Amstutz v. Everett Jones Lumber Corp.

Present: All the Justices

MARY ANN E. AMSTUTZ, ET AL.

v. Record No. 040134 OPINION BY JUSTICE CYNTHIA D. KINSER
November 5, 2004
EVERETT JONES LUMBER CORPORATION, ET AL.

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge

The dispositive issue in this case is whether there

was credible evidence to support the circuit court’s

finding, under the clear and convincing evidentiary

standard, of continuous use of a road sufficient to

establish a prescriptive easement for purposes of forestry,

timbering, or logging. Finding each claimant’s use of the

road insufficient to give notice to the servient landowner

that an adverse property right was being exercised, we will

reverse the judgment of the circuit court granting a

prescriptive easement.

I. PRIOR PROCEEDINGS

Everett Jones Lumber Corporation (“Jones”) filed a

bill of complaint to enjoin Mary Ann E. and David E.

Amstutz1 (“Amstutz”) from interfering with Jones’ use of a

portion of a roadway known as “Brightwell Road” located in

Spotsylvania County. The disputed section of Brightwell

1
David E. Amstutz was not originally named as a
defendant but was later added as a necessary party to the
proceedings.
Road runs in an easterly direction from a parcel of real

estate owned by Jones across property owned by Amstutz to

State Route 612.2 Jones alleged that Amstutz blocked the

road by erecting a fence, placing obstacles across the

roadway, and verbally denying permission to use the

roadway, thereby preventing Jones from accessing its

property from State Route 612.

Amstutz subsequently filed a bill of complaint against

Elizabeth L. Thomas (“Thomas”) seeking declaratory judgment

as to whether Thomas had a right to use the same disputed

section of Brightwell Road to access from State Route 612 a

parcel of real estate owned by Thomas.3 By a decree of

reference, the circuit court “combined” the two suits and

referred them to a commissioner in chancery. The issues

before the commissioner were whether Jones and/or Thomas

enjoyed an easement for ingress and egress over the Amstutz

property to their respective properties and if so, the

nature, extent, and description of the easement.

2
The portion of Brightwell Road not in dispute in this
appeal runs in a southwesterly direction across the Jones
parcel and other tracts of real estate.
3
Initially, only Mary Ann E. Amstutz filed the bill of
complaint against Thomas. David E. Amstutz was later added
as a party plaintiff.

2
 In his report, issued after hearing evidence ore tenus

and viewing the disputed roadway, the commissioner in

chancery found that both Jones’ and Thomas’ use of the road

had been uninterrupted for more than twenty years. The

commissioner further concluded that the use had been

continuous in that each one had utilized the “road over the

Amstutz parcel when needed” to tend and harvest their

respective tracts of timber. Finally, the commissioner

found that Jones’ and Thomas’ use of the road had been

open, visible, obvious, exclusive as to each one, adverse,

and under a claim of right. Based on his view of the

easement, the commissioner described the roadway as

“obvious, with some significant shoulder banking,

suggesting age.” He noted that it was “a dirt road . . .

located in a rural area that has not seen residential or

commercial development.”

Regarding the width of the easement, the commissioner

in chancery concluded that it was sufficient to allow one

lane of travel by a tractor trailer hauling timber logs,

but that the “specific width varie[d] and [was] greater at

curves than on straightaways.” Although testimony about

the width of the easement varied, the commissioner

concluded “that 15 feet [was] the general width, but that

[it] expand[ed] or fan[ned] out to a sufficiently wider

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dimensions [sic] at the intersection with [State] Route 612

and at curves to permit the passage of timber harvest

trucks.”

Amstutz filed exceptions to the report by the

commissioner in chancery. After considering those

exceptions, the circuit court, in an opinion letter,

approved and confirmed the commissioner’s report except in

one respect: the court added footage to the width of the

easement in order to accommodate equipment used to harvest

timber. In its final order, the circuit court enjoined

Amstutz and their successors from “interfering with the use

for agricultural purposes to-wit: forestry, timbering or

logging purposes” by Jones and Thomas and “their respective

successors in title, of the roadway crossing the property

of Amstutz, . . . which roadway is established hereby as a

prescriptive easement appurtenant to the properties” of

Jones and Thomas, “the width of said roadway being

clarified to be fifteen (15) feet together with temporary

turns at the bends in the road and at the entrance of the

public road sufficient to accommodate equipment appropriate

for the removal of timber, not to exceed twenty (20)

additional feet.” Thereafter, Amstutz filed this appeal.

