Horn v. Webb

PRESENT: All the Justices

KEVIN J. HORN, ET AL.
OPINION BY
v. Record No. 220230 JUSTICE STEPHEN R. McCULLOUGH
FEBRUARY 9, 2023
JAMES WEBB, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael F. Devine, Judge

In this appeal we examine whether the circuit court correctly rejected Kevin and

Meredith Horn’s claim of a prescriptive easement over the property of James and Hong Webb

and whether the circuit court properly awarded punitive damages. We conclude that the

evidence supports the circuit court’s rejection of a claimed prescriptive easement by the Horns to

store small watercraft on the Webbs’ land. We reverse the judgment below, however, in

connection with the claim of a prescriptive easement to dock a boat on the Webbs’ property.

Even if we assume that the original docking was permissive, the sale of the land vitiated the

permission granted by the original owners. No evidence indicates any of the subsequent owners

granted any kind of permission to dock a boat on their land. Finally, we reverse the award of

punitive damages because nothing in the record establishes malice on the part of the Horns in

filing their own lawsuit to vindicate their property rights.

BACKGROUND

I. THE ORIGINAL NEIGHBORS CREATE AN EASEMENT AND DOCK A PONTOON BOAT ON
LOT 612.

Lake Barcroft is a lakefront community in Fairfax County. This litigation centers on

three Lots of that community, Lots 612, and 613 and 615. Lot 612 is a waterfront lot, whereas

Lots 613 and 615 are landlocked. In 1966, the Fidels owned Lot 612, the Robinsons owned Lot

613, and the Chappells owned Lot 615. The Fidels granted a 20-foot-wide easement over Lot
612 to the owners of Lots 613 and 615 for the purpose of access to and from the lake. The Fidels

reserved the right to use this easement as well.

The 1966 Easement document includes a number of prefatory “whereas” clauses, or

recitals. The final such clause states the following:

WHEREAS [the owners of Lots 613 and 615] have agreed to build
a retaining wall along the shore of Lake Barcroft within the shaded
area as shown on the attached plat on Lot 612 to be used by all the
parties hereto, together with easements granted hereby to serve [the
owners of Lot 615] over Lot 613 and Lot 612, and an easement to
serve the [owners of Lot 613] over Lot 612 in the shaded area which
is twenty (20) feet wide.

App. 384.

After recording this easement, the Chappells and the Robinsons built cement steps

leading down to the lake, as well as a retaining wall along the shore of the lake, on Lot 612. At

the same time, the Chappells and Robinsons also added a short light pole with electrical outlets.

Once they completed the retaining wall, the Robinsons tied a pontoon boat along the

retaining wall. In April 1976, the Robinsons and the Chappells jointly purchased a large electric

pontoon boat and kept the boat tied to the retaining wall on Lot 612. The boat purchased in 1976

was docked in that same spot until 2015, when it sank. On the same day this boat was towed

away, the Horns replaced the boat with another pontoon boat that has remained in that spot since

that time.

The Fidels sold Lot 612 to the Keelers in 1970. The Keelers sold the property to the

Crains in August 1976. The Chappells sold Lot 615 to the Horns in 2005. The Robinsons sold

Lot 613 to the Rustgis in 2013.

There is no evidence the Keelers or the Crains granted permission to anyone to tie the

pontoon boat to the retaining wall on their property at any time during their ownership of Lot

2
612. The evidence did establish that the neighbors were on friendly terms and held convivial

gatherings on the Fourth of July and on other occasions.

With respect to the smaller watercraft, the Horns presented evidence that some smaller

watercraft, such as canoes and skiffs, had been stored on Lot 612 for years. Mrs. Horn testified

that ever since they purchased the land in 2005, the watercraft were stored on the same spot on

Lot 612. A former neighbor, Ira Kirschbaum, also testified concerning the presence of small

watercraft on Lot 612. However, aerial photographs from 1972, 1976, 1990, 1997, 2007, and

2009 did not show watercraft stored on Lot 612 in the manner Mr. Kirschbaum described.

