Martin v. Moore

PRESENT: Carrico, C.J., Lacy, Hassell, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.

MILTON R. MARTIN, ET AL.

v. Record No. 011980

MICHAEL TODD MOORE, ET AL.
OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
MICHAEL TODD MOORE, ET AL. April 19, 2002

v. Record No. 012016

MILTON R. MARTIN, ET AL.

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
Dennis J. Smith, Judge Designate

In these two appeals arising from a single chancery suit,

we consider issues relating to prescriptive easements,

nuisances, and damage to realty.

In May 1999, plaintiffs Michael Todd Moore, Jeffrey Lee

Moore, Joey Herbert Moore, and F. L. Moore & Sons, Inc. filed a

bill of complaint against defendants Milton R. Martin and

Shirley J. Martin. The plaintiffs sought to enjoin defendants

from interfering with plaintiffs' use of an entrance road or

driveway leading from U.S. Route 460 in Campbell County to

plaintiffs' property where they operate a trucking business.

The plaintiffs also sought a declaration that they had a right

to such use by virtue of an easement.
 In an answer, defendants denied plaintiffs were entitled to

the relief sought. Defendants "affirmatively alleged that the

Entrance Road is virtually completely on the property of the

Defendants," and that the plaintiffs had been granted "a

permissive license to use the Entrance Road."

In a cross-bill, defendants claimed plaintiffs were guilty

of trespass, both as the result of use of the driveway and as

the result of contamination of a lake situated on property owned

by defendants adjacent to plaintiffs' property. Also,

defendants alleged plaintiffs' activities constituted a private

nuisance.

The defendants sought to enjoin plaintiffs from use of the

entrance road "for any purpose whatsoever" and "from operating a

trucking business on the Property." Additionally, defendants

asked that plaintiffs "be assessed with monetary damages to

defer the costs of removing silt" from their lake.

Following a March 2000 ore tenus hearing, during which the

chancellor inspected the property in question, the court

determined that the plaintiffs had established a right to use a

portion of the driveway by virtue of a prescriptive easement.

Ruling on the cross-bill, the court decided defendants had not

proved that the trucking operation constituted a private

nuisance. However, the court determined defendants' evidence

established that their property rights in the lake had been

2
"substantially impaired" by siltation, and "that a repair to the

siltation could be done for approximately" $26,000.

In a June 2001 final decree, the trial court memorialized

the foregoing rulings, which included entry of judgment in favor

of the defendants for $26,000. We awarded separate appeals to

the plaintiffs and the defendants.

On appeal, addressing the issue raised by the bill of

complaint, the defendants contend the trial court erred in

ruling that the plaintiffs established an easement by

prescription giving them a right to use a portion of the

entrance road owned by defendants.

Employing settled principles of appellate review, we shall

recite the facts pertinent to this issue, including the

legitimate inferences flowing from those facts, in the light

most favorable to the plaintiffs, who prevailed below.

Route 460 at the location in question extends in a

generally east-west direction. Formerly, the defendants owned a

50.15-acre tract of land lying adjacent to and south of the

highway. From this tract, the defendants conveyed three

separate parcels to the Bryants, the plaintiffs' immediate

predecessors in interest.

First, in 1969 the defendants conveyed a one-acre parcel

abutting the highway right-of-way. Bryant built a home upon

this parcel and began operating a trucking business there.

3
Second, in 1973 defendants conveyed a one-half acre parcel lying

immediately to the south of the one-acre parcel to enable Bryant

to expand his trucking business. Finally, in 1976 they conveyed

a 5.75-acre parcel adjoining the one-half acre parcel to the

south because Bryant "needed it" for his trucking operations.

When the one-acre parcel was conveyed, an entrance and an

"old road," extending south down a hill and west into the

defendants' property, were the sole means of access from Route

460 to the 50.15-acre tract. The Bryant deed to the one-acre

parcel included a portion of the entrance. A pin located in the

middle of the joint entrance marked the boundary line between

the defendant Martins' land and the Bryants' one-acre parcel.

