PRESENT: All the Justices
MARBLE TECHNOLOGIES, INC., ET AL.
OPINION BY
v. Record No. 140972 JUSTICE S. BERNARD GOODWYN
June 4, 2015
STEPHEN M. MALLON, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Louis R. Lerner, Judge
In this appeal, we consider whether an express easement
created by a 1936 deed was stationary or moved with the
changing mean high water line.
Background
In 1936, the Grand View Development Corporation dissolved
and distributed most of a large tract of real estate in what is
now the White Marsh Beach area of Hampton, Virginia, to its
shareholders. The deed distributing the land stated
The parties to this deed take the above
mentioned and described property subject to an
easement on a twenty foot road as designated on the
map recorded with this deed, which easement is to run
with the land and from the parties hereto to their
assigns and heirs but it is expressly stated that the
said twenty foot road shall not become a public road,
but merely an easement for the parties, their heirs
or assigns to the deed.
The referenced map includes two parallel lines labeled “Twenty
Foot Road” (the easement) crossing the lots that fronted the
Chesapeake Bay. The map depicts “S 20-00 W” as the southern
starting point of the easement. Following the easement from
south to north, a place where the easement makes a slight bend
is labelled “980.0’ S29.55W.” Thereafter, between the parallel
lines depicting the road is written “Along Present Mean High
Water.” * A “Stake” is depicted at the northern terminus of the
easement.
Due to changes in the sand and water levels since 1936,
the easement, as located on the map, is now under the
Chesapeake Bay. Because of a dispute over whether the easement
still exists, Stephen M. Mallon, Helen G. Mallon, Arne
Hasselquist, Lauren Hasselquist and Grandview Islanders, LLC
(collectively, “Mallon”), landowners of some of the properties
conveyed by the 1936 deed, sought a declaratory judgment in the
Circuit Court of the City of Hampton. They claim that the
location of the express easement moved with the mean high water
line as the beach eroded.
Respondents Marble Technologies, Inc. and Sebastian
Plucinski (collectively, “Marble”) filed an answer. They
assert that the easement has not moved and the land where the
*
The National Oceanic and Atmospheric Administration
defines “mean high water line” as the location on the map where
the land meets the average “maximum height reached by a rising
tide” over the “specific 19-year period adopted by the National
Ocean Services as the official time segment over which tide
observations are taken.” United States Department of Commerce,
Tide and Current Glossary 11, 15, 17 (2000), available at
http://tidesandcurrents.noaa.gov/publications/glossary2.pdf
(last visited June 2, 2015).
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easement was located is now on the bottom of the Chesapeake
Bay, resulting in extinguishment of the easement.
The circuit court granted several opportunities for the
addition of new parties. On November 30, 2012, upon joint
motion of the parties, the court ordered that the style of the
case be amended to add additional parties who had an interest
in the suit. On March 12, 2013, the court granted Marble's
motion for leave to add additional defendants to its
counterclaim, cross-claim and third party complaint. On April
3, 2013, despite objection by Mallon, the circuit court granted
Marble's motion for a continuance of the trial to add necessary
parties.
Although the amended complaint, counterclaim, cross-claim
and third party complaint include more than forty individuals
and entities as parties and no additional parties were added
after the April 3, 2013 continuance, approximately six months
later, Marble asked for another continuance of the trial so
that necessary parties could be added. The court denied the
request for a continuance and proceeded with the trial on
October 30, 2013. Prior to trial, the parties stipulated that
not all of the successors-in-title of the properties conveyed
in the deed were parties to this action.
At trial, the circuit court considered the issue of
whether the express terms of the easement were such that the
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easement moved with the changing coastline. The court held
that the deed and map were ambiguous and considered parol
evidence to ascertain the intent of parties to the deed and
map. The parties presented conflicting expert testimony on
whether the map’s drafter intended to have the easement remain
stationary or move with the changing coastline.
The circuit court ruled that Mallon has a variable express
easement that moves with the mean high water line. Marble
appeals.
Marble assigns error as follows:
1. The lower court erred in holding a trial and
entering a final order without first joining as
necessary parties all the landowners that would be
affected by any declaratory judgment rendered.
2. The lower court erred in holding that the
twenty foot easement on the road established in 1936
was not extinguished by the subsequent erosion of the
shoreline.
3. The lower court erred in finding the
relevant deed and plat ambiguous and in allowing
Plaintiffs’ expert to offer parole [sic] evidence
regarding the intent of the drafters of those
documents.
Analysis
Marble argues that the circuit court erred by failing to
join all necessary parties and rendering final judgment when
all parties who owned property that was part of the 1936
conveyance were not before the court. Mallon argues that the
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circuit court did not err in deciding the case without adding
additional parties.
Concerning the issue of necessary parties, we have stated
that “‘[a]ll persons interested in the subject matter of a suit
and to be affected by its results are necessary parties.’”
Michael E. Siska Revocable Trust v. Milestone Dev., LLC, 282
Va. 169, 173, 715 S.E.2d 21, 23 (2011) (quoting Bonsal v. Camp,
111 Va. 595, 598, 69 S.E. 978, 979 (1911)). Generally, a court
should only decide a case on its merits if all necessary
parties are before it. Id. at 173-81, 715 S.E.2d at 23-27.
However, the necessary party doctrine does not implicate
subject matter jurisdiction. Id. at 176-81, 715 S.E.2d at 25-
27. As relates to necessary parties, a circuit court has
discretion to take steps to correct defects and to decide
whether to exercise its discretion to permit the case to
continue with the existing parties. Id. We review a circuit
court’s decision to allow a matter to proceed without necessary
parties for an abuse of discretion. Id.
