Pizzarelle v. Dempsey

Present: Carrico, C.J., Compton, 1 Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ.

JAMES W. PIZZARELLE, ET AL.

v. Record No. 990787 OPINION BY JUSTICE CYNTHIA D. KINSER
March 3, 2000
WILLIAM H. DEMPSEY, III, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge

In this appeal, we address two questions: (1) whether

an easement has been partially abandoned, and (2) if not,

whether an encroachment on the easement is too

insubstantial to warrant injunctive relief. Because we

answer both of these questions in the negative, we will

reverse the judgment of the circuit court denying

injunctive relief to the dominant owners of the easement.

FACTS AND PROCEEDINGS

The easement at issue in this appeal was established

in a written “Deed of Easement” recorded in the Circuit

Court of Fairfax County Clerk’s Office in December 1987.

At that time, Merryhill Joint Venture (Merryhill) owned

lots in a subdivision known as Walter Heights, designated

as Lots 1, 2, and 3 in Section B; and Lot 7-B in Section A.

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1
Justice Compton participated in the hearing and
decision of this case prior to the effective date of his
retirement on February 2, 2000.
Merryhill created the easement for the purpose of ingress

and egress over and across those lots for the benefit of

the owners of the lots. 2 The instrument establishing the

easement contained the following provisions that are

pertinent to the present dispute:

1. The easement shall be used exclusively for the
purpose of ingress and egress to the Lots.

2. No act shall be performed by any owner of a Lot,
their tenants, guests, or agents which would in
any manner affect or jeopardize the free and
continuous enjoyment of any other owner of a Lot
in and to the easement.

Merryhill also recorded a plat that depicted the

location and dimensions of the easement. The easement runs

200 feet in length along the northern boundary line of the

subject lots. It is 24 feet wide.

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2
In the same instrument, Merryhill also granted
certain easements to Fairfax County for the purpose of
constructing and maintaining utilities, and operating
emergency vehicles. Merryhill reserved the right to
construct and maintain roadways over the easements, and to
make any other use of the easements not inconsistent with
the rights conveyed to Fairfax County. However, Merryhill
agreed “not [to] erect any building or other structure,
excepting a fence, on the easements without obtaining the
prior written approval of [Fairfax] County.” The fact that
Merryhill retained the right to construct a fence on the
easements granted to Fairfax County does not affect the
issues in this appeal because those easements are, in some
respects, different than the easement granted to the owners
of the lots.

2
 The parties to this litigation now own the lots

previously owned by Merryhill. William H. Dempsey, III,

and his wife Karen L. Holzberg (the Dempseys), were the

first purchasers. They acquired Lots 2 and 3, Section B,

in March 1992. These two lots were the only ones upon

which a house was already situated. The other lots were

unimproved at that time. During their negotiations with

Merryhill, the Dempseys requested a restriction limiting

the paved portion of the easement to a 15-foot strip along

the northern edge of the easement. Merryhill agreed to the

Dempseys’ request, and in 1993, almost one year after the

Dempseys purchased their lots, Merryhill recorded an

instrument effecting the restriction. However, according

to the terms of that 1993 document, the easement “remain[s]

in full force and effect.”

Next, Jeffrey D. Kolker and Pamela M. Kolker (the

Kolkers), purchased Lot 1, Section B, in October 1994 from

William R. Goetzen, 3 a developer who was a successor in

interest to Merryhill. Finally, in July 1995, James W.

Pizzarelle and his wife Georgie C. Nance (the Pizzarelles),

acquired Lot 7-B, Section A, from Fairlane Development,

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3
The record contains two different names for this
individual. We will use the one found in a joint
stipulation of facts.

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Inc., also a successor in interest to Merryhill. John

Jordan represented Fairlane in that transaction with the

Pizzarelles.

The four lots are contiguous and are bounded on the

south by Dolley Madison Boulevard. The Dempseys’ property

is the westernmost parcel and lies at the corner of Dolley

Madison Boulevard and Buchanan Street. The Kolkers own the

next parcel, and the Pizzarelles own the easternmost

parcel. So, traveling eastward along the easement from

Buchanan Street, one would first pass through the Dempseys’

property, then the Kolkers’, and finally the Pizzarelles’.