II. THE WEBBS ACQUIRE LOT 612 AND SEEK REMOVAL OF ALL THE BOATS.

The Webbs purchased Lot 612 in 2017. They demolished the original house and built a

new one. After they moved in, the Webbs sent a letter to the Horns and Mr. Rustgi asserting that

the 1966 Easement did not grant the right to dock a boat or store watercraft on the property. The

Webbs requested that the Horns and Mr. Rustgi abide by the terms of the easement. The Horns

and Mr. Rustgi refused, insisting that they held a prescriptive easement to store the small

watercraft and dock the pontoon boat.

III. ROUND 1: THE RUSTGI V. WEBB LITIGATION.

In July 2019, Mr. Rustgi filed his complaint in Rustgi v. Webb, CL-2019-10190, seeking

a declaratory judgment that he had the right to dock a boat at the retaining wall based on either

the 1966 easement or a prescriptive easement based on the prior owners’ usage over many

decades. The Webbs counterclaimed for trespass and nuisance and sought declaratory relief.

The Horns were not parties to that litigation. The court (a different judge presiding) ruled in

favor of the Webbs and against Mr. Rustgi. Following the ruling, Mr. Rustgi conveyed his

one-half interest in the pontoon boat to the Horns for one dollar.

3
 IV. ROUND 2: THE HORN V. WEBB LITIGATION.

Following their success in the litigation against Mr. Rustgi, the Webbs demanded that the

Horns remove the pontoon boat as well as the watercraft stored on land. The Horns refused and

again asserted their right to continue these uses. The Webbs filed a complaint against the Horns,

alleging trespass and nuisance and seeking a declaratory judgment of their rights. The Horns

counterclaimed that they had acquired a prescriptive easement to dock the boat and to store the

smaller watercraft.

The Webbs filed a plea in bar to the Horns’ counterclaims, alleging that the Horns were

in privity with Rustgi in the prior litigation and were bound by the court’s adverse resolution of

the claim of a prescriptive easement in that case. The circuit court overruled the plea in bar.

Following a bench trial, the circuit court ruled in favor of the Webbs, awarding them

compensatory damages in the amount of $11,550 and punitive damages in the amount of

$45,000. The compensatory damages award was divided as follows: $3,300 in damages for the

storing of the watercraft, and $8,250 for the trespassory docking of the pontoon boat. The circuit

court concluded as follows: (1) with respect to the small watercraft, the Horns had failed to

establish a prescriptive easement because the evidence did not show that their use was

continuous; (2) with respect to the pontoon boat, the court concluded that the use began with

permission and that the Horns did not offer evidence that they or the Chappells ever asserted a

hostile claim to the use. The fact that the lot was sold did not change this conclusion. Finally,

the court awarded punitive damages on the basis that once the Rustgi case was resolved

adversely to Mr. Rustgi, with the court holding in that case that there was no prescriptive

easement, the Horns’ persistence in claiming a prescriptive easement was inexcusable and

justified punitive damages.

4
 ANALYSIS

“The claimant of a prescriptive easement . . . must prove by clear and convincing

evidence that ‘the claimant’s use of the [property] in question was adverse, under a claim of

right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the

owner of the land over which it passes, and that the use has continued for at least 20 years.’”

Amstutz v. Everett Jones Lumber Corp., 268 Va. 551, 559 (2004) (quoting Martin v. Moore, 263

Va. 640, 645 (2002)). Clear and convincing evidence “is intermediate proof, more than a mere

preponderance but less than proof beyond a reasonable doubt.” Id. (quoting Oberbroeckling v.

Lyle, 234 Va. 373, 379 (1987)).

On appeal, we view the facts in the light most favorable to the party who prevailed

below. Johnson v. DeBusk Farm, Inc., 272 Va. 726, 728 (2006). This Court will not disturb a

circuit court’s judgment in a bench trial “unless it is plainly wrong or without evidence to

support it.” Hafner v. Hansen, 279 Va. 558, 562 (2010).

I. THE EVIDENCE SUPPORTS THE JUDGMENT OF THE CIRCUIT COURT THAT THE SMALL
WATERCRAFT WERE NOT CONTINUOUSLY STORED ON LOT 612.

