Present: All the Justices
RACHEL P. CHANEY
v. Record No. 941562 OPINION BY JUSTICE BARBARA MILANO KEENAN
June 9, 1995
CASPER B. HAYNES, JR., ET AL.
FROM THE CIRCUIT COURT OF KING AND QUEEN COUNTY
Samuel Taylor Powell, III, Judge
In this appeal, we consider whether the evidence is
sufficient to support the trial court's ruling that a
prescriptive easement had been established. The dispositive
issue is whether the plaintiffs proved an adverse use.
The property involved in this dispute is located in King and
Queen County. In 1944, J.M. Garnett purchased a five-acre tract
which he later subdivided. By deed, the Garnetts granted each
lot purchaser
the right to use the strip of land 10-ft. wide over and
along the northern boundary of this lot and over and
along the northern boundary of all other lots in the
Re-Subdivision and over and along the remaining
property of J.M. Garnett extending from the public
highway on the east to low water mark of York River on
the west for purposes of access to the York River and
to the public highway. This right shall be in common
with a similar right of use by the [grantors] and the
owners of all the land now owned by J.M. Garnett and by
the owners of all the lots in the Re-Subdivision herein
recited.
The described easement runs across a lot now owned by Josephine
Erwin.
Casper B. Haynes, Jr., Josephine Erwin, and the other
plaintiffs are all successors in interest to the original
purchasers of the Garnett lots. Despite the fact that their
express easement runs across Erwin's property, the plaintiffs and
their predecessors have used land adjacent to Erwin's property to
gain access to the York River. This adjacent lot, formerly owned
by Frances Sutton, is now owned by Rachel P. Chaney. The
plaintiffs alleged that, at the time Chaney purchased the lot in
1991, she placed a fence across a portion of the lot, thus
preventing access to the river.
The plaintiffs filed a petition for temporary injunction,
asking the trial court to enjoin Chaney from interfering with
their use of an alleged ten-foot wide right-of-way across
Chaney's land between Route 667 and the York River. The
plaintiffs also filed a petition for declaratory judgment
asserting that they had established a prescriptive easement, ten
feet wide, over Chaney's land. The trial court denied the
request for injunctive relief and referred the petition for
declaratory judgment to a commissioner in chancery.
At the commissioner's hearing, all the plaintiffs who
testified stated that, until the present suit was filed, they
believed their easement ran over Chaney's property between a
group of cedar trees to the north and a stand of bushes to the
south. That area is approximately 40 to 50 feet wide.
These plaintiffs further stated that they used this way to
get to the river because they understood that their easement was
located there. One plaintiff, Michael S. Duvall, testified that
he used the way with knowledge that his easement was only ten
feet wide. Duvall stated that, when he used the way, he drove
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his vehicle straight down the middle of the area between the
trees and the shrubs, apparently in an attempt to comply with the
terms of his easement. The other plaintiffs testified that they
used the whole area between the trees and the shrubs because they
thought it was included in their easement.
The commissioner received other evidence indicating that the
plaintiffs' use of the way was exclusive, continuous,
uninterrupted, and with the acquiescence of the Suttons, and that
such use had continued for a period of over 20 years. The
commissioner concluded that the plaintiffs had acquired a
prescriptive easement over Chaney's property, and stated that
they had established an adverse use by their use of the entire
area between the trees and the shrubs.
After overruling Chaney's exceptions to the commissioner's
report, the trial court entered an order confirming the report.
This appeal followed.
Chaney argues that the plaintiffs did not establish a
prescriptive easement because they did not prove the element of
adverse use. Chaney asserts that, if the users of a way are
under the mistaken belief they have an express easement granting
them the right to use the way, and they do not intend to use land
over which they have no right-of-way, then such use of the
property is not adverse. See Clatterbuck v. Clore, 130 Va. 113,
121-22, 107 S.E. 669, 672 (1921).
In response, the plaintiffs argue that the element of
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adverse use is satisfied by their use of the entire area between
the cedar trees and the shrubs, instead of only a ten-foot wide
strip across the property corresponding to the width of the
easement they believed they were entitled to use. Citing Pettus
v. Keeling, 232 Va. 483, 489-90, 352 S.E.2d 321, 326 (1987), the
plaintiffs contend that the location and size of their right-of-
way should be measured by their actual use of the property. We
disagree with the plaintiffs.