According to Mr. Martin, "I sold him half the driveway at the

top of the hill so he would have entrance to his house."

The plaintiffs purchased the three Bryant parcels in 1997,

and have been operating a trucking business on the premises

since that time.

The entrance and the "old road" were located in the same

place as the present entrance and roadway now being used by the

plaintiffs and the defendants for access to and from Route 460

for their respective properties. The plaintiffs claimed they

were entitled to a right of way over only a small portion of the

roadway. The portion partially crosses over the boundary line

between the plaintiffs' and defendants' land, and extends from

4
the Route 460 entrance south down the existing road to the area

in front of an "old shop" located on the one-acre parcel. The

final decree granted the plaintiffs an easement to use this

portion of the road.

The law applicable to establishment of prescriptive

easements is settled. In order to establish a private right of

way by prescription over property of another, the claimant must

prove, by clear and convincing evidence, that the claimant's use

of the roadway in question was adverse, under a claim of right,

exclusive, continuous, uninterrupted, and with the knowledge and

acquiescence of the owner of the land over which it passes, and

that the use has continued for at least 20 years. Ward v.

Harper, 234 Va. 68, 70, 360 S.E.2d 179, 181 (1987); Pettus v.

Keeling, 232 Va. 483, 485, 486-87, 352 S.E.2d 321, 323-24

(1987). Accord Nelson v. Davis, 262 Va. 230, 235, 546 S.E.2d

712, 715 (2001).

When there has been open, visible, continuous, and

unmolested use of a road across the property of another for the

prescriptive period, the use will be presumed to be under a

claim of right, and places upon the owner of the servient estate

the burden to rebut this presumption by showing that the use was

permissive and not under a claim of right. Ward, 234 Va. at 70-

71, 360 S.E.2d at 181; Pettus, 232 Va. at 485, 352 S.E.2d at

323-24. Accord Nelson, 262 Va. at 235, 546 S.E.2d at 715. This

5
presumption of a grant or adverse right is prima facie only and

may be rebutted by evidence to the contrary. Chaney v. Haynes,

250 Va. 155, 159, 458 S.E.2d 451, 453 (1995).

The standard of appellate review applicable here is clear.

The findings of a chancellor, who heard the evidence ore tenus,

carry the weight of a jury verdict. Tauber v. Commonwealth, 255

Va. 445, 452, 499 S.E.2d 839, 843, cert. denied, 525 U.S. 965

(1998). A judgment based upon such findings will not be

reversed on appeal "unless it appears from the evidence that

such judgment is plainly wrong or without evidence to support

it." Code § 8.01-680.

We hold that the trial court correctly determined the

plaintiffs presented facts sufficient to establish by clear and

convincing evidence the basic elements of an easement by

prescription. The use of the joint entrance and the portion of

the joint driveway serving the one-acre parcel began by the

Bryants in 1969. The use of the portion of the driveway serving

the one-half acre parcel began by the Bryants in 1973. The use

of the entrance and length of the driveway for access to the

5.75-acre parcel began in 1976.

The foregoing use was continuous by the Bryants, and then

by the plaintiffs, as each conducted a trucking business on the

three parcels. The use was uninterrupted until May 3, 1999,

when defendants wrote plaintiffs contesting their use of the

6
driveway and entrance. Five days later, defendants blocked the

entrance road, which act precipitated this lawsuit. Therefore,

the use was in excess of 20 years.

Moreover, there is no dispute the parties knew that a

portion of the joint entrance and joint driveway was on the

defendants' side of the property line. Clearly, the use of the

entrance and the driveway by the Bryants, and then by the

plaintiffs, for their trucking operations was open and obvious,

and known to the defendants. Also, the evidence shows that the

defendants did nothing to stop or protest the Bryants', and then

the plaintiffs', use of the entrance and driveway until the May

1999 letter.

Accordingly, the plaintiffs were entitled to the rebuttable

presumption that their use, and that of their predecessors in

title, was adverse. The question then becomes whether the

defendants proved that the use by the Bryants and the plaintiffs

was permissive, and not adverse.

