Present: All the Justices
DAVID AUERBACH, ET AL.
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
v. Record No. 960062 November 1, 1996
COUNTY OF HANOVER, ET AL.
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H.C. Taylor, Judge
This appeal arises from the trial court's judgment reversing
the denial by a county subdivision agent of a proposed
subdivision plat for a tract of land owned by Hubert C. and
Pamela M. Mentz (the Mentzes). The agent refused to approve the
proposed subdivision by the Mentzes primarily on the ground that
an easement of right-of-way across an adjoining servient estate
did not serve the entire subdivision and was, therefore,
inadequate to provide the access required under a local zoning
ordinance. The appellants, owners of the servient estate and
intervenors below, assert that the trial court erred in finding
that the easement serves the entire proposed subdivision and
directing the County to approve the plat. Finding no error, we
will affirm the judgment of the trial court.
In 1986, the Mentzes acquired title to a tract of land
consisting of approximately 122.5 acres in Hanover County (the
1986 tract) by deed recorded in the clerk's office of the circuit
court in deed book 659 at page 707. Access from the 1986 tract
to State Route 606 was provided by an easement granted to the
Mentzes' predecessors in title across an adjoining servient
estate. The record shows also that the easement originally
attached to the 1986 tract was limited to farm vehicles and
vehicles for the residences on the 122.5 acres at the time the
easement was created. In 1991, the Mentzes acquired a portion of
a tract adjoining the 1986 tract consisting of approximately 10
acres (the 1991 tract) with direct access to State Route 606.
In 1992, the Mentzes entered into a contract to convey a
section of the 1991 tract to David Auerbach and Susan C. Ortmann
(the Auerbachs). The deed conveying "Parcel A" and recorded in
deed book 972 at page 340 includes the following language:
[The Mentzes] . . . convey unto [the Auerbachs]
. . . the following described property, to-wit:
ALL that certain piece and parcel of land
. . . being more particularly described as
Parcel A on a plat of two parcels of land
. . . dated January 9, 1991 and revised on
August 18, 1992 and recorded herewith.
. . . .
[The Mentzes] hereby reserve an easement of
right-of-way 50 feet in width along the western line of
Parcel A leading from State Route 606 to Parcel B as a
means of ingress and egress to and from Parcel B and
State Route 606, said easement being shown as lying on
the westerly side of Parcel A on the hereinabove
described plat.
[The Mentzes] do further grant and convey unto
[the Auerbachs] a first right of refusal to purchase
Parcel B consisting of 7.422 acres should [the Mentzes]
sell that parcel of land.
[The Mentzes] do hereby correct a certain plat
drawn by Goodfellow, Jalbert, Beard and Associates Inc.
dated January 9, 1991 and recorded in Deed Book 934,
Page 653, Clerk's Office of the Circuit Court of
Hanover County, which plat contains a description of 10
acres including Parcel A hereinabove described. The
aforesaid plat recorded herewith is substituted for the
plat recorded in Deed Book 934, Page 653 and the
description is corrected to refer to two parcels, A and
B. Parcel B containing 7.422 acres is added on to the
property described in Deed Book 659, Page 707 as an
add-on, not for the purposes of creating additional
building lots.
(Emphasis added.)
Shortly after this deed was recorded, a dispute arose
between the Mentzes and the Auerbachs over the scope of the
easement. The Mentzes instituted a chancery suit for declaratory
judgment and other equitable relief against the Auerbachs seeking
to establish that the easement over Parcel A was servient to the
1986 tract by virtue of Parcel B being added on to the larger
tract, thus creating a single unitary tract (the combined tract)
of approximately 129 acres.
During the pending dispute over the scope of the easement,
the Mentzes proceeded with having the subdivision of the combined
tract, including an access road over the Parcel A easement,
platted. This subdivision plat was submitted to Hanover County
for zoning approval on June 17, 1994. The plat was disapproved
on July 22, 1994. A resubmitted plat was also disapproved later
in 1994. In each case, the zoning authority cited the limited
access provided by the Parcel A easement as one of the reasons
for disapproving the subdivision plat.