Our standard of review in a case like this is well
established. Since the trial court fully approved the report of
a commissioner in chancery who heard evidence ore tenus, the
trial court's decree will not be reversed on appeal unless it is
plainly wrong. Ward v. Harper, 234 Va. 68, 70, 360 S.E.2d 179,
181 (1987); Pavlock v. Gallop, 207 Va. 989, 994, 154 S.E.2d 153,
157 (1967). Thus, we must determine whether the conclusions of
the commissioner, as approved by the trial court, are supported
by credible evidence. Ward, 234 Va. at 70, 360 S.E.2d at 181;
Surf Realty Corp. v. Standing, 195 Va. 431, 436, 78 S.E.2d 901,
904 (1953).
In determining whether the plaintiffs established a
prescriptive easement over Chaney's land, we apply the settled
rule that
[t]o establish a private right of way by prescription
over lands of another, the claimant must prove, by
clear and convincing evidence, that his use of the
roadway was adverse, under a claim of right, exclusive,
continuous, uninterrupted, and with the knowledge and
acquiescence of the owners of the land over which it
passes, and that the use has continued for at least 20
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years.
Ward, 234 Va. at 70, 360 S.E.2d at 181. Accord Pettus, 232 Va.
at 485, 352 S.E.2d at 323. However, "when the user of a way over
another's land clearly demonstrates that his use has been open,
visible, continuous, and exclusive for more than twenty years,
his use is presumed to be under a claim of right." Umbarger v.
Phillips, 240 Va. 120, 124, 393 S.E.2d 198, 200 (1990). Accord
Pettus, 232 Va. at 485, 352 S.E.2d at 323. "[T]his presumption
of a grant or adverse right is in Virginia prima facie only and
may be rebutted by evidence." Davis v. Wilkinson, 140 Va. 672,
677, 125 S.E. 700, 702 (1924).
Chaney argues that any such presumption in the plaintiffs'
favor is rebutted, as a matter of law, by the undisputed evidence
that all the plaintiffs used the way under the mistaken belief
that their express easement designated that location, and that
they did not intend to use any land not included in the grant.
We agree.
The essence of an adverse use is the intentional assertion
of a claim hostile to the ownership right of another. Use of
property, under the mistaken belief of a recorded right, cannot
be adverse as long as such mistake continues. See Clatterbuck,
130 Va. at 121-22, 107 S.E. at 672; Clinchfield Coal Co. v.
Viers, 111 Va. 261, 264, 68 S.E. 976, 977 (1910); Schaubuch v.
Dillemuth, 108 Va. 86, 89, 60 S.E. 745, 746 (1908). The present
record shows that the plaintiffs based their use of Chaney's land
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solely on their mistaken belief that it was the land described in
their express easement. Thus, the plaintiffs have failed to
prove that a prescriptive easement was established.
We find no merit in the plaintiffs' contention that their
use of the "whole area" between the cedar trees and the bushes
proved an intent to use adversely all but a ten-foot-wide strip
across the property. With the exception of Duvall, all the
plaintiffs who testified stated that they believed their easement
covered the entire area in question. Duvall testified that he
used only a strip down the center of the way. Thus, none of the
plaintiffs' testimony evidenced an intent to use any property
other than what they believed their express easement allowed.
We also disagree with the plaintiffs' contention that our
holdings in Pettus and in McNeil v. Kingrey, 237 Va. 400, 377
S.E.2d 430 (1989), require a different result here. In those
cases, we upheld findings that prescriptive easements had been
established when the evidence showed, among other things, that
both of the easement claimants held a general belief they had the
right to use the ways at issue. Pettus, 232 Va. at 488, 352
S.E.2d at 325; McNeil, 237 Va. at 402, 377 S.E.2d at 431.
Neither of those claimants, however, asserted that his right
derived from an express easement. Thus, the claimants' intended
use of the respective properties was hostile to the interests of
the property owners and satisfied the requirement of an adverse
use. Here, in contrast, the plaintiffs intended to use only the
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land described in their express easement. Since the plaintiffs
failed to prove an adverse use, we conclude that the trial
court's ruling approving the commissioner's report is plainly
wrong.
For these reasons, we will reverse the trial court's
judgment and enter final judgment in favor of Chaney.
Reversed and final judgment.
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