In an amended bill of complaint filed in February

1998, the Pizzarelles and the Kolkers alleged that the

Dempseys are obstructing and interfering with the full use

of the easement by virtue of certain fences, a rock wall,

and bushes and trees that the Dempseys placed in the

easement. 4 The Pizzarelles and the Kolkers requested a

declaration of their rights with regard to use of the

easement for ingress and egress, as well as an injunction

directing the Dempseys to remove all obstructions placed in

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4
Originally, only the Pizzarelles instituted this
action. On motion of the Dempseys, the court ordered the
Pizzarelles to add the Kolkers as necessary parties. The
Pizzarelles and the Kolkers then filed the amended bill of
complaint.

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or along the easement, and restraining the Dempseys from

any further obstruction of the easement. The Dempseys

answered the bill of complaint and also filed two cross-

bills, alleging certain violations of the provisions of the

easement by the Kolkers and the Pizzarelles. 5

At trial, the parties presented evidence through

testimony, exhibits, and a joint stipulation of facts. We

summarize and review that evidence in the light most

favorable to the Dempseys, the prevailing parties below.

Prospect Dev. Co., Inc. v. Bershader, 258 Va. 75, 80, 515

S.E.2d 291, 294 (1999).

Some of the trees and shrubs that constitute part of

the obstructions in the 24-foot easement were first planted

by the Dempseys after they purchased their lots. Mr.

Dempsey acknowledged that he planted several “seeders”

approximately two to three feet within the easement along

its southern border, but he testified that he did so with

the permission of someone at Merryhill.

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5
The circuit court denied the relief requested in the
cross-bills. The Dempseys did not assign cross-error to
that judgment, nor did they file a cross-appeal.
Accordingly, we will not address the evidence presented in
support of those cross-bills. See Rules 5:17(c) and 5:18.

5
 A fence known as the south fence originated with a

request from the Kolkers when they were negotiating the

purchase of Lot 1. They asked “the people who sold [them]

the house” to erect a fence along the southern boundary of

the easement. Mr. Kolker testified that they “asked for

the fence to delineate the driveway so it would look . . .

nice as [they] drove in.” Accordingly, Jordan and Goetzen

advised the Dempseys about the Kolkers’ request. The

Dempseys agreed to the erection of the fence on the

condition that it be placed no further than 20 feet from

the back (the northern boundary) of their property, i.e.

four feet inside the easement on its southern side,

adjacent to the area where the Dempseys had planted the

“seeders.”

However, the fence was not built at the location

specified by the Dempseys. Instead, it was erected along

the southern boundary of the easement, approximately six

inches inside the 24-foot area encompassed by the easement.

Consequently, the Dempseys contacted Jordan and advised him

that the fence was not situated at the location where they

had agreed. The next day the fence was moved to the

location where it now stands, approximately four to five

feet inside the southern border of the easement.

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 Mr. Kolker testified that he did not give permission

for the south fence to be moved to its present location,

but he acknowledged that he saw the Dempseys measuring the

area and knew that they had the fence relocated from its

initial position. However, Mr. Kolker stated that he

trusted the builder to place the fence in the correct spot

and did not protest because he wanted to be a good

neighbor. In fact, the Kolkers did not protest to anyone

about the present location of the fence until after they

were brought into this litigation as necessary parties.

The south fence is a wooden, picket-style fence. The

Dempseys have also erected a chain-link fence at the

eastern end of the south fence, perpendicular to it, and on

the boundary line between their property and the Kolkers’

lot. 6

When the Pizzarelles purchased Lot 7-B, they observed

the south fence in its present location, and some trees and

shrubs behind the fence. Mr. Pizzarelle acknowledged at

trial that he knew that Jordan, the person from whom he had

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6
There is also another fence, called the north fence,
that is situated approximately one foot inside the northern
border of the easement. That fence runs along the northern
boundary of all the parties’ lots. The Kolkers and the
Pizzarelles are not asking that the north fence be removed.

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purchased the property, had built the fence. He also

remembered “Mr. Dempsey showing [him] the exact markings

out there one day with Mr. Jordan [,] the builder.”

