Beach v. Turim

PRESENT: All the Justices

BARBARA BEACH
OPINION BY
v. Record No. 130682 JUSTICE DONALD W. LEMONS
FEBRUARY 27, 2014
JAY TURIM, TRUSTEE, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Lisa B. Kemler, Judge

In this appeal, we consider whether the Circuit Court of

the City of Alexandria ("trial court") erred when it held that

the owners of a lot in a subdivision held an express easement.

I. Facts and Proceedings Below

Jay and Judith Turim (the "Turims") are the Trustees of the

Turim Family Trust, which owns 616 S. Royal Street in

Alexandria, Virginia. The Turims have resided at 616 S. Royal

Street since 2002. Barbara Beach ("Beach") is the owner of 614

S. Royal Street, and has resided there since 1987. Both

properties are part of the Yates Gardens Subdivision, which was

created by deed of subdivision in June 1960. There are eleven

lots in the subdivision, numbered 1-6 and 507-511. Beach's

property is identified as Lot 509, and the Turim's property is

Lot 510.

The deed of subdivision states that "easements are hereby

created as shown on the attached plat." The subdivision plat

depicts a 4 foot "private walk easement" at the rear of Lots 1-

6, and Lots 507-511. There is a notation on the plat that
states, "4' easement is on Lots 1, 2, 3, 4, 5, 6, 507, 508, and

509 only."

On October 7, 2011, Beach erected a wooden wall at one end

of the easement, blocking the Turims' access to the easement.

On November 9, 2011, Beach also had concrete poured over the

steps located within the easement that provided usable access to

the Turims' lot, because their rear yard is at a lower elevation

than the easement. The Turims filed an amended complaint in the

trial court alleging a private nuisance against Beach. They

asserted that their property, Lot 510, was the dominant estate

and that Lot 509, Beach's property, was the servient estate.

According to the complaint, the Turims had regularly used the

easement, as did the previous owners of Lot 510, and they had

access through an archway at the rear of their property where

the easement began.

The Turim's complaint asked the trial court to issue an

injunction requiring Beach to remove the wall and restore the

steps and to prohibit Beach from taking further action to

interfere with their easement rights. *

Beach filed a counterclaim against the Turims for trespass.

She asserted that Lot 510 was not included in the notation on

the plat granting the private walk easement on the subdivision

*
They also sought compensatory and punitive damages and
attorney's fees, but those issues are not before the Court in
this appeal.

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plat and that the Turims had no right to use the easement.

Beach also filed a demurrer to the Turims' complaint, arguing

that the easement only applied to Lots 1-6 and 507-509, not 510

or 511, by the express words of the deed and plat.

After a hearing on the demurrer, the trial court issued an

opinion letter on January 19, 2012, in which it found that Lot

510 abutted the easement, that it was the dominant estate and

Lot 509 the servient estate, and that the Turims were entitled

to the easement which was reasonably beneficial to their

property. The trial court relied on this Court's holdings in

Ryder v. Petrea, 243 Va. 421, 416 S.E.2d 686 (1992), and Lindsay

v. James, 188 Va. 646, 51 S.E.2d 326 (1949), in reaching its

conclusion.

The parties then filed cross-motions for partial summary

judgment. At the hearing on the cross-motions, counsel for the

Turims stated that the only issue the trial court needed to

decide was "whether or not the Turims ha[d] an express[]

easement over the Beach property." The trial court granted the

Turims' motion and denied Beach's, holding that Lot 510

benefited from the easement.

The case proceeded to a bench trial on two limited issues:

(1) whether the stairs that were constructed between Lot 510 and

the easement were a reasonable improvement; and (2) and whether

they were a trespass on Beach's property. At trial, counsel for

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the Turims reiterated that they had only claimed to have an

express easement over the 4' private walk, and not a

prescriptive easement. Counsel stated, "we always thought and

knew and you agree that we have an express easement over the

easement, the 4-foot-wide area. And so that's why we're

responding that – you know, we're not claiming a prescriptive

easement." Evidence was presented regarding when the steps were

constructed, whether they were a reasonable improvement to the

easement, and whether the steps violated the Zoning Code for the

City of Alexandria.

The trial court issued a letter opinion on October 31,

2012. The trial court held that it could not determine from the

evidence presented when the steps were originally constructed,

but that they were at least in existence since 2002 when the

Turims purchased Lot 510. The court further held that the steps

were a reasonable improvement to the uses contemplated by the

easement, and granted an injunction requiring Beach to restore

the steps within the easement to their former condition.

The trial court entered its final order on January 25,

2013, incorporating the October 31, 2012 letter opinion. The

court suspended the injunction ordering Beach to restore the

steps pending an appeal, but precluded Beach from blocking the

Turims' use of the easement during the pendency of an appeal.

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 Beach appealed the trial court's rulings, and this Court

granted her an appeal on the following assignments of error:

1. The trial court erred in ruling that the plaintiffs are the
beneficiaries of an express easement over a 4 foot private
walk that abuts their property where the subdivision plat
and deed did not convey an easement for their benefit.

2. The trial court erred in relying on Ryder v. Petrea, 243
Va. 421 (1992), and Lindsay v. James, 188 Va. 646 (1949),
which are inapplicable and distinguishable.