A court can choose to proceed without a necessary party if
(1) it is “practically impossible” to join a necessary party
and the missing party is represented by other parties who have
the same interests; (2) the missing party’s interests are
separable from those of the present parties, so the court can
rule without prejudicing the missing party; or (3) a necessary
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party cannot be made a party, but the court determines that the
party is not indispensable. Id. at 176, 179-80, 715 S.E.2d at
25, 27 (citation and internal quotation marks omitted); Rule
3:12(c). With the numerous and varied parties added to the
action, the multiple opportunities the court provided the
litigants to add parties and no claim that any of the allegedly
missing parties were indispensable, we conclude that the
circuit court did not abuse its discretion in allowing the case
to proceed to trial with the parties it had before it.
Marble contends that the deed and map unambiguously
designated the easement as existing at a specific location and
that the easement has not moved with the erosion of the land.
Moreover, Marble claims that because the deed and map
unambiguously dictated that the easement was stationary, the
circuit court erred in considering parol evidence.
Mallon asserts that the court correctly allowed parol
evidence to interpret the deed and map because the map is
ambiguous about whether the easement moves with the mean high
water line. They claim that the easement has moved over time
to follow the changing mean high water line.
We review de novo a circuit court’s interpretation of
words in a deed. Beeren & Barry Invs., LLC v. AHC, Inc., 277
Va. 32, 37, 671 S.E.2d 147, 150 (2009). If the language in a
deed creating an easement is unambiguous, courts should
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interpret the deed solely based on the deed’s language.
Pyramid Dev., L.L.C. v. D&J Assocs., 262 Va. 750, 754, 553
S.E.2d 725, 728 (2001). “Only when the language is ambiguous
may a court look to parol evidence, or specifically, to the
language employed in light of the circumstances surrounding the
parties and the land at the time the deed was executed” in
order to discern the parties’ intent. Id. (citation and
internal quotation marks omitted).
In this case, the deed stated that the property recipients
took their property “subject to an easement on a twenty foot
road as designated on the map recorded with this deed.” The
accompanying map depicts “S 20-00 W” as the southern end of the
easement. Additionally, it denotes a point where the easement
makes a slight bend as “980.0’ S29.55W.” It designates the
easement as running “Along Present Mean High Water.” The map
notes the location of a “Stake” at the northern end of the
designated “Twenty Foot Road.”
Mallon claims that the designation “Along Present Mean
High Water” means that the location of the express easement
moves with the movement of the mean high water line. We must
discern the meaning of “present.” Webster’s Third New
International Dictionary defines “present” as “now existing or
in progress: begun but not ended: now being in view, being
dealt with, or being under consideration: being at this time:
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not past or future: contemporary.” Webster’s Third New
International Dictionary 1793 (1993); see also Black’s Law
Dictionary 1374 (10th ed. 2014) (defining “present” as “now
existing; at hand”).
The map depicts the easement as existing “Along Present
Mean High Water,” meaning the line as it existed in 1936 when
the map was created. (Emphasis added.) This is confirmed by
the fact that the map utilizes metes and bounds and a
stationary marker to show the easement’s location. Thus, we
hold that the map is unambiguous regarding the location of the
easement. The metes and bounds descriptions and the stationary
markers dispel any claim of ambiguity. Nothing on the map or
in the deed indicates that the easement was to move with the
changing coastline. Compare Lipke v. Windy Gates, LLC, 20 LCR
440, 448 (Mass. Land Ct. 2012) (finding beach access easements
were not extinguished because the easements were described in
“non-specific terms of the sort that can readily accommodate a
changing seashore” (emphasis added)), aff'd, 85 Mass. App.
Unpub. LEXIS 254, at *11 (2014) (“[A]s the Land Court judge
describes, the easements were granted using nonspecific terms,
which accommodate a changing landscape.” (emphases added)),
with Bubis v. Kassin, 733 A.2d 1232, 1234, 1239 (N.J. Super.
Ct. App. Div. 1999) (indicating that an express private
easement over a “certain strip of land . . . as shown on [a]
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Map . . . and described as follows: Bounded on [all sides]”
did not move inland with the mean high water line despite the
fact that the mean high water line completely eclipsed the
encumbered strip of land (emphases added)); see also Tysen v.
Cedar Grove Beach Corp., 188 N.Y.S. 361, 363 (N.Y. App. Div.
1921) (“[T]he washing away of the original locus in quo by
erosion would seem to make the alleged easement . . . very
doubtful and shadowy.”).
Because the deed and map are unambiguous, there was no
need for the circuit court to review evidence beyond the
documents themselves to interpret them. Therefore, the circuit
court erred in considering parol evidence.
The easement never moved from the mean high water line as
it existed in 1936. The beach has eroded in the meantime, and
the land where the easement was once located is now under the
Chesapeake Bay and cannot serve as a road. Thus, the express
easement has been extinguished. See Corbett v. Ruben, 223 Va.
468, 472, 290 S.E.2d 847, 849 (1982) (holding that courts may
presume an easement by grant without a term “was intended to be
terminated when the purpose for which it was created can no
longer be served”); McCreery v. Chesapeake Corp., 220 Va. 227,
233, 257 S.E.2d 828, 831 (1979) (easement was extinguished by
cessation of the purpose for which it was granted); Hudson v.
American Oil Co., 152 F. Supp. 757, 765 (E.D. Va. 1957), aff’d
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on other grounds, 253 F.2d 27 (4th Cir. 1958) (stating that an
easement can be extinguished by an Act of God); see generally
Code §§ 28.2-1200; 28.2-1202 (dictating that in most
circumstances, when land is below a bay’s mean low-water mark
and thus is on the bed of that bay, it is property of the
Commonwealth).
Conclusion
Accordingly, for the reasons stated, we reverse the
judgment of the circuit court and hold that the express
easement created by the 1936 deed has been extinguished.
Reversed and final judgment.
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