joins, concurring in part and dissenting in part.
I concur with so much of the majority opinion as concludes that the Kingreys established a prescriptive right to use the road in question. I disagree with the majority’s conclusion that Preas failed to establish a prescriptive right to use the disputed road. I further disagree with the majority’s conclusion concerning the present use to which the road may be put by those who have a prescriptive right to use that road.
This case was tried to a Chancellor who heard testimony ore tenus, who reviewed deeds concerning the property in question, and who viewed the property. The majority was required to view the evidence in the light most favorable to the prevailing parties, *408the Kingreys and Preas. However, in my opinion, though this rule of appellate review was announced by the majority, it was ignored.
Viewed in the light most favorable to the Kingreys and Preas, the evidence establishes the following: The road has existed since the early 1900s. It is of unknown origin. The Kingreys’ predecessors in interest used the road beginning in at least 1930 for any purpose they desired, including ingress and egress to their property, general visitation, bringing feed to hogs and chickens, bringing hogs to be butchered, tending to apple trees, collecting hay, picking berries which grew on a fence beside the road, bikeriding, and as a play area for children. There were no “keep off’ signs. There were no “private road” signs. The Kingreys helped maintain the road. They never asked permission to use the road. They used the road as they saw fit for a period in excess of twenty years.
Preas’ predecessors in interest were the Yorks and the Childresses. The Yorks owned the property from the early 1900s through 1964. The property was then conveyed to the Childresses who conveyed to Preas in 1972. Preas established that, for more than twenty years, the Yorks used the road as a means of ingress and egress to their property, for general visitation, and as a means to check on the condition of what the Yorks called their “back lots” — the land ultimately conveyed to Preas.
In deciding the question of the existence of prescriptive rights, the majority ignored the critical fact that the road was of unknown origin. We wrote in Williams v. Green, 111 Va. 205, 207, 68 S.E. 253, 254 (1910), that where a way has been
used, openly, uninterruptedly, continuously and exclusively for a period of more than twenty years, the origin of the way not being shown, there is a presumption of a right or grant from the long acquiescence of the party upon whose land the way is. This presumption of a grant or adverse right is with us prima facie merely, and may be rebutted.
(Emphasis added.) To rebut this presumption, the owner of the fee simple interest must prove that the use was by permission or license or that denials or objections to the use had been made under circumstances that negated use by right or grant. Id. at 207-08, 68 S.E. at 354.
*409Because the majority paid no attention to the uncontradicted evidence that no one knew how the road came into existence, and because it did not consider the rule stated in Williams, it did not give Preas the benefit of the presumption to which he was entitled. Had the Williams presumption been afforded to Preas, the majority would have had to conclude that Preas had established a prescriptive right to use the road because McNeil did not produce a shred of evidence to rebut the presumption. In my opinion, the trial court did not err when it ruled that Preas established a prescriptive right to use the road.
The second issue concerns the present day use to which the road may be put by those who have a prescriptive right to use the road. With regard to this second issue, the majority opinion decides questions never advanced by either party. In simpler terms, the majority decides the second issue on a basis created by the majority out of whole cloth. Had the majority decided the case presented by the appellant, it would have been compelled to reach the opposite conclusion concerning the use to which the road may now be put by the Kingreys and, in my view, Preas.
The second assignment of error, framed by McNeil, reads as follows:
The Appellees cannot expand their use of McNeil’s roadway from an occasional use for agricultural and residential purposes to a commercial use even if such prior occasional use established an easement by prescription.
The majority frames the second issue in the following terms: “In addition, we determined 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.” McNeil makes no complaint about where the burden of proof was placed by the trial court. The matter was never discussed at trial.
On brief, McNeil complained that even if the Kingreys and Preas had established a prescriptive right to use the road, the question remained “whether their use of the roadway can be expanded to uses other than those which created the easement.” McNeil contended on brief that the Chancellor permitted an expanded use of the road. The heart of McNeil’s contention is that because the dominant estate had been rezoned commercial, the *410scope of the use of the servient estate expanded, as a matter of law. The trial court rejected McNeil’s claim of expanded use as a matter of law. In my opinion, the trial court was correct.
