Present: All the Justices
SHENANDOAH ACRES, INCORPORATED
v. Record No. 972263
D.M. CONNER, INCORPORATED
OPINION BY
JUSTICE LAWRENCE L. KOONTZ, JR.
September 18, 1998
ACRES SAND & STONE, L.L.C.
v. Record No. 972266
D.M. CONNER, INCORPORATED
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
In these appeals we consider whether the trial court properly
determined that the owner of a non-exclusive easement may limit
access to the easement by the servient landowner and its lessee.
Background
Since 1957, D.M. Conner, Incorporated (Conner) and its
predecessors have held a mineral interest in the northeastern corner
of property owned by Shenandoah Acres, Incorporated (Shenandoah) for
the purpose of mining sand and gravel. In June 1982, by deed of
exchange, Shenandoah granted to Conner’s principal shareholder and
his wife a 50-foot easement from State Route 660 running east along
the northern edge of Shenandoah’s property to an adjacent parcel
owned by the couple in exchange for the release of an existing
right-of-way over Shenandoah’s property. This easement was
subsequently transferred to Conner by deed dated March 25, 1987.
Conner constructed and maintains a 30-foot wide, surface-
treated road within the easement connecting Conner’s mining
operations on Shenandoah’s property with State Route 660. These
improvements include a locked gate at the point where the road meets
the state highway. Conner’s sole current use of its easement is for
access from the mining operation on Shenandoah’s property to the
highway over this road.
In November 1996, Shenandoah decided to terminate its mining
agreement with Conner and entered into a lease agreement with Acres
Sand & Stone, L.L.C. (Acres Sand), for use of a portion of
Shenandoah’s property. The purpose of this lease is to allow Acres
Sand to conduct mining operations within the leasehold. The
leasehold area covers approximately 144 acres of Shenandoah’s
property, including that portion currently being mined by Conner. *
The lease further provides that Acres Sand will have use of the same
*
At the time Shenandoah and Acres Sand entered into this lease,
the nature and extent of Conner’s interest in Shenandoah’s property
and its right to continue its mining operation there were in dispute
and were already the subject of other litigation. Pending the
resolution of that litigation, Acres Sand is limited by its special
use permit to conduct mining operations only on the undisputed
portion of its leasehold. Because Conner’s interest in Shenandoah’s
property and its right to continue mining operations there were not
issues in the suits from which these appeals arise, we express no
opinion on these issues or the effect of the resolution of that
litigation on the issues reviewed in this opinion.
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right-of-way between State Route 660 and the leased premises
previously granted to Conner. Although Acres Sand had not begun
mining operations at the time of trial, it was surveying a portion
of the leasehold and making initial preparations to open a mine in
an area nearer to Route 660 and west of Conner’s mining operations.
Acres Sand plans to build a spur road to connect its mine to the
road on the right-of-way.
In February 1997, Shenandoah requested that Conner either
relocate its gate to a point nearer Conner’s mining operations, or
permit Shenandoah to have joint control over the gate in its current
location. Conner refused these requests. On April 4, 1997,
Shenandoah constructed a “loop” from the highway to the road to
bypass Conner’s gate. Shenandoah secured the loop with a second
locked gate. That same day, Conner parked a road grader on the
easement road blocking the bypass.
On April 7, 1997, Conner filed a bill of complaint seeking a
temporary injunction against Shenandoah and Acres Sand to prohibit
their interfering with Conner’s use of the easement, tampering with
the existing form of the right-of-way, and disturbing the existing
security for Conner’s mining operations until Conner’s property
rights in the disputed portion of the leasehold could be determined.
On April 9, 1997, Shenandoah and Acres Sand jointly filed a separate
bill of complaint seeking an injunction prohibiting Conner from
interfering with their use of the easement area.
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Although not formally consolidated by the trial court, the two
suits were considered together in the course of two ore tenus
hearings. At those hearings, the parties offered evidence on the
current and proposed uses of the easement. Shenandoah indicated
that its current use of the easement was limited to checking the
property two or three times a week. Acres Sand offered evidence
that it planned to begin mining operations within three months, but
that its current use of the easement involved only survey and site
preparation work. Once mining operations begin, Acres Sand intends
to use the easement road to move equipment into its mining area and
remove gravel and sand in dump trucks.
Conner offered testimony that continued use of the easement
road was necessary for its mining operations on Shenandoah’s
property. Conner also presented evidence regarding the security
requirements of the mining operations imposed by state regulation,
and maintained that it was necessary to keep its gate locked during
non-business hours. In commenting on the evidence, the chancellor
expressed concern that permitting Shenandoah and Acres Sand
unlimited access to the easement might compromise the security of
Conner’s mining operations.