On October 13, 1994, the Mentzes filed an appeal in the
trial court challenging the zoning authority's denial of the
plat. On December 19, 1994, the Auerbachs filed a petition to
intervene in that proceeding. In their petition, the Auerbachs
contended that their interest in the proceeding arose out of the
pending chancery suit for declaratory judgment filed against them
by the Mentzes. The petition asserted that the resolution of the
appeal in favor of the County essentially would moot the claims
in the other suit. The motion to intervene was granted on March
23, 1995 and the pending declaratory judgment suit was stayed.
The parties submitted briefs including substantial
appendices of extrinsic evidence and argued their positions
before the trial court on July 25, 1995. The parties agreed, as
they do here, that the dispositive issue was whether the easement
served the combined tract or merely Parcel B. Thereafter, the
trial court issued a final order directing that the County
approve the subdivision plat stating, "After a thorough
examination of the Deed and Plat it is clear to the Court that
the 50 foot easement reserved benefits the whole 129, more or
less, acre tract [the combined tract] belonging to the
[Mentzes]." We awarded the Auerbachs this appeal.
The Auerbachs contend the language of the deed restricts the
use of the easement serving the 7.4 acres of Parcel B because the
specific language creating the easement makes no mention of the
larger 1986 tract. However, we are not permitted to read the
language creating the easement in isolation from the remainder of
the deed. To ascertain the intent of the grantors, the deed is
to be examined as a whole and effect given to all of its terms
and provisions not inconsistent with some principle of law or
rule of property. See Fitzgerald v. Fitzgerald, 194 Va. 925,
929, 76 S.E.2d 204, 207 (1953).
In Faison v. Union Camp Corporation, 224 Va. 54, 294 S.E.2d
821 (1982), we held that where a deed incorporates a plat by
reference, "that plat must be considered 'part of the instrument
itself.'" Id. at 59, 294 S.E.2d at 824 (quoting Richardson v.
Hoskins Lumber Co., 111 Va. 755, 757, 69 S.E. 935, 936 (1911)).
Moreover, references on the plat to deeds recorded incorporate
the legal descriptions of those deeds into the plat and, thus,
into any subsequent deeds referencing the plat. Id.
The same principles apply to the facts of this case. The
terms "Parcel A" and "Parcel B" are nowhere sufficiently
described in the text of the deed itself. Without reference to
the incorporated plat, there would be an ambiguity in the deed.
However, the clear and unambiguous language on the incorporated
plat and its depiction of the perimeter metes and bounds of these
parcels resolves any possible ambiguity and establishes the
grantors' intent.
Read together, the deed and the plat incorporated therein
establish that the 1991 tract was divided into two separate
tracts. Parcel A, the smaller of the two tracts, was conveyed by
the deed subject to a fifty-foot-wide easement of ingress and
egress along its westerly edge between State Route 606 and the
remainder of the 1991 tract. Both the deed and the plat make
clear that this remainder, designated as Parcel B, is an "add-on"
parcel to the 1986 tract, described on the plat both in the metes
and bounds depiction and in a marginal note by reference to the
deed recorded in deed book 659 at page 707.
Since "add-on" is not a term of art with a recognized
meaning in law, we must assume that it has its usual and ordinary
meaning. Conner v. Hendrix, 194 Va. 17, 25, 72 S.E.2d 259, 264
(1952). In the present context, we think such a meaning is
something added on or an addition to something which creates a
larger whole. Thus, by the express language of the deed and its
incorporated plat, Parcel A was conveyed to the Auerbachs subject
to an easement in favor of Parcel B. However, as described by
the deed and the incorporated plat, Parcel B is not merely the
remaining 7.4 acres of the 1991 tract, but that acreage added
onto the 1986 tract and creating the combined tract of
approximately 129 acres.