To prove a claim of a prescriptive easement, the claimant must establish that the adverse

use was “continuous” for the required period, which, in Virginia, is 20 years. Amstutz, 268 Va.

at 559. With respect to the small watercraft stored on the Webbs’ land, the evidence was in

conflict. Meredith Horn testified that the watercraft were stored in the same spot since 2005 –

however, her testimony was insufficient to establish the requisite 20-year period. A former

neighbor testified that the Chappells stored smaller watercraft on Lot 612. The circuit court

found his testimony equivocal and in conflict with aerial photographs. The circuit court

carefully assessed the evidence and made credibility findings. It concluded that the Horns had

not established a prescriptive easement to store the watercraft on the Webbs’ land. The

5
evidence, viewed in the light most favorable to the prevailing parties, supports the circuit court’s

determination. Accordingly, we affirm the circuit court’s holding that the Horns did not meet

their burden of proving the existence of a prescriptive easement to store small watercraft on the

Webbs’ land.

II. THE HORNS ESTABLISHED THE EXISTENCE OF A PRESCRIPTIVE EASEMENT TO DOCK A
BOAT.

The circuit court found, and the record amply supports, the conclusion that the docking of

the pontoon boat was “open, visible, continuous and unmolested since 1966.”1

The Webbs contend that any use was not exclusive because both the Horns and their

predecessors in title claim the prescriptive easement, as well as the Rustgis and their

predecessors in title. We disagree. Both the Horns and Mr. Rustgi could claim a prescriptive

easement. See Nelson v. Davis, 262 Va. 230, 236 (2001) (“[W]hen each user independently

asserts his right to enjoy the way for himself, such use is exclusive even though others assert

similar rights for themselves.” (quoting Pettus v. Keeling, 232 Va. 483, 486 (1987))).

The principal question before the circuit court was whether the docking of the boat was

“hostile.” A claimant “is in hostile possession if his possession is under a claim of right and

adverse to the right of the true owner.” Grappo v. Blanks, 241 Va. 58, 62 (1991). “When used

in the context of adverse possession, the terms claim of right, claim of title, and claim of

ownership are synonymous. They mean a possessor’s intention to appropriate and use the land

as his own to the exclusion of all others.” Id. The claimant need not make a hostile intention

express. Id. A claim of right “may be implied by a claimant’s conduct. Actual occupation, use,

1
The fact that the boat sank in 2015 is immaterial for two reasons. First, by the time the
boat sank, the period of prescription had already run and, moreover, the boat was immediately
replaced.

6
and improvement of the property by the claimant, as if he were in fact the owner, is conduct that

can prove a claim of right.” Id. (citation omitted). In other words, hostility can be shown when

the prescriptive easement claimant treated the property as an owner would.

Permission to occupy the land negates hostility. “A prescriptive right will not arise from

the permission of the owner. It has been repeatedly held that the use of the land of another for

any length of time, merely by permission, will not ripen into title.” Rives v. Gooch, 157 Va. 661,

668 (1932). “When a use is open, visible, and continuous throughout the required prescriptive

period, the claimant is entitled to a presumption that the use arose adversely or under a claim of

right.” Hafner v. Hansen, 279 Va. 558, 563 (2010). The burden is on the owner of the servient

estate, in this instance the Webbs, to rebut “this presumption by showing that the use was

permissive, and not under claim of right.” Johnson, 272 Va. at 730 (quoting Pettus, 232 Va. at

485).

First, the Horns established a use that was open, visible, and continuous throughout the

required prescriptive period. Therefore, they were “entitled to a presumption that the use arose

adversely or under a claim of right.” Hafner, 279 Va. at 563. The burden then shifted to the

Webbs to show that the use was permissive. The Webbs offered no evidence of permission. At

best, the Webbs offered circumstantial evidence of a permission to dock the boat that existed

between the Fidels and the Chappells and the Robinsons. 2 No witnesses or documents

established that one of the Webbs’ predecessors in title after the Fidels granted permission.

