McNeil v. Kingrey

WHITING, J.,

delivered the opinion of the Court.

*402In this case, we decide whether the claimants of prescriptive rights of way over a rural dirt road near the City of Roanoke have borne their respective burdens of proof. In addition, we determine who bears the burden of showing not only the nature and character of a proposed change in the prescriptive use, but also that such change will cast no additional burden on the servient tract.

Otey L. Kingrey, T.R. Leslie, Juanita Long Kingrey, Hortense K. Shimchock, William M. Kingrey, Jr.,2 and Calvin W. Powers (the Kingreys), and Jimmy C. Preas, filed a bill of complaint against Rodney Ware McNeil, Executor and Trustee under the will of I.N. McNeil, to establish prescriptive easements in a dirt road on a 12-foot wide strip of land owned by McNeil in Roanoke County. The dirt road, used by McNeil’s predecessors to reach their property south of Virginia State Route 419 (formerly Route 119 or Starkey Road) (the state highway), extends south from the state highway for a distance of about 400 feet. The Kingreys now own 1.2 acres on the east side of the dirt road, and Preas owns .68 acres on the west side.

The trial court found that the Kingreys and Preas had proven their rights to such easements by clear and convincing evidence, and that they had the right to use the dirt road in the proposed commercial development of their properties. Therefore, the trial court enjoined McNeil from interfering with those rights. McNeil appeals.

Because the Kingreys and Preas prevailed in the trial court, we state the evidence in the light most favorable to them. Litchford v. Hancock, 232 Va. 496, 497, 352 S.E.2d 335, 336 (1987). The Kingreys’ house and curtilage, which abutted the state highway, were taken when the state highway was widened. Prior to its widening, they and their predecessors used the state highway as their means of access. In the rear of their original two-acre lot, however, they engaged in some agricultural activities, requiring access along the dirt road. Their evidence showed that, beginning at least in 1930 and up until 1972, they regularly and continuously used and maintained the dirt road with the knowledge but without the permission of its owner, Callie Campbell, under the belief that they had a right to do so. They ran vehicles over the dirt road two to three times a month to carry feed to their chick*403ens and hogs, twice a year to butcher hogs for themselves and others, twice a year to remove a hay crop, and two times annually thereafter to spray and harvest the apples from trees they planted to replace their haying activities. One of the Kingreys testified that they, a Mr. Warner, and “the Lyons boys,” who apparently also used the dirt road, and Campbell, maintained the dirt road by filling potholes and making other repairs any time they were needed, sometimes two or three times a year.

Preas’s .68-acre lot lies approximately 230 feet south of the state highway. This lot came from a larger tract of 2.014 acres which Gertrude Smithers York acquired through mesne conveyances from the Kingreys in 1924.

Vera York MacMackin, Gertrude York’s daughter, who lived in York’s house near the state highway, testified that the Yorks made use of the dirt road under the belief that they had a right to do so, with Campbell’s knowledge and without objection or permission. MacMackin indicated that, originally, the Yorks reached their house using a driveway abutting the state highway. After the state highway was widened, at a time not shown in the record, the Yorks had to travel up the first 30 feet of the dirt road to get to their new driveway, because the widening apparently required a cut and left a bank between the York property and the state highway. MacMackin remembered that from 1930 until 1951, her brother, Raymond York, helped “repair the road quite a bit” and that her grandfather and brother used it “whenever they wanted to.”

Albert Warner, who lived in the neighborhood from his birth in 1930 until 1955, said that “anybody used the road to play on that lived in the area,” presumably including the York children. Otey Kingrey testified that from 1930, the Yorks used the dirt road whenever they wanted to, just as everyone else did, and that Raymond York would walk or drive a vehicle on the dirt road in coming and going to mow the bank on the York’s side of the dirt road. None of the witnesses testified as to the frequency or regularity of such uses.