Circumstantial evidence may not be used to establish

permissive use in cases involving joint driveways. "There must

be a positive showing that an agreement existed." Causey v.

Lanigan, 208 Va. 587, 593, 159 S.E.2d 655, 660 (1968).

The evidence established that the defendants acquiesced in

the Bryants' and the plaintiffs' use of the joint entrance and

joint driveway. But the evidence failed to rebut the

7
presumption enjoyed by the plaintiffs that the prior use was

adverse.

The chancellor found: "While Martin and Bryant did discuss

maintenance of the roadway, and Bryant did get permission before

he paved the driveway, there was never any discussion between

Martin and Bryant regarding Bryant's use of the portion of the

road on Martin property, therefore there was no agreement which

would rebut the presumption that the use was adverse." These

factual findings of no oral or written permission clearly are

supported by the evidence.

It is true, as defendants point out, that Mr. Martin and

Mr. Bryant each testified that Martin gave Bryant "permission"

to use the entrance road. However, the chancellor, as trier of

fact, properly could conclude from all the evidence that what

the parties meant was that both knew that a portion of the

driveway and entrance was on the Martins' side of the property

line, and that the defendants never prevented the Bryants from

using the road. Bryant agreed that what he meant by "getting

permission" was that Martin "didn't object" to the use.

In sum, there was no "positive showing" sufficient to

establish permissive use, and the trial court correctly so held. ∗

∗
The trial court also ruled that plaintiffs had established
an easement by implication. Because we have determined the
court properly found that an easement by prescription had been

8
 Next, addressing issues raised by the cross-bill,

defendants contend that the trial court "erred in concluding

that the [plaintiffs'] operation of their trucking business did

not constitute an actionable nuisance." The defendants argue

that "the trial court, in concluding that no evidence supported

the [defendants'] nuisance claim, arbitrarily disregarded

uncontradicted testimony, of unimpeached witnesses, which was

neither inherently incredible nor without support in the

record."

We disagree with the defendants. In the first place, the

chancellor did not conclude there was "no evidence" supporting

the nuisance claim. Rather, the court determined the evidence

failed to show that operation of the plaintiffs' trucking

business caused "substantial harm" to the defendants' use and

enjoyment of their property. In the second place, the testimony

touching this issue was neither uncontradicted nor unimpeached.

When a business enterprise, even though lawful, becomes

obnoxious to occupants of neighboring dwellings and renders

enjoyment of the structures uncomfortable by virtue of, for

example, noise, dust, or offensive odors, the operation of such

business is a private nuisance. Nat'l Energy Corp. v. O'Quinn,

223 Va. 83, 85, 286 S.E.2d 181, 182 (1982). Even though the

proved, we do not reach the question whether there is an
easement by implication.

9
term "nuisance" includes everything that endangers life or

health, or obstructs the reasonable and comfortable use of

property, not every trifling or imaginary annoyance that may

offend the sensibilities of a fastidious person is actionable.

Id.

We broadly construe an occupant's right to the use and

enjoyment of land. In this context, the phrase "use and

enjoyment of land" contemplates the pleasure and comfort one

normally derives from the occupancy of land. Bowers v. Westvaco

Corp., 244 Va. 139, 145, 419 S.E.2d 661, 665 (1982). Freedom

from discomfort and annoyance while using land, which involves

an element of personal tastes and sensibilities, is often as

important to an individual as freedom from physical interruption

in the use of the land. Id. However, the discomfort and

annoyance must cause substantial harm to the individual, causing

a material disturbance or annoyance in use of the realty. Nat'l

Energy Corp., 223 Va. at 85, 286 S.E.2d at 182; Smith v. The

Pittston Co., 203 Va. 711, 717-18, 127 S.E.2d 79, 84 (1962).