Both Mr. Pizzarelle and Mr. Kolker testified with

regard to the effect of the obstructions upon their use of

the easement. They expressed concern about whether they

could convey good title to a 24-foot easement if they sold

their respective lots. Mr. Pizzarelle and Mr. Kolker also

questioned whether emergency vehicles could gain access to

their respective homes because the full 24 feet of the

easement is not open for the purpose of ingress and egress.

Finally, Mr. Pizzarelle stated that he had experienced

difficulty in removing deep snow from the easement because

of the limited amount of space on each side of the paved

portion upon which to shovel the snow. Mr. Pizzarelle

described the south fence, the chain-link fence

perpendicular to it, and the trees as a “permanent block to

anyone getting through that portion of the easement.”

Based on this evidence, the circuit court found that

the Kolkers had requested that the south fence be erected,

and then acquiesced when the builder moved the fence to a

location deeper within the easement. Those acts, according

to the circuit court, established the Kolkers’ intent to

abandon a portion of the easement. The court further found

8
that the Pizzarelles’ predecessor in interest, upon

erecting the south fence, also abandoned the portion of the

easement south of that fence, thus barring the Pizzarelles

from acquiring rights to that part of the easement.

Alternatively, the circuit court found that, if there was

neither acquiescence nor abandonment, the encroachment was

insubstantial. Thus, the court denied injunctive relief to

the Pizzarelles and the Kolkers. This appeal followed.

ANALYSIS

Our review of this case is guided by well-settled

principles. “[W]hen a case is decided by a court without

the intervention of a jury and a party objects to the

decision on the ground that it is contrary to the evidence,

the judgment of the trial court shall not be set aside

unless it appears from the evidence that such judgment is

plainly wrong or without evidence to support it.” Code

§ 8.01-680. “It is axiomatic that a chancellor’s finding

on conflicting evidence, heard ore tenus, will not be

disturbed on appeal unless it is plainly wrong or without

evidence to support it.” Ivy Constr. Co. v. Booth, 226 Va.

299, 301, 309 S.E.2d 300, 301 (1983) (per curiam) (citing

Rochelle v. Rochelle, 225 Va. 387, 393, 302 S.E.2d 59, 63

(1983)). Conversely, “[a] judgment or decree that is

plainly wrong, or without evidence to support it, cannot be

9
allowed to stand.” Malbon v. Davis, 185 Va. 748, 757, 40

S.E.2d 183, 187 (1946).

On appeal, the Pizzarelles and Kolkers contend that

the trial court’s finding of abandonment is contrary to the

evidence because the Pizzarelles’ predecessor in interest,

as well as the Kolkers, lacked the requisite intent to

abandon the easement and because there had not been a

sufficient lapse of time for an abandonment to occur. They

also argue that the circuit court erred by concluding that

the encroachment was insubstantial and thus did not justify

an award of injunctive relief. Finally, they assert that

the circuit court abused its discretion by re-writing the

terms of the easement and forcing a de facto modification

of the easement upon the Pizzarelles and the Kolkers.

We will first address the issue of abandonment and the

principles of law applicable to it.

[M]ere non-use[] of an easement created by deed, for a
period however long, will not amount to abandonment.
In addition to the non-use[,] there must be acts or
circumstances clearly manifesting an intention to
abandon; or an adverse use[] by the owner of the
servient estate, acquiesced in by the owner of the
dominant estate, for a period sufficient to create a
prescriptive right.

Lindsey v. Clark, 193 Va. 522, 525, 69 S.E.2d 342, 344

(1952) (citing Watts v. C.I. Johnson & Bowman Real Estate

Corp., 105 Va. 519, 525, 54 S.E. 317, 319 (1906)). The

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party claiming abandonment of an easement, in this case the

Dempseys, has the burden “to prove [such abandonment] by

clear and unequivocal evidence.” Robertson v. Robertson,

214 Va. 76, 82, 197 S.E.2d 183, 188 (1973) (citing Lindsey,

193 Va. at 525, 69 S.E.2d at 344).

With regard to the Kolkers, there is evidence to

support the court’s factual findings that the Kolkers asked

that the south fence be erected and did not initially

object to its relocation four to five feet deeper into the

easement. However, when the Kolkers asked for a screening

fence to be built, they believed that it would be erected

along, or within six inches of, the southern boundary of

the easement, not four to five feet inside the easement.