The trial court subsequently entered identical orders in each
case in which it found that Conner’s easement was not exclusive, and
that “[Shenandoah] retained the right to use the easement for any
purposes which are not inconsistent with the use of the easement by
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[Conner], and conversely, cannot make any use of the easement which
is inconsistent with the rights granted to [Conner].” The trial
court further ordered that Shenandoah and Acres Sand could use the
easement only during Conner’s “regular business hours.” The orders
are silent as to Shenandoah’s and Acres Sand’s request for
injunctive relief. We awarded Shenandoah and Acres Sand these
appeals.
Discussion
We begin by noting that the final orders of the trial court
were based on the easement granted by Shenandoah to Conner’s
principal shareholder and his wife in the 1982 deed and subsequently
transferred to Conner in the 1987 deed. We further note that none
of the parties assigns error to the trial court’s determination that
the easement is non-exclusive. Where error is not assigned to the
holding of the trial court, that holding becomes the law of the
current case and the basis for our decision. Trustees of Asbury
United Methodist Church v. Taylor & Parrish, Inc., 249 Va. 144, 154,
452 S.E.2d 847, 852 (1995). Accordingly, we will limit our review
to the dispositive issue of whether the specific facts of this case
would warrant permitting the owner of a non-exclusive easement to
restrict the access of the servient landowner and its lessee.
Under well-settled principles, a conveyance of an easement that
is non-exclusive does not strip the servient landowner of its right
to all use of the land. Walton v. Capital Land, Inc., 252 Va. 324,
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326, 477 S.E.2d 499, 501 (1996). The servient landowner retains the
right to use its property in any manner that does not unreasonably
interfere with the lawful dominant use. Id. The servient
landowner’s right to reasonably use the land includes the right to
grant to others additional easements to use the same land so long as
the additional uses are not unreasonably burdensome or inconsistent
with the existing dominant uses of the easement. Preshlock v.
Brenner, 234 Va. 407, 410, 362 S.E.2d 696, 698 (1987).
The party alleging such an unreasonably burdensome or
inconsistent use has the burden of proving this allegation. Hayes
v. Aquia Marina, Inc., 243 Va. 255, 259, 414 S.E.2d 820, 822 (1992).
Any use of a non-exclusive easement may be protected by an
injunction prohibiting an interfering use when the harm from the
interfering use is irreparable and cannot be adequately addressed in
damages. Black & White Cars, Inc. v. Groome Transp., Inc., 247 Va.
426, 431-32, 442 S.E.2d 391, 395 (1994). However, the party seeking
relief must show that the alleged harm is imminent, and not merely
speculative or potential. See Ridgwell v. Brasco Bay Corp., 254 Va.
458, 462-63, 493 S.E.2d 123, 125 (1997).
Here, Conner failed to show any significant actual conflicting
use of the easement by Shenandoah and Acres Sand. Furthermore, any
determination regarding the reasonableness of Shenandoah’s and Acres
Sand’s future use of the easement, when such use is not imminent, is
necessarily speculative. Similarly, Conner’s concerns over
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potential criminal acts or liability arising from trespassers are,
at best, speculative. Accordingly, we hold that Conner did not meet
its burden to show that any actual or imminent use by Shenandoah or
Acres Sand would irreparably harm or unreasonably interfere with
Conner’s use of the road within its easement.
The trial court, having determined that Conner’s easement is
non-exclusive, may not craft an order creating a de facto exclusive
easement. Allowing the servient landowner’s use of an easement to
be limited by Conner’s flexible and arbitrary choice, such as its
hours of operation, creates just such a de facto exclusive easement
and is improper. Rather, any limitation on subsequent uses of the
easement should be imposed narrowly and in such a manner as to
prohibit only actual material interference with the existing
dominant uses of the easement. See generally, Hayes, 243 Va. at
258, 414 S.E.2d at 822.
For these reasons, we will reverse the trial court’s judgment
in the suit initiated by Conner limiting Shenandoah and Acres Sand
to the use of the easement only during Conner’s hours of operation
and enter final judgment for Shenandoah and Acres Sand. Because the
trial court failed to address Shenandoah’s and Acres Sand’s request
for an injunction prohibiting Conner’s interference with their use
of the easement, we will reverse the judgment in that suit and
remand the case for further proceedings consistent with this
opinion.
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Record Nos. 972263 and 972266 — Reversed, remanded,
and final judgment.
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