In the present case, defendants claim the plaintiffs'

trucking operation is a private nuisance because the evidence

presented at trial established "that the total sum of the

[plaintiffs'] activities would affect the sensibilities of an

ordinary person." They say they proved that the trucking

operation was excessively noisy; created odor, dust, and

10
excessive traffic on the driveway; and caused dangerous and

unsafe blockages of the entrance road. The defendants also

claim that the use of the property by the plaintiffs overburdens

any easement that has been acquired.

The defendants occupy a dwelling they built in 1993 on the

remainder of the original 50.15-acre tract. The home, built

about four years before the plaintiffs acquired their land, is

approximately 1000 feet west of the plaintiffs' property.

Access to the home from Route 460 is over the full length of the

entrance road.

The evidence on the nuisance issue was in material

conflict. A brief summary of the evidence offered by the

opposing parties, rather than a detailed recitation, will be

sufficient here.

Defendants' witnesses testified that, after plaintiffs

purchased their property in 1997 and began their trucking

operation, noise and traffic problems on the driveway escalated.

Testimony offered by defendants showed that Bryant's trucking

business was on a smaller scale than the plaintiffs', with no

discernable noise associated with the Bryant operation but

constant noise generated by the plaintiffs' business.

Mr. Martin testified that the noise from plaintiffs'

property was "extremely loud all day, and it goes on into the

night, all night." He stated the noise prevented him from

11
sleeping and otherwise affected him "emotionally." One witness

for defendants described the noise: "It sounds like steel . . .

being moved and banging and screeching." Mrs. Martin testified

that the noise had been "very disturbing," and that there was

"constant coming and going" on the driveway from "tractor-

trailers, pickup trucks, cars" using plaintiffs' land.

The plaintiffs presented testimony directly contradicting

defendants' evidence about the alleged noise level. For

example, plaintiffs' witnesses stated that the trucking

operation was not unduly noisy and that traffic on Route 460 at

the location in question made more noise than did plaintiffs'

vehicles. According to one of the plaintiffs, their trucks

"meet every standard in the industry to eliminate noise."

Traffic congestion at the entrance to the driveway,

according to plaintiffs, was caused in part by the design of the

entrance. They supported Virginia Department of Transportation

plans for improvement but defendant Martin refused to agree to

the proposed modifications. According to the plaintiffs, Martin

was more interested in putting them out of business by denying

them access to their property than in improving the entrance.

Martin testified: "I would love to see them shut down, yes."

The plaintiffs' evidence, comparing the scope of the

Bryants' trucking operation (about which defendants did not

complain) with the scope of plaintiffs' business, conflicted

12
with evidence on that subject offered by defendants. The

plaintiffs' evidence showed the businesses were similar.

According to plaintiffs, Bryant initially was a "local short-

haul" business, with frequent traffic in and out of the

driveway; it then expanded to some interstate operations. The

plaintiffs' business primarily is "a road operation" as a "long-

distance carrier," with fewer trucks than Bryants' using the

driveway on a daily basis, according to plaintiffs.

Based upon the conflicting evidence, we cannot say that the

trial court erred in finding the defendants failed to prove the

plaintiffs' activities created a private nuisance. The

chancellor heard the evidence, viewed the premises, and was

entitled to assess the credibility, including the bias, of the

respective witnesses. Indeed, the chancellor stated on the

record he recognized that the Moores and the Martins were "angry

and dislike each other and each has motivation to be less than

totally honest and candid because each has an interest in the

suit." As the plaintiffs note, the defendants never complained

to the plaintiffs about noise until the cross-bill was filed, no

mention of the subject having been made in the threatening

letter of May 3, 1999. This and other factors obviously caused

the chancellor to give more weight to the plaintiffs' evidence

than to defendants'.

13
 The decision in Bowers, supra, heavily relied upon by the

defendants, is clearly distinguishable from this case. The

procedural posture of Bowers on appeal was different. There, we

affirmed the trial court's judgment finding that the acts of the

defendants constituted an actionable private nuisance. Here, we

are being asked to annul factual findings declaring that no

nuisance had been proved. Unlike the Bowers, the Martins are

not armed with the trial court's finding in their favor.

