Taylor v. McConchie

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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