Thus, the mere fact that they requested the fence is not

“clear and unequivocal evidence” of an intent to abandon

part of the easement for the purpose of ingress and egress.

Robertson, 214 Va. at 82, 197 S.E.2d at 188. The Kolkers’

subsequent failure to object when they saw the fence being

relocated is likewise not “unequivocal” evidence of an

intent to abandon, as it is not “free from uncertainty.”

Blacks Law Dictionary 1529 (7th ed. 1999). Rather, it is

“equivocal,” since other evidence indicates a contrary

intent. For example, Mr. Kolker testified that they

trusted the builder to locate the south fence at the

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correct spot, and Jordan relocated the fence deeper into

the easement at the sole direction of the Dempseys.

Additionally, the circuit court found that Jordan was not

acting as the Kolkers’ agent at that point, and that

finding is not the subject of any assignment of cross-

error.

As to the Pizzarelles, the circuit court concluded

that their predecessor in interest, Jordan, had abandoned

part of the easement by erecting the south fence at the

spot specified by the Dempseys. However, we do not agree.

Even though Jordan (and Goetzen since he also

intitially approached the Dempseys about the fence and sold

Lot 1 to the Kolkers), moved the south fence to a location

deeper into the easement, the area on the south side of

that fence was still open and useable for some forms of

ingress and egress. That situation changed when the

Dempseys connected their chain-link fence to the eastern

end of the south fence. At that time, the Dempseys

completely blocked the free and continuous enjoyment of the

easement by the Kolkers and the Pizzarelles. Yet, there is

no evidence in the record that anyone agreed to the

erection of the chain-link fence. Thus, we conclude that

the evidence regarding the intent of the Pizzarelles’

predecessor in interest is also “equivocal” and therefore

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insufficient to establish an intent to abandon. Robertson,

214 Va. at 82, 197 S.E.2d at 188.

However, the Dempseys contend that it is inconceivable

that Jordan would have erected the south fence, then

relocated it at the Dempseys’ insistence, and still

intended all the while to retain, and subsequently convey

to the Pizzarelles, the right to demand that the fence be

removed. In making this argument, the Dempseys point to

the absence of any testimony from Jordan and Goetzen with

regard to their intent in erecting the south fence. We are

not persuaded by this argument because it overlooks the

fact that the Dempseys had the burden of proving

abandonment, id., and they were the owners who completely

blocked the easement from all forms of ingress and egress

by erecting the chain-link fence.

The Dempseys also assert that the facts in the present

case are remarkably similar to those in Magee v. Omansky,

187 Va. 422, 46 S.E.2d 443 (1948), where this Court found

an abandonment. However, we find that case distinguishable

from the present one. In Magee, the primary questions

presented were first, what easement, if any, did the

plaintiffs acquire; and second, if the plaintiffs had an

easement, had it been abandoned. In answering the first

question, this Court found that the plaintiffs had not

13
acquired any easement because they failed to show that the

street in question was servient to their lots in a

subdivision. Id. at 429, 46 S.E.2d at 447. Nevertheless,

the Court, in dicta, considered the question of

abandonment. The facts in Magee with regard to the

abandonment issue established a long period of non-use of

the street; the placement of iron stakes in the street; the

acts of the parties and their predecessors in interest in

allowing the street to grow up in large trees, dense

honeysuckle, and bushes; appropriation of the western ten

feet of the street into the lots bordering the street; and

erection of a woodshed on the eastern part of the street.

Id. at 429-430, 46 S.E.2d at 447-48. We concluded that,

even if easement rights had been acquired, those facts

supported the trial court’s finding of abandonment. Id. at

430, 46 S.E.2d at 448. We do not believe that the facts in

the present case are comparable to those in Magee.

“Abandonment is a question of intention[,]” and it

must be established by “clear and unequivocal evidence.”

Lindsey, 193 Va. at 525, 69 S.E.2d at 344. We do not find

such evidence in the record that either the Kolkers, or

Jordan and Goetzen, intended to abandon approximately four

to five feet of the easement from all ingress and egress.

Instead, we believe that the evidence with regard to the

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present location of not only the south fence, but also the

Dempseys’ chain-link fence, and the trees and shrubs,

reflect the Dempseys’ intent to adversely use part of the

easement for a purpose other than ingress and egress.