II. FACTS

A. AMSTUTZ PROPERTY

4
 In 2000, Amstutz acquired approximately 29.77 acres of

real estate that border State Route 612 in Spotsylvania

County.4 The parcel is the acreage through which the

disputed section of Brightwell Road passes and lies

between the Jones and Thomas parcels and the public road.

According to Amstutz’s estimation, the length of the road

from State Route 612 across the 29.77-acre parcel to the

Jones property is 1100 feet.

During the period from 1951 until 1999, the Amstutz

property was owned by an entity referred to as

“Chesapeake”.5 An individual who had managed Chesapeake’s

land from 1983 until 1995 testified the company had always

assumed that there was a “prescriptive” right-of-way across

Chesapeake’s property from State Route 612 for the benefit

of the parcels situated to the west. According to the land

manager, the road now in dispute was obvious upon visual

inspection and was the only access to both the Jones and

Thomas tracts. Although he never saw anyone using the

4
Prior to this purchase, Amstutz already owned a
larger tract of property adjacent to the 29.77 acres.
5
Various exhibits in this case reference Chesapeake
Forest Products Company, The Chesapeake Corporation of
Virginia, The Chesapeake Corporation, Chesapeake
Corporation, and Chesapeake Forest Products Company, LLC.
The relationship between those entities is not relevant to
this appeal. They will be referred to collectively as
Chesapeake, as did the witnesses.

5
road, he observed evidence of “truck traffic” because “the

road was rutted.” At one point while Chesapeake owned the

property, a gate was installed on the road to keep people

from “dumping on the property.” This was done with Jones’

permission, and Jones was given a key to the gate.

B. JONES PROPERTY

Jones owns approximately 63 acres of real estate that

it acquired by deed in 1952. The deed described the tract

as “lying on both sides of Brightwell [R]oad.” The

property lies adjacent to and south of the Thomas parcel,

and adjacent to and west of the Amstutz property over which

the disputed roadway traverses.

The president of Jones testified that, since the

acquisition of its property, the company has used the road

in question from time to time “[f]or the purpose of

inspecting the timber, checking lines, disease control —

bugs,” and determining when to cut the timber and reforest

the area. The only access to the Jones property was via

the road across the property now owned by Amstutz,

according to Jones’ president. The company had never been

denied use of the roadway until Amstutz blocked the route.

The timber on the Jones property was harvested in the

late 1950s or early 1960s. Daniel F. Mastin, Sr., age 76,

testified that he had harvested timber during the same time

6
period but on property located adjacent to the Jones

property. Mastin had been familiar with the disputed

roadway all his life and had used it when he cut timber on

the adjacent property. However, he stated that, during his

timber harvest, only empty logging trucks exited via the

road over the property now owned by Amstutz while the

loaded trucks exited in the opposite direction on

Brightwell Road.

Several other witnesses testified as to their use of

the disputed road. One had traveled over the roadway to

reach the Jones property in 1973 for the purpose of

conducting a land and timber appraisal for the company.

Others had accessed the Jones property via the disputed

road at various times during the last 30 years in order to

inspect growing timber, prepare a timber management plan,

or “flag” the property lines. In fact, records from the

Virginia Division of Forestry showed that seed trees had

been marked on the Jones property in 1956. However, a

natural resource specialist who had worked on both the

Jones and Thomas parcels testified that he had permission

from Chesapeake’s foresters to travel across Chesapeake’s

land (now owned by Amstutz) when he had inspected the Jones

tract. Other testimony also revealed that hunters had used

the road for many years. The witnesses generally agreed

7
that the only access to the Jones property was by way of

the disputed road across the Amstutz property.

C. THOMAS PROPERTY

Thomas owns approximately 51 acres of real estate

situated north of the Jones parcel and west of the Amstutz

property. The Thomas tract does not abut Brightwell Road

because a portion of the Jones tract lies between it and

the road. However, the president of Jones acknowledged

that Thomas has the “right to come over [the Jones

property] for ingress and egress.” As with Jones, the

issue is whether Thomas has an easement over that portion

of Brightwell Road that traverses the Amstutz property.