After Gertrude York sold her house and that portion of the lot adjoining the state highway in 1951, retaining what later became the Preas lot, MacMackin used the dirt road about twice a year until 1964 to see that the remaining .68-acre lot was mowed. She sold the lot to Albert and Girlie L. Childress in 1964. Thereafter, Mr. Childress kept a calf and planted a garden on the vacant lot. *404These activities required him to use the dirt road two to three times a week, until 1969 or 1970, when his leg was amputated. After that, Mr. Childress never went back on the property, and he and his wife sold it to Preas on October 20, 1972. Preas brought a mobile home onto the lot shortly thereafter. He or his tenants have occupied it and have used the dirt road as their means of access ever since.

None of the parties introduced any evidence as to the kind or quantity of the proposed commercial traffic upon the dirt road.

One who claims a prescriptive easement over the property of another has the burden of producing clear and convincing proof of each of the necessary elements thereof. Pettus v. Keeling, 232 Va. 483, 486, 352 S.E.2d 321, 324 (1987). Those elements are: exclusive, continuous, uninterrupted, adverse use of the roadway, under a claim of right, with the knowledge and acquiescence of the owners of the land over which it passes for a period of at least 20 years. Id. at 485, 352 S.E.2d at 323. Although a failure to show the origin of the use raises a presumption that the easement originated either adversely or by grant, the presumption only arises after proof that “a way has been thus used, openly, uninterruptedly, continuously and exclusively for a period of more than twenty years . . . .” Williams v. Green, 111 Va. 205, 207, 68 S.E. 253, 254 (1910). The extent of the prescriptive easement “is measured by the character of the use.” Pettus, 232 Va. at 490, 352 S.E.2d at 326.

The first issue in this case turns on whether the Kingreys and Preas have each introduced sufficient evidence to support the trial court’s finding that they and their respective predecessors have made continuous and uninterrupted use of the easements for the required number of years. The required continuity will depend on “the nature of the easement and the land it serves, as well as the character of the activity . . . .” Ward v. Harper, 234 Va. 68, 72, 360 S.E.2d 179, 182 (1987). Although the use need not be “daily, weekly, or even monthly,” in the case of seasonal operations on mountainous land in a remote area, id. at 72, 360 S.E.2d at 182, it nonetheless must “be of such frequency and continuity as to give reasonable notice to the landowner that [such a] right is being exercised against him,” 2 Minor on Real Property § 990, at 1274 (F. Ribble 2d ed. 1928). Therefore, the use must be more than sporadic and of an indefinite nature.

*405In our opinion, the Kingreys’ evidence is sufficient to justify the trial court’s finding that they had continuously and uninterruptedly used the dirt road for access to their land for agricultural purposes in a rural area for more than 20 years. Because the evidence is insufficient to support a finding that it was a prescriptive easement for anything but agricultural purposes, we find that the trial court erred in failing to limit the easement to those purposes. Our reasons are discussed later.

In contrast to the Kingreys’ evidence of use during the prescriptive period, we conclude, as a matter of law, that Preas’s evidence is insufficient to show that he and his predecessors, continuously and without interruption, used the portion of the dirt road beginning 30 feet south of the state highway for the required 20-year period. Although a fact finder could reasonably infer that the Yorks continuously used the first 30 feet to get to their house after the state highway was widened, there was no proof of when this use began. Because a claimant must establish when the prescriptive period began to run, Clatterbuck v. Clore, 130 Va. 113, 121, 107 S.E. 669, 672 (1921), Preas cannot rely upon this use to establish his easement.