This conclusion does not end our discussion. As

previously noted, the circuit court made an alternative

finding that, in the absence of abandonment, the

encroachment was insubstantial and did not warrant

injunctive relief. We do not agree with the circuit court

because the obstructions in the easement are a material

encroachment on the dominant owners’ rights.

“The use of an easement must be restricted to the

terms and purposes on which the grant was based.”

Nishanian v. Sirohi, 243 Va. 337, 339, 414 S.E.2d 604, 606

(1992) (citing Robertson v. Bertha Min. Co., 128 Va. 93,

104, 104 S.E. 832, 835 (1920)). Thus, injunctive relief is

available when an easement is being used for a purpose

other than that originally granted. Nishanian, 243 Va. at

339, 414 S.E.2d at 606. Otherwise, a new and different use

of an express easement could be established by

prescription, i.e., “a showing of adverse use under a claim

of right, a use which is exclusive, continuous and

uninterrupted and occurs with the knowledge of the land

owner for at least twenty years.” Id. (citing Martin v.

15
Proctor, 227 Va. 61, 64-65, 313 S.E.2d 659, 661 (1984);

Robertson, 214 Va. at 81, 197 S.E.2d at 188).

To affirm the circuit court’s denial of injunctive

relief in this case would in effect allow the Dempseys to

appropriate a portion of the easement and reduce a 24-foot

easement to one of 19 to 20 feet in width. The Kolkers and

the Pizzarelles acquired a 24-foot easement, and they are

entitled to the free and continuous use and enjoyment of

that 24 feet for the purpose of ingress and egress. The

terms of the easement specifically guaranteed that right to

them and further stated that no owner of a lot shall

perform any act that interferes with that right.

Unlike some cases, the question here is not one of

“reasonableness” or whether the easement is now “less

useful or less convenient.” Willing v. Booker, 160 Va.

461, 466, 168 S.E. 417, 418 (1933). The Dempseys portray

the easement as not being “less useful” because vehicular

traffic on the paved portion is not affected by the

obstructions. However, the obstructions in the easement

completely block all ingress and egress on the south side

of the wooden fence.

Nor is this a case in which the equities should be

balanced. For example, in Mobley v. Saponi Corp., 215 Va.

643, 212 S.E.2d 287 (1975), a case upon which the Dempseys

16
rely, this Court affirmed the chancellor’s denial of

injunctive relief after balancing the equities. There, the

evidence showed that no significant amount of the Mobley’s

lakefront, useable property was flooded when the level of

the lake was raised. Also, their dock was no less usable,

and the corporation had reserved a permanent easement

within ten feet of the shoreline for the benefit of the

lake. Id. at 646, 212 S.E.2d at 289-90. In the present

case, a significant portion of the easement would be

rendered unusable for ingress and egress if injunctive

relief were denied.

Thus, we conclude that the circuit court’s denial of

injunctive relief, while a matter of discretion, was

nevertheless plainly wrong in this case. See Blue Ridge

Poultry and Egg Co., Inc. v. Clark, 211 Va. 139, 144, 176

S.E.2d 323, 327 (1970) (decision whether to grant or refuse

injunction lies within sound discretion of chancellor and

will not be disturbed on appeal unless decision is plainly

wrong). For these reasons, we will reverse the judgment of

the circuit court and remand this cause for entry of an

injunction directing the Dempseys to remove the south fence

and other obstructions that are within the 24-foot

17
easement. 7 On remand, the circuit court shall also address

the question whether the Dempseys should bear all the costs

of removing the obstructions.

Reversed and remanded.

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7
In light of our decision, we do not need to address
the remaining assignment of error. We also will not
address the Dempseys’ argument with regard to estoppel
because they did not present that argument to the circuit
court. See Rule 5:25. Similarly, they claim that the
south fence and the trees adjacent to it are permissible,
i.e., not an encroachment, under the terms of the easement
when viewed in light of the 15-foot paving restriction.
Even though the circuit court concluded that the
encroachment was insubstantial, it nevertheless found an
encroachment. The Dempseys did not assign cross-error to
that finding. See Rule 5:18.

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