2
The circuit court concluded that the sixth “whereas” recital mentions an agreement and
deduced from the evidence that this agreement must have been to dock the boat. The text of the
recital says nothing about a boat, and no witnesses or documents established that the Fidels
granted the Chappells and the Robinsons permission to dock their boat. We need not resolve the
question of whether the evidence supports the finding of the circuit court that the unspecified
agreement mentioned in the recital was to dock a boat.

7
 Assuming the existence of an agreement between the Fidels, Chappells and Robinsons

allowing the Chappells and Robinsons to dock a pontoon boat, the Fidels’ permission would

have ended when they sold the lot. The circuit court held that once permission is granted, it is

presumed to continue indefinitely, even when the person who granted permission sells the land.

We disagree. Permission is personal to the grantor:

A license has been described as a right, given by some competent
authority[,] to do an act which without such authority would be
illegal, a tort, or a trespass. A license is personal between the
licensor and the licensee and cannot be assigned.

Bunn v. Offutt, 216 Va. 681, 683 (1976) (citations and internal quotation marks omitted).

Permission does not extend beyond the ownership of the person who granted permission.

Therefore, a permissive use terminates when the owner who granted permission sells the

property. Johnson, 272 Va. at 730 (“Even if this use were permissive, acquisition of the property

by [another party] . . . constituted a ‘change in circumstances and conditions’ so that the use

would not have continued to be permissive.” (quoting Eagle Lodge, Inc. v. Hofmeyer, 193 Va.

864, 880 (1952))).3

3
See also Devlin v. The Phoenix, Inc., 471 So. 2d 93, 95 (Fla. Dist. Ct. App. 1985) (“A
sale or conveyance of property to which a license has been granted effectively revokes the
license.”); Schwenker v. Sagers, 230 N.W.2d 525, 528 (Iowa 1975) (“We have held one manner
in which a permissive use becomes adverse is by transfer of the servient property.”); Burkhart v.
Zimmerman, 214 N.W. 406, 407 (Mich. 1927) (“[A] conveyance of the land by the licensor ipso
facto operates as a revocation of a license previously granted.”); Kruvant v. 12-22 Woodland
Ave. Corp., 350 A.2d 102, 107 (N.J. Super. Ct. Law Div. 1975) (“[A] person who is using
property by permission may become an adverse user by subsequent events where the servient
estate is conveyed away.”); Foley v. Lyons, 125 A.2d 247, 249 (R.I. 1956) (“It is admitted that
[the original use] was permissive and by oral license. It therefore could not ripen into adverse
use[] no matter how long continued provided such use[] was referable to the permission granted.
However, this oral license was revoked by [a conveyance of the servient lot] . . . . After such
conveyance complainants’ use could mature into an easement if all the necessary elements were
present and proved by clear and positive evidence.” (citations omitted)).

8
 Assuming without deciding that the agreement mentioned in the sixth “whereas” clause

of the easement granted permission from the Fidels to the Chappells and Robinsons to dock a

boat on the Fidels’ lot, the Fidels’ permission ended when they sold the lot in 1970. The Webbs

bore the burden of proving permission. No evidence whatsoever establishes that the docking of

the boat was with permission from any of the successors in title to the Fidels. Therefore, the

Horns established all of the elements for a prescriptive easement from 1976 forward.

The fact that prior owners of these lots were on friendly terms does not establish a

permissive use. Failure to object is acquiescence. Acquiescence is not the same as granting

permission. Clark v. Reynolds, 125 Va. 626, 630-31 (1919). In Davis v. Wilkinson, 140 Va. 672,

679 (1924), we observed that “[f]ailure to object to the use of the way is very often stated by

witnesses as consent to its use, yet such consent is mere acquiescence, and acquiescence is one of

the elements upon which the ripening of the use into a legal right rests.” A failure to object is

not the same as granting permission. In the final analysis, “[t]here is no just foundation in the

evidence for any contention that the use . . . was in a legal sense by permission or under a

license.” Clark, 125 Va. at 630-31.

Again assuming that the Fidels had some kind of agreement with the Chappells and the

Robinsons that permitted the Chappells and Robinsons to dock their pontoon boat on the Fidels’

lot, once the Fidels sold their lot, the Fidels’ permission ended. The Horns established their right

to a prescriptive easement to dock a boat on the Webbs’ lot. We reverse the circuit court’s

contrary holding.