Thomas acquired her property in approximately 1957 as

an investment. The intent was to replant the area and

allow a stand of timber to grow. After the replanting,

Thomas received periodic reports from a forester about the

timber growth. Thomas’ husband also inspected the timber

about twice a year. Thomas was not aware of any access to

her property except by traveling over the disputed portion

of Brightwell Road. Thomas never asked permission from

anyone to use the road.

Starting in 1994, Charles T. Wright, a consultant

forester, used the disputed road to access the Thomas

property for the purpose of locating and marking the

8
boundary lines, cruising the timber, conducting a sale of

the timber, monitoring the timber harvest, and coordinating

the reforestation of the Thomas property. Wright testified

that, when he first traveled over the disputed road, “it

had several mud holes” with “fresh ruts in [them],”

indicating vehicular traffic on the roadway. There were no

trees or shrubs growing in the road. Wright further stated

that, during the timber harvest on the Thomas property, the

road was improved and equipment used to harvest the timber

traveled over the road. The logger who actually cut the

timber stated that trucks loaded with logs exited the

Thomas property via the disputed road.

Before the Thomas timber was harvested, an agreement

was entered into between Thomas and Chesapeake (the owner

of the Amstutz property at that time), which granted a

temporary right-of-way over the now disputed portion of

Brightwell Road to State Route 612. The stated purpose of

the right-of-way was to transport timber from and to

reforest the Thomas property. However, Wright testified

that, at the time the agreement was made, no one voiced any

objection to using the road; the agreement was mainly to

provide for maintenance of the road during the timber

harvest on the Thomas parcel. Chesapeake’s former land

9
manager also agreed that the purpose of the agreement was

for road maintenance.

III. ANALYSIS

A. STANDARD OF REVIEW

When a circuit court approves a report by a

commissioner in chancery who heard evidence ore tenus, we

will affirm the court’s decree unless it is plainly wrong

or without evidence to support it. Shepherd v. Davis, 265

Va. 108, 117, 574 S.E.2d 514, 519 (2003); Snyder Plaza

Properties, Inc. v. Adams Outdoor Advertising, Inc., 259

Va. 635, 641, 528 S.E.2d 452, 456 (2000); Ward v. Harper,

234 Va. 68, 70, 360 S.E.2d 179, 181 (1987). Thus, we look

at the commissioner’s conclusions, as approved by the

circuit court, and determine whether the conclusions are

supported by credible evidence. Chaney v. Haynes, 250 Va.

155, 158, 458 S.E.2d 451, 453 (1995).

B. PRESCRIPTIVE EASEMENT

An easement is “ ‘a privilege without profit, which

the owner of one tenement has a right to enjoy in respect

of that tenement in or over the tenement of another person;

by reason whereof the latter is obliged to suffer, or

refrain from doing something on his own tenement for the

advantage of the former.’ ” Stevenson v. Wallace, 68 Va.

(27 Gratt.) 77, 87 (1876) (quoting Goddard on Easements,

10
page 2); accord Brown v. Haley, 233 Va. 210, 216, 355

S.E.2d 563, 567-68 (1987); Bunn v. Offutt, 216 Va. 681,

684, 222 S.E.2d 522, 525 (1976). The claimant of a

prescriptive easement over the property of another must

prove by clear and convincing evidence that “the claimant’s

use of the roadway 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.”6 Martin v. Moore, 263 Va. 640, 645, 561

S.E.2d 672, 675 (2002); accord McNeil v. Kingrey, 237 Va.

400, 404, 377 S.E.2d 430, 432 (1989); Pettus v. Keeling,

232 Va. 483, 485-87, 352 S.E.2d 321, 323-24 (1987). As we

have previously explained, clear and convincing evidence is

that degree of proof which produces in the mind
of the trier of facts a firm belief or conviction
upon the allegations sought to be established.
It is intermediate proof, more than a mere
preponderance but less than proof beyond a
reasonable doubt. It does not mean clear and
unequivocal.

Oberbroeckling v. Lyle, 234 Va. 373, 379, 362 S.E.2d 682,

685 (1987); accord Fred C. Walker Agency v. Lucas, 215 Va.