3. The trial court erred in ordering injunctive relief that
would be illegal; Beach's compliance with the court-ordered
injunction to restore the steps would violate the City of
Alexandria's zoning code, would not be feasible and would
be disproportionately harmful to Beach.

4. The trial court lacked authority and jurisdiction to
adjudicate the rights of other property owners (including
those on Lots 1-6, 507, 508, and 511), who were not joined
in this case.

II. Analysis

A. Standard of Review

Whether the Turims have an express easement over Beach's

property presents a pure question of law. This Court reviews

pure questions of law de novo. See PKO Ventures, LLC v. Norfolk

Redev't & Hous. Auth., 286 Va. 174, 182, 747 S.E.2d 826, 830

(2013).

B. Express Easement

This case is before the Court on the limited issue whether

the trial court erred in holding the Turims have an express

easement over the 4' private walk that abuts their property. At

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trial, counsel for the Turims was clear that they were only

claiming "an express easement."

An easement is the "privilege to use the land of another in

a particular manner and for a particular purpose," but it does

not give the owner of the dominant estate an ownership interest

in the servient tract. Brown v. Haley, 233 Va. 210, 216, 355

S.E.2d 563, 567-68 (1987); Russakoff v. Scruggs, 241 Va. 135,

138, 400 S.E.2d 529, 531 (1991). Easements may be created by

express grant or reservation, by implication, by estoppel or by

prescription. Russakoff, 241 Va. at 138, 400 S.E.2d at 531.

In Burdette v. Brush Mountain Estates, LLC, 278 Va. 286,

682 S.E.2d 549 (2009), we laid out the following well-

established principles:

Neither statutory nor common law requires
the grantor of an easement to employ any
particular words of art so long as the
intention to grant is so manifest on the
face of the instrument that no other
construction could be put upon it. Thus, a
provision in an instrument claimed to create
an easement must be strictly construed, with
any doubt being resolved against the
establishment of the easement.

Id. at 297, 682 S.E.2d at 555 (internal citations and quotation

marks omitted).

In Burdette, we held that to create an express easement,

there must be an instrument of conveyance, although that

instrument need not be a deed. Id. at 299, 682 S.E.2d at 556.

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Also, "the instrument must contain operative words of conveyance

sufficient to demonstrate the manifest intention to grant an

easement." Id.

The deed in this case merely states "easements are hereby

created as shown on the attached plat." This Court has held

that "[w]hen a deed incorporates a plat by reference, the plat

is considered part of the deed itself but only for descriptive

purposes to establish the metes and bounds of the property being

conveyed." Burdette, 278 Va. at 298, 686 S.E.2d at 555

(emphasis added).

The deed in this case does not state to whom the easement

is granted. Also, the purpose of the easement is, at best,

ambiguous. The plat merely describes the location of the

easement, on Lots 1-6, 507, 508 and 509 only. To constitute a

grant, the instrument of conveyance must sufficiently describe

the grantees "so as to be distinguished from all others."

Corbett v. Ruben, 223 Va. 468, 472, 290 S.E.2d 847, 849

(1982)(internal quotation marks omitted). The deed in this

case, including the plat, fails to identify to whom the easement

is granted. Although it describes the location of the easement,

there is nothing that states that the easement is granted to Lot

510.

In reaching its conclusion that an express easement had

been created in favor of the Turims, the trial court relied on

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this Court's opinions in Ryder and Lindsay. On appeal, the

Turims also rely on the holdings in those two cases. Ryder and

Lindsay stand for the proposition that in the context of a

subdivision, a property owner abutting a designated street,

alley, or right-of-way that was intended for public use, but

which was not properly dedicated for such use, may use that way

for ingress and egress. Ryder, 243 Va. at 423-24, 416 S.E.2d at

688; Lindsay, 188 Va. at 656, 51 S.E.2d at 331. These cases do

not mean that the Turims have an express easement merely because

their lot abuts the private walk shown on the subdivision plat.

Ryder and Lindsay are simply not applicable to whether an

express easement is created in the instrument of conveyance.

And as we stated earlier, the issue before this Court is limited

to whether the Turims have an express easement.

As we reiterated in Burdette, easements "must be strictly

construed, with any doubt being resolved against the

establishment of the easement." 278 Va. at 297, 682 S.E.2d at

555 (internal quotation marks omitted). Applying this rule of

construction, we hold that the language in this deed, and the

incorporated plat, is insufficient to create an express easement

in favor of Lot 510 and the Turims. Merely identifying the

location of an easement, or the burdened estate, is not

sufficient to create an express easement. To create an express

easement, the property which benefits from the easement must be

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identified in some manner. See Corbett, 223 Va. at 472, 290

S.E.2d at 849. Accordingly, we hold that the Turims do not have

an express easement over Beach's property.

Based upon our holding that the subdivision deed does not

create an express easement in favor of the Turims, it is not

necessary for us to address assignments of error 3 and 4.

III. Conclusion

We will reverse the judgment of the trial court holding

that the Turims are the beneficiaries of an express easement

over the 4' private walk. We will also vacate that portion of

the injunction precluding Beach from blocking the Turim's use of

the easement and requiring her to remove the wall blocking the

Turim's access to the easement and to restore the steps within

the easement.

Reversed and final judgment.

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