All of the property, including the disputed road, had been rezoned commercial by the time of the trial. The Kingreys and Preas claimed they had a right to use the road to serve their property — which was once rural agricultural and is now commercial. The trial court agreed. It ruled that “the Plaintiffs propose to develop their respective tracts for commercial purposes, gaining access thereto over the McNeil Roadway and that said proposed uses will not overburden their aforesaid easement, said uses being differences in degree only from the uses heretofore made of said easement by Plaintiffs.”
The second issue has nothing to do with burdens of proof. The question is whether the trial court was correct in ruling that the use was not expanded beyond the scope of the original use because the proposed use differed in degree only from the original use, or whether McNeil is correct in saying that whenever the dominant estate changes from agricultural to commercial the servient estate is overburdened, as a matter of law.
We set forth the legal test in Va. Hot Springs Co. v. Lowman, 126 Va. 424, 430, 101 S.E. 326, 328 (1919). There we said that if a right of way depends solely upon the user, then the extent of the user is measured by the character of the user because the easement cannot be broader than the user and a right of way acquired for one purpose cannot be used for another. We wrote further that, “if the new use is in all respects of the same nature and character as the old, and the difference is in degree only, and no additional burden is put upon the servient estate, then the new use is within the prescriptive use.” Id.
Here, the evidence was that during the prescriptive period, the road was used by trucks, farm vehicles, cars, and bicycles for ingress and egress to the property owned by the Kingreys and their predecessors and owned by Preas and his predecessors. The Kingreys and Preas submit that during the prescriptive period, the road was used for general vehicular traffic. They submit further that they intend in the future to use the road for general vehicular traffic. In my opinion, the trial court properly concluded on these facts that there was no impermissible expansion of the user.
Because the majority framed the second issue in a manner not advanced by any party, it failed to address McNeil’s sole argu*411ment: that whenever the dominant estate changes in use, the servient estate necessarily changes in use. Had this argument been addressed, it should have been rejected because it is wrong.
Professor Minor makes clear that in considering whether a present use is within the scope of the prescriptive user, the focus is upon the use to which the servient estate is put: “The extent and mode of enjoyment of an easement by prescription depends upon the extent of the user during the prescriptive period and the customary mode of enjoyment thereof during that period.” 1 R. Minor, Minor On Real Property (2d ed. 1928) at 143 (emphasis in original).
Further, in a discussion of extinguishing easements, Minor indicates the limited way in which a change in the dominant estate affects the servient estate: “[I]f the easement arises by prescription, a change in the dominant estate calling for a burden upon the servient land exceeding that devolving upon it by its customary use during the prescriptive period, if the increased use is inseparable from the former use, will operate an extinguishment of the easement.” Id. at 150 (emphasis in original). This quote suggests that only where the change in the dominant estate increases the burden on the servient estate is there improper use. Such a matter cannot be resolved on the basis of a per se rule. Facts are required. In this case, those facts were found against McNeil.
Other treatise writers also indicate that a per se rule is out of place in this area of law. In 3 R. Powell, Powell on Real Property ¶ 416 (1987), the author wrote as follows:
Since . . . no use can ever be exactly duplicated, some variation between the use by which a prescriptive easement was created and the uses made under it after its creation is inevitable. The problem is to ascertain the limits of permissible variation . . . . [T]he general principle applicable is that a use made under a prescriptive easement must be consistent with the general pattern formed by the use by which the easement was created. The only variations permitted are those which are consistent with that pattern. Uses which conform to it must have characteristics sufficiently resembling those of the adverse use by which an easement was created so that they may fairly be described as being the same use. In determining whether a specific use is within the pattern of the establishing uses, courts consider (1) their simi*412larity or dissimilarity of purpose; (2) their respective physical attributes; and (3) the relative burden caused by them upon the servient parcel.
(Emphasis added.) In this case, again, these factors when applied to the facts, show the correctness of the trial court’s disposition of this issue.
I would hold that Preas established prescriptive rights along with the Kingreys and that the Kingreys and Preas can continue to use the road for general vehicular traffic to and from their property.