535, 540-41, 211 S.E.2d 88, 92 (1975). The dispositive

issue in this appeal is whether there was “credible

6
In this case, Jones and Thomas each had to establish,
by clear and convincing evidence, the elements of a

11
evidence” to support the circuit court’s finding that both

Jones and Thomas had established by clear and convincing

evidence continuous use of the road in question. Chaney,

250 Va. at 158, 458 S.E.2d at 453.

With regard to the requirement of continuous use,

Amstutz argues that there was no evidence that the disputed

road was ever used to haul logs from either the Jones or

Thomas parcels to State Route 612, except with the express

permission of Amstutz’s predecessor in title when the

Thomas timber was harvested. Thus, according to Amstutz,

the infrequent use of the disputed road to access the

Thomas and Jones parcels for purposes of checking timber

growth, preparing reports, and marking boundaries was not

sufficiently continuous as to give reasonable notice of an

adverse claim being exercised against the owner of the

servient estate.

Jones and Thomas counter that the road was used “as

needed” to facilitate the growth, management, and harvest

of timber on their respective parcels. Jones points to the

fact that 11 witnesses testified that there was no access

to either parcel other than by traveling on the road in

question and argues that the road was therefore necessarily

used to harvest its timber in the late 1950s or early

prescriptive easement.

12
1960s. To show continuous use of the road, Thomas relies

primarily on the periodic inspections of her timber after

the property was reseeded in the late 1950s and the harvest

of that timber in the mid 1990s.

In Pettus and Ward, we explained that, for a use to be

continuous, it did not need to be “daily, weekly, or even

monthly.” Ward, 234 Va. at 72, 360 S.E.2d at 182 (citing

Pettus, 232 Va. at 488-89, 352 S.E.2d at 325). Instead, to

determine continuity, “the nature of the easement and the

land it serves, as well as the character of the activity

must be considered.” Id.; accord McNeil, 237 Va. at 404,

377 S.E.2d at 432. The use must “be of such frequency and

continuity as to give reasonable notice to the landowner

that [such a] right is being exercised against him.”

McNeil, 237 Va. at 404, 377 S.E.2d at 432 (quoting 2

Frederick D.G. Ribble, Minor on Real Property § 990, at

1274 (2d ed. 1928)).

In Ward, we held that use of the road in question by

Dwight Harper, the dominant owner, had been continuous for

a period of 29 years. 234 Va. at 72, 360 S.E.2d at 182.

The evidence showed that Harper, his parents, and

grandparents had hauled “ ‘several hundred thousand feet’ ”

of timber over the road once or twice each year. Id. at

71-72, 360 S.E.2d at 182. At times, the timbering included

13
using the road in question to take machinery to the

property to skid the trees and to remove the logs with

trucks. Id. at 72, 360 S.E.2d at 182. Harper also stated

that, as he used the road, he frequently saw the owners of

the servient parcel and that, in addition to using the road

for logging operations, he also traveled over the road on

many occasions to reach his property. Id. Thus, we

rejected the servient owner’s contention that the use had

not been continuous. Id.

Similarly in Pettus, the dominant owners had used the

road in question “periodically” over a span of 21 years for

logging operations, including hauling pulpwood over the

road at issue in both “single-axle trucks and large

‘tractor-trailers.’ ” 232 Va. at 488, 352 S.E.2d at 325.

We concluded that, “[c]onsidering the nature of the

easement and the uninhabited land which it served, the lack

of daily, weekly, or even monthly use for the required

period of time did not . . . interrupt the continuity

necessary to establish the easement.” Id. at 488-89, 352

S.E.2d at 325. In other words, the road in question had

been used as needed by the dominant owners. Id.; see also

Willis v. Magette, 254 Va. 198, 203-04, 491 S.E.2d 735, 738

(1997) (continuity shown by constant use of the road in

question to reach a dwelling house until it burned and by

14
seasonal use for farming, logging, and recreational

purposes); McNeil, 237 Va. at 402-03, 377 S.E.2d at 431

(dominant owners used a dirt road “two to three times a

month to carry feed to their chickens 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”).

In contrast to the evidence in Pettus and Ward, there

was not “credible evidence” in the present case to support

the circuit court’s finding that both Jones and Thomas had

established, under the clear and convincing evidentiary

standard, a continuous use of the disputed road sufficient

to give reasonable notice to the servient owner that a

right adverse to its property rights was being exercised.