III. PUNITIVE DAMAGES WERE NOT JUSTIFIED.

“[P]unitive or exemplary damages are allowable only where there is misconduct or actual

malice, or such recklessness or negligence as to evince a conscious disregard of the rights of

9
others.” A.H. v. Church of God in Christ, Inc., 297 Va. 604, 636 (2019) (citation omitted). “We

have repeatedly stated that an award of punitive damages is not favored generally because

punitive damages are in the nature of a penalty and should be awarded only in cases involving

the most egregious conduct.” Bowers v. Westvaco Corp., 244 Va. 139, 150 (1992). Where there

is no “fraud, malice, oppression, or other special motives of aggravation, damages by way of

punishment cannot be awarded, and compensatory damages only are permissible.” A.H., 297

Va. at 637 (quoting Xspedius Mgmt. Co. of Va., v. Stephan, 269 Va. 421, 425 (2005)).

On appeal, this Court will “make an independent review of the record to determine

whether it supports a finding of actual malice or wantonness by clear and convincing evidence.”

Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48, 59 (2001).

With respect to the claim of a prescriptive easement to dock the pontoon boat, the Horns

are the prevailing parties. Consequently, no damages of any kind can be awarded against them

as to that component of the case. Even with respect to the Horns’ claim of a right to leave

smaller watercraft on the Webbs’ land, the record does not support an award of punitive

damages. The Horns presented evidence from a neighbor to support their claim of a prescriptive

easement. Although the circuit court credited the photographic evidence rather than the

testimony of the Horns’ former neighbor and ruled against them, that does not render the Horns’

claim malicious.

The circuit court based its judgment on the fact that the Horns were aware of the prior

lawsuit involving Mr. Rustgi and the Webbs. The circuit court reasoned that despite their

knowledge that the Webbs prevailed in that earlier litigation, the Horns nevertheless pressed

ahead with their own claim of a prescriptive easement. The Horns, however, were not parties to

the prior lawsuit. The Rustgi lawsuit adjudicated Mr. Rustgi’s rights, not the Horns’ rights. The

10
circuit court in this case ruled that Mr. Rustgi and the Horns were not in privity. That decision

was not challenged and is now the law of the case. The fact that the Horns were pressing the

same claim of a prescriptive easement with the same or similar evidence does not render their

assertions of right malicious. To state the obvious, different lawyers can approach the same

claims differently, witnesses can be more or less persuasive in separate trials, and different

factfinders will vary in their appreciation of the persuasiveness of the evidence presented. The

fact that a prior lawsuit pressing a specific claim ended in defeat does not render malicious the

filing of a separate lawsuit by a different party, even when that lawsuit presses what is essentially

the same claim. Litigants who are not bound by a prior case are entitled to seek the vindication

of their own rights. For all these reasons, we vacate the award of punitive damages. 4

CONCLUSION

For the foregoing reasons, we will affirm in part and reverse in part the judgment of the

circuit court. We will affirm the circuit court’s holding that the Horns do not have a prescriptive

easement to store small watercraft such as canoes on the Webbs’ land, and we affirm as well the

award of compensatory damages on that point. We will reverse the circuit court’s conclusion

that the Horns failed to establish the existence of a prescriptive easement to dock a boat on the

Webbs’ land and to run electrical wires to keep the boat charged. Accordingly, we vacate the

award of compensatory damages awarded in connection with that claim. The Horns established

the existence of a prescriptive easement to dock a boat as well as to maintain the electrical wiring

4
We have also reviewed the statements Mr. Horn made to the Webbs in correspondence,
threatening criminal charges for trespass and stating that interfering with the Horns’ rights would
garner “plenty of unwanted attention.” The trial court did not rely on these statements, and our
independent review of the record leads us to conclude that they do not justify an award of
punitive damages.

11
and outlet to charge the boat. Finally, we will reverse and vacate the award of punitive damages.

We remand the case for entry of an order consistent with the judgment of this Court.

Reversed in part,
affirmed in part,
and remanded.

12