Furthermore, the acts complained of in Bowers were more

egregious and severe than was the alleged conduct of the

plaintiffs here, even if all the defendants' evidence is

accepted. For example, a truck staging operation was located

about 25 feet from the Bowers' living room window. Vibrations

created by moving trucks cracked the concrete pad on the rear

porch of the Bowers' home. Mrs. Bowers incurred medical

expenses because she became distraught, depressed, and very

nervous as the result of conditions caused by the truck staging

operation. The Bowers' children experienced adjustment

disorders associated with these conditions. 244 Va. at 142-44,

419 S.E.2d at 664-65.

In sum, the court's ruling on this issue is not plainly

wrong or without evidence to support it.

14
 And, contrary to defendants' contention, the trial court

correctly ruled that the plaintiffs have not overburdened the

easement.

"When, as here, an easement by prescription has been

established, the width of the way and the extent of the

servitude is limited to the character of the use during the

prescriptive period." Willis v. Magette, 254 Va. 198, 204, 491

S.E.2d 735, 738 (1997); Virginia Hot Springs Co. v. Lowman, 126

Va. 424, 430, 101 S.E. 326, 328 (1919). However, "a reasonable

increase in the degree of use may be permissible in such an

easement." Willis, 254 Va. at 204, 491 S.E.2d at 738.

The following determination by the chancellor is fully

supported by the evidence: "The Bryants used the Moores'

property in a similar fashion, and while the degree of use may

have increased somewhat, the court finds that it has not been

such a substantial increase that it places an additional burden

on the Martin property."

Finally, still addressing the cross-bill, we consider

whether the trial court erred in entry of a money judgment in

favor of the Martins for damage to realty.

The Martins alleged that the Moores have trespassed by

conducting "land disturbing activities" on the 5.75-acre parcel

near a stream which feeds the Martins' "large man-made lake on

their property" to the west of the parcel. These activities,

15
which included daily washing of trucks, caused soil to run off

into the stream resulting in deposit of silt in the lake.

Based upon the evidence, the chancellor found "that in

altering their property the Moores adversely impacted the stream

flows and therefore the property rights of the Martins as [to]

the lake [have] been substantially impaired for ordinary

recreational purposes." The court found "that a repair to the

situation could be done for approximately" $26,000, and entered

judgment in that sum.

On appeal, the Moores do not contest the chancellor's

findings of trespass. Instead, they attack the money judgment

on two grounds. First, they dispute the correctness of the

measure of damages applied by the court. They say the court

based its judgment upon the mere cost of repair to the lake

without any evidence of diminution in the market value of the

real estate. Second, the Moores contend "the evidence did not

establish with reasonable certainty the quantum of damages

actually suffered by the Martins."

We will assume, without deciding, that the cost of repair

was the proper measure of damages to be applied here. We hold,

however, that the Martins failed to establish the cost of repair

to the lake and therefore did not meet their burden to prove the

amount of damages with reasonable certainty.

16
 The burden to establish the amount of damages with

reasonable certainty does not require proof with mathematical

precision; at a minimum, however, the claimant must present

sufficient evidence to permit an intelligent and probable

estimate of the amount. Dillingham v. Hall, 235 Va. 1, 3-4, 365

S.E.2d 738, 739 (1988). This the Martins failed to do.

The Martins merely presented evidence that it would cost

$26,000 to remove 2,000 cubic yards of silt from the lake.

There was no evidence, such as data or test results, regarding

cubic yards of silt actually in the lake. There was no evidence

of any measurements or observations to determine the depth of

the silt, or whether the condition spread over the entire lake

bed or was limited to the area of the creek entrance. At most,

the Martins' evidence showed only that silt was present and that

the Moores had been washing trucks nearby.

Therefore, because the trial court erred in entering the

money judgment, that portion of the final decree awarding the

Martins $26,000 against the Moores will be reversed and final

judgment will be entered here in favor of the Moores on the

trespass claim. The remainder of the final decree will be

affirmed.

Affirmed in part,
reversed in part,
and final judgment.

17