Chaney, 250 Va. at 158, 458 S.E.2d at 453. As to Jones,

the evidence was undisputed that the timber on its property

was harvested in the late 1950s or early 1960s. However,

no one testified as to whether the logging trucks and

equipment needed to harvest the Jones timber used the

portion of Brightwell Road in dispute or, instead, traveled

over Brightwell Road in the opposite direction, as was done

when the timber on an adjacent parcel was harvested during

the same time period. The remaining evidence demonstrated

only a sporadic use of the road by Jones just for purposes

15
of checking timber growth, preparing management reports and

appraisals, and marking boundary lines.

As to Thomas, her use of the disputed road, prior to

the harvest of her timber, had been similar in frequency

and purpose to that made by Jones. When the Thomas timber

was harvested, the road was used but it was with the

permission of Chesapeake, the servient landowner at that

time. Witnesses on Thomas’ behalf stated that the purpose

of the written agreement between Thomas and Chesapeake was

to provide for maintenance of the road, but that document,

within its four corners, clearly granted her a temporary

right-of-way for the purpose of transporting timber from

and reforesting her property. See Wilson v. Holyfield, 227

Va. 184, 187-88, 313 S.E.2d 396, 398 (1984) (a court must

construe a contract as written).

We acknowledge that the road in question was visible

even before the Thomas timber was harvested. However, the

fact that the road was used by persons for various purposes

does not mean that there was a sufficiently continuous use

by Jones or Thomas of such a nature as to establish a

prescriptive easement for “agricultural purposes to-wit:

forestry, timbering or logging purposes,” as decided by the

circuit court. Continuity must be determined by looking at

“the nature of the easement and the land it serves, as well

16
as the character of the activity.” Ward, 234 Va. at 72,

360 S.E.2d at 182. There is no question that, in order to

establish a prescriptive easement for forestry, timbering

or logging purposes, use of a road need not be daily,

weekly, or monthly. To carry out those sorts of

activities, which are generally seasonal in nature, does

not require such frequent use of a road. But, the use must

nevertheless be of sufficient continuity, in terms of the

character of the activity and frequency, to give reasonable

notice to a servient landowner that an adverse property

right is being exercised. See McNeil, 237 Va. at 404, 377

S.E.2d at 432.

The necessary continuity was present in Ward where

timber was hauled over the road in question once or twice

each year, and machinery was taken over the road from time

to time. 234 Va. at 72, 360 S.E.2d at 182. Similarly, in

Pettus, the road in question was used for logging

operations “periodically” over a span of 21 years. 232 Va.

at 488, 353 S.E.2d at 325. Here, there was no timber

harvested on either the Jones or Thomas parcels for over 35

years. So, for more than three decades, the only use of

the disputed road was for sporadic visits to each of the

parcels to check timber growth, prepare management plans or

appraisals, and mark boundary lines. That limited use of

17
the road was not sufficiently continuous to give the

servient owner notice that a right was being exercised

against its property interests.

“[T]he law is jealous of a claim to an easement.”

Eagle Lodge, Inc. v. Hofmeyer, 193 Va. 864, 877, 71 S.E.2d

195, 202 (1952). That is so because “[t]he imposition of a

prescriptive easement is the taking of a property right of

the servient owner without payment of compensation.”

McNeil, 237 Va. at 406, 377 S.E.2d at 433. It is also one

of the reasons why this Court decided that a claimant must

establish a prescriptive easement by clear and convincing

evidence. Pettus, 232 Va. at 486-87, 352 S.E.2d at 324.

CONCLUSION

For these reasons, we conclude that there was not

“credible evidence” to support the circuit court’s finding

that both Jones and Thomas had established, under the clear

and convincing evidentiary standard, a prescriptive

easement over the road in question. Chaney, 250 Va. at

158, 458 S.E.2d at 453. Neither Jones’ nor Thomas’ use of

the road was of sufficient continuity to give notice to the

servient landowner that each one of them was exercising a

right to an easement “for agricultural purposes to-wit:

18
forestry, timbering or logging purposes.” Therefore, we

will reverse the judgment of the circuit court.7

Reversed and final judgment.

7
In light of our decision, it is not necessary to
address Amstutz’s remaining assignments of error.

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