioned in the deed to that grantee. See
Code § 55-50; Corbett v. Ruben, 223 Va. 468, 473-74, 290
S.E.2d 847, 850 (1982). Likewise, upon execution of the
real estate contract with the McClaves, the Taylors became
vested of an interest in the McClaves’ property, including
the appurtenant Kohen easement. See Carmichael v. Snyder,
209 Va. 451, 454-55, 164 S.E.2d 703, 706 (1968).
Nevertheless, these principles do not resolve the issue
raised here.
The agreement creating the McClave/Sink easement
specifically stated that the parties were abandoning the
“Original Easement” (the Kohen easement) and creating a
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new, relocated easement across the servient property. 2 That
new easement was confined to the area where the shale road
had been constructed. The McClave/Sink agreement was in
accord with the McClaves’ covenant, included in their real
estate contract with the Taylors, that they had a right-of-
way through the lands of the adjoining property owners to
the state route along the new road that they had
constructed (the shale road). Similarly, the deed from the
McClaves to the Taylors included the right-of-way described
in the McClave/Sink easement agreement and made the
conveyance to the Taylors subject to that agreement which,
as already stated, abandoned the Kohen easement. Thus,
when the deed from the McClaves was delivered and accepted
by the Taylors, any rights to the Kohen easement that the
Taylors may have acquired by virtue of the real estate
contract, despite its specific reference to the new road
constructed by the McClaves, were extinguished under the
doctrine of merger. 3 “The rule is that when a deed is
2
The term “abandonment” means “[t]he relinquishing of
a right or interest with the intention of never again
claiming it.” Black’s Law Dictionary 1 (7th ed. 1999).
3
Notably, in a letter introduced into evidence, the
Taylors’ attorney advised them that if they closed on the
contract with the McClaves, they would be waiving the right
to pursue any cause of action that they might have against
the McClaves concerning the right-of-way.
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executed and accepted in performance of a prior preliminary
contract, the deed, if unambiguous in its terms, and
unaffected by fraud or mistake, must be looked to alone as
the final agreement of the parties.” Woodson v. Smith, 128
Va. 652, 656, 104 S.E. 794, 795 (1920); accord Davis v.
Tazewell Place Assocs., 254 Va. 257, 262, 492 S.E.2d 162,
165 (1997); Miller v. Reynolds, 216 Va. 852, 854-55, 223
S.E.2d 883, 885 (1976).
Nor does the language in the Taylors’ deed stating
that the conveyance was “subject to all easements,
restrictions, and conditions of record” affecting the
property change our conclusion. That provision serves
merely to acknowledge that any existing rights are excepted
from the conveyance and continue to limit the Taylors’ fee
simple interest. See Davis v. Henning, 250 Va. 271, 275,
462 S.E.2d 106, 108 (1995). Thus, we conclude that the
circuit court did not err in finding that the Taylors no
longer have any rights under the Kohen easement.
Consequently, we also conclude that the circuit court
did not err in construing the Taylors’ easement as one for
solely vehicular and pedestrian access to their property.
The Taylors assert that the court erred in limiting the
width of the easement to 7.05 feet at a point near the
state route. According to the Taylors, that limitation in
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the width made the easement too narrow for “vehicular
access” as assured by the easement conveyed to the Taylors
in their deed. Relying on the language in both the
McClave/Sink easement and the Kohen easement, the Taylors
argue that, while a passenger automobile may be able to
“squeeze through” this 7.05-foot “gateway”, a larger
vehicle or farm equipment cannot do so, especially in light
of the sharp left turn that must be negotiated after
passing through the 7.05-foot opening.
To the extent that the Taylors claim that the
character of their easement remains as it was under the
Kohen easement, they are mistaken. The deed creating the
Kohen easement specifically stated that the easement was to
be of sufficient width to allow for the free passage of
motor vehicles and farm vehicles. However, when the Kohen
easement was abandoned in the agreement between the
McClaves and Sink, not only was the easement relocated, its
purpose was also changed. That change is evidenced by the
language in the “DEED OF EASEMENT AND AGREEMENT” specifying
“a nonexclusive Right-of-Way Easement for vehicular and
pedestrian access from the southern boundary of the
Dominant Property across the Servient Property to Virginia
Secondary Route 635.” In other words, the easement no
longer provided access for farm equipment.
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However, we do agree with the Taylors that the circuit
court abused its discretion by refusing to reopen the
evidence after the post-trial plat was prepared. Relying
on our decisions in Odum v. Commonwealth, 225 Va. 123, 301
S.E.2d 145 (1983) and Fulcher v. Whitlow, 208 Va. 34, 155
S.E.2d 362 (1967), the court held that the Taylors had not
satisfied the criteria for granting a new trial on the
basis of newly-discovered evidence. While not necessarily
dispositive of the issue, we note that those cases dealt
with motions for a new trial, whereas the Taylors merely
sought to reopen the evidence and did not ask for a new
trial.
It is apparent from the plat depicting the
McClave/Sink easement and from testimony that the easement
narrows to a width of 7.05 feet at a point where there is a
sharp left turn in the roadway as one travels along the
easement from the state route. That is the same narrow
“gateway” about which the Taylors complain, but it did not
come about as a result of the circuit court’s finding that
a small part of the shale road encroached upon the
McConchies’ property. That narrow portion in the easement
existed when the McClave/Sink easement was created and is
shown on the plat recorded with that deed of easement.
However, when the plat was prepared post-trial to reflect
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the circuit court’s ruling, the area in which to negotiate
the sharp left turn in the easement, and thus the angle of
that turn, changed because the court shifted a small
section of the easement eastward in order to correct the
encroachment upon the McConchies’ property. Consequently,
the Taylors asserted in their motion to reopen the evidence
that their ability to use the easement for vehicular and
pedestrian access to their property had been adversely
affected. Two photographs introduced into evidence depict
an automobile passing through this 7.05-foot-wide area, but
those pictures do not demonstrate the extent to which the
angle of the turn has been affected.
The plat establishing the location of the Taylors’
easement and changing the angle of that turn was not
available to the parties until after the trial. While the
court and the surveyor discussed the court’s decision with
the parties by making some pencil marks on the plat of the
McClave/Sink easement, the parties did not know the exact
change in the location of the easement until the post-trial
plat was prepared. More importantly, the Taylors could not
have understood what impact, if any, the court’s proposed
ruling would have on the use of their easement for
vehicular access to their property until they had the plat
in hand and could actually use the easement with the
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changes effected by the court. On this basis, we conclude
that the court abused its discretion in refusing to permit
the Taylors to introduce additional evidence on that point.
For these reasons, we will affirm in part and reverse
in part the judgment of the circuit court and remand for
further proceedings in accordance with this opinion.
Affirmed in part,
reversed in part,
and remanded.
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