In our opinion, the evidence of the Yorks’ use from 1926 until 1951, “anytime” they wanted to, and of their children playing in the dirt road, as well as of their assistance in repairing the dirt road and mowing their side of the adjacent bank, is insufficient to establish the necessary continuity to give Campbell, a rural landowner, notice that they were claiming a prescriptive right to use the dirt road. Preas showed the necessary continuity of use of the dirt road by Childress, his immediate predecessor in title, beginning in 1964, but it was only for a period of seven years at the most. Preas, however, may not tack his usage on to Childress’s period of use because that use had terminated at least 22 months before Preas acquired the lot. A new period of prescriptive use began when Preas and his tenants started to use the dirt road for access in 1972, but that has not continued for the required 20-year period. Therefore, the trial court erred in ruling that Preas had established a prescriptive easement over McNeil’s land and in enjoining McNeil’s interference therewith.

Noting that McNeil was using the dirt road for commercial vehicles and that the area had become commercial, the trial court also found that there was no evidence to show that “the additional traffic created by the commercial use [by the dominant owners] *406would overburden the roadway . . . .” We need not decide whether a prescriptive easement for agricultural purposes is sufficiently broad to include commercial activity, if it does not cast an additional burden on the servient tract.3 Assuming, but not deciding, that such a change of use may be made, we find that the trial court erred in two respects in placing the burden upon the servient owner to show that the proposed commercial use would have “overburdened” his land.

Apparently, we have not heretofore decided a case dealing with the burden of proof to show the nature, character, and consequences of a change in the use of a prescriptive easement. We have recognized that the proposed uses to be made of a prescriptive easement must be of the “same nature and character” as those exercised during the prescriptive period. Va. Hot Springs Co. v. Lowman, 126 Va. 424, 430, 101 S.E. 326, 328 (1919). We also said in the same decision that, if the proposed difference in use “is in degree only, and no additional burden is put upon the servient estate, then the new use is within the prescriptive use.” Id. The imposition of a prescriptive easement is the taking of a property right of the servient owner without payment of compensation. This is why we said that “the law is jealous of a claim to an easement.” Pettus, 232 Va. at 486-87, 352 S.E.2d at 324. Given these considerations, we are of opinion that one who claims a prescriptive easement has the burden of showing the “nature and character” of the proposed change of his use of the easement, that it is in degree only, and that it imposes no additional burden upon the servient estate.

As we have already noted, no evidence was introduced to show anything other than that the dominant owner was to make a commercial use of his property. There was no showing of its nature and character, or of what burden would have been placed upon the servient tract.

It makes no difference, in our opinion, that the servient owner was using the dirt road as a means of access to his property which was devoted to commercial purposes. The issue turns upon the type of use the dominant owner proposes, not the uses presently being made of the same road by the servient owner. Nor does it matter that the character of the surrounding area has *407changed from rural to commercial. Although that might be a consideration in dealing with a grant of a general easement, Savings Bank v. Raphael, 201 Va. 718, 723, 113 S.E.2d 683, 687 (1960), in our opinion, a change in the character of the surrounding area should not be a factor in deciding whether to further burden a servient owner’s land by an existing prescriptive easement. We recognized this by implication in our observation that the alternate use of a prescriptive easement should place “no additional burden” upon the servient estate. Va. Hot Springs, 126 Va. at 430, 101 S.E. at 328. For these reasons, we conclude that the trial court also erred in describing the issue as whether there was an “overburdening” of the servient tract. Id.

Accordingly, we will affirm the judgment of the trial court to the extent that it found that the Kingreys were entitled to a prescriptive easement over the dirt road for access for agricultural purposes to their property, and enjoined any interference therewith. We will reverse the judgment insofar as it found that the Kingreys were entitled to use the dirt road for commercial purposes and enjoined any interference with that use.

Finding that Preas has failed to prove his claim to a prescriptive easement, we will reverse the judgment in favor of Preas, and enter final judgment vacating the injunction against McNeil.

Affirmed in part, reversed in part, and final judgment.

Willie Belle Kingrey was substituted as a complainant after William’s death.

We find that we have not previously dealt with this issue. The courts of other jurisdictions are in conflict. For a collection of the cases, see Annotation, Extent of, and Permissible Variations in, Use of Prescriptive Easements of Way, 5 A.L.R.3d 439 (1966).