The provision for a right of first refusal to purchase
"Parcel B consisting of 7.422 acres" in the deed does not alter
our conclusion. That provision is expressly limited to the 7.422
acre tract for the purpose of the right of first refusal to
purchase should the Mentzes sell that tract. Nothing in the
right is inconsistent with Parcel B being added onto the 1986
tract to create the combined tract. Rather, this right merely
prohibits the Mentzes from selling the Parcel B portion of the
combined tract at a later date without first offering it to the
Auerbachs. See Lake of the Woods Assoc. v. McHugh, 238 Va. 1, 5,
380 S.E.2d 872, 874 (1989) ("the right of first refusal only
becomes operative if and when the owner decides to sell").
Nor does the deed's restriction on the add-on of Parcel B as
"not for the purposes of creating additional building lots"
exclude a finding that the easement serves the combined tract.
To the contrary, this restriction clearly contemplates that the
combined tract may be subdivided into building lots. The
restriction on the use of the portion of the combined tract
added-on from the 1991 tract clearly connotes that the add-on
parcel serves some other purpose--namely to permit creation of
the easement servient to the combined tract.
We hold that the grantors' intent, express and unambiguous
on the face of the deed, its incorporated plat, and all the
references thereon, was to establish an easement over Parcel A
servient to the combined tract of approximately 129 acres rather
than merely to the 7.4 acres of "Parcel B." * Accordingly, we
will affirm the order of the trial court.
Affirmed.
CHIEF JUSTICE CARRICO, with whom JUSTICE HASSELL and JUSTICE
KEENAN join, dissenting.
Obviously uncertain that the Mentz to Auerbach deed is
sufficient in its own terms to impose upon Parcel A the extra
burden of an easement appurtenant to the 122.5-acre Mentz tract,
the majority strives to convince the reader that any uncertainty
is removed when the deed is read together with the incorporated
plat. But the plat does not aid the position taken by the
majority; all the majority can point to on the plat is the "add-
on" language similar to the language contained in the deed. So,
if the deed is not sufficient in and of itself, it is not
sufficient even with the plat.
Be that as it may, the deed, in unmistakable terms, reserves
"an easement of right-of-way 50 feet in width along the western
line of Parcel A leading from State Route 606 to Parcel B as a
*
Appellants further assert that the trial court erred in
receiving and considering parol evidence in interpreting the deed
creating the easement when there was no ambiguity in that deed.
Because we hold that the deed, when properly examined, grants an
easement serving the entire area of the subdivision, we need not
consider whether the trial court's judgment was influenced by the
parol evidence. See, e.g., Doswell Ltd. Partnership v. Virginia
Power, 251 Va. 215, 222, 468 S.E.2d 84, 88 (1996).
means of ingress and egress to and from Parcel B and State Route
606." (Emphasis added.) Nothing in this language even suggests
that the easement shall also be appurtenant to the 122.5-acre
tract. Furthermore, the plat graphically depicts the easement
exactly as it is described in the deed, with the easement shown
touching Parcel B at a point several hundred feet from the
nearest line of the 122.5-acre tract. Nothing in this depiction
indicates that the easement is also appurtenant to the 122.5-acre
tract.
Then comes the language that is so crucial to the result
reached by the majority, viz., "Parcel B . . . is added on to the
[122.5-acre tract] as an add-on." This language is contained in
a paragraph which states that it is included in the deed for the
purpose of correcting a certain plat and which also states that
the correction is made "not for the purposes of creating
additional building lots."
Now, one would think that if it were the intention of the
parties to make the easement in question appurtenant to the
122.5-acre tract, a most important result to all concerned, they
surely could have found clear and direct language to express
their intention, rather than the incomprehensible "added on . . .
as an add-on" language. As it is, I think that the language used
adds nothing even remotely connecting the use of the easement to
the 122.5-acre tract. At least, I hope we have not yet reached
the point where we will allow such meaningless language to be
considered sufficient to affect estates in land. I would reverse
the judgment of the trial court and enter final judgment here in
favor of Auerbach and Ortmann.