Auerbach v. County of Hanover

Present:   All the Justices

DAVID AUERBACH, ET AL.
                         OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
v. Record No.   960062                 November 1, 1996

COUNTY OF HANOVER, ET AL.

              FROM THE CIRCUIT COURT OF HANOVER COUNTY
                     Richard H.C. Taylor, Judge


     This appeal arises from the trial court's judgment reversing

the denial by a county subdivision agent of a proposed

subdivision plat for a tract of land owned by Hubert C. and

Pamela M. Mentz (the Mentzes).   The agent refused to approve the

proposed subdivision by the Mentzes primarily on the ground that

an easement of right-of-way across an adjoining servient estate

did not serve the entire subdivision and was, therefore,

inadequate to provide the access required under a local zoning

ordinance.   The appellants, owners of the servient estate and

intervenors below, assert that the trial court erred in finding

that the easement serves the entire proposed subdivision and

directing the County to approve the plat.   Finding no error, we

will affirm the judgment of the trial court.
     In 1986, the Mentzes acquired title to a tract of land

consisting of approximately 122.5 acres in Hanover County (the

1986 tract) by deed recorded in the clerk's office of the circuit

court in deed book 659 at page 707.   Access from the 1986 tract

to State Route 606 was provided by an easement granted to the

Mentzes' predecessors in title across an adjoining servient

estate.    The record shows also that the easement originally

attached to the 1986 tract was limited to farm vehicles and
vehicles for the residences on the 122.5 acres at the time the

easement was created.   In 1991, the Mentzes acquired a portion of

a tract adjoining the 1986 tract consisting of approximately 10

acres (the 1991 tract) with direct access to State Route 606.

     In 1992, the Mentzes entered into a contract to convey a

section of the 1991 tract to David Auerbach and Susan C. Ortmann

(the Auerbachs).   The deed conveying "Parcel A" and recorded in

deed book 972 at page 340 includes the following language:
          [The Mentzes] . . . convey unto [the Auerbachs]
     . . . the following described property, to-wit:
          ALL that certain piece and parcel of land
          . . . being more particularly described as
          Parcel A on a plat of two parcels of land
          . . . dated January 9, 1991 and revised on
          August 18, 1992 and recorded herewith.

     . . . .

          [The Mentzes] hereby reserve an easement of
     right-of-way 50 feet in width along the western line of
     Parcel A leading from State Route 606 to Parcel B as a
     means of ingress and egress to and from Parcel B and
     State Route 606, said easement being shown as lying on
     the westerly side of Parcel A on the hereinabove
     described plat.

          [The Mentzes] do further grant and convey unto
     [the Auerbachs] a first right of refusal to purchase
     Parcel B consisting of 7.422 acres should [the Mentzes]
     sell that parcel of land.

          [The Mentzes] do hereby correct a certain plat
     drawn by Goodfellow, Jalbert, Beard and Associates Inc.
     dated January 9, 1991 and recorded in Deed Book 934,
     Page 653, Clerk's Office of the Circuit Court of
     Hanover County, which plat contains a description of 10
     acres including Parcel A hereinabove described. The
     aforesaid plat recorded herewith is substituted for the
     plat recorded in Deed Book 934, Page 653 and the
     description is corrected to refer to two parcels, A and
     B. Parcel B containing 7.422 acres is added on to the
     property described in Deed Book 659, Page 707 as an
     add-on, not for the purposes of creating additional
     building lots.
(Emphasis added.)

        Shortly after this deed was recorded, a dispute arose

between the Mentzes and the Auerbachs over the scope of the

easement.    The Mentzes instituted a chancery suit for declaratory

judgment and other equitable relief against the Auerbachs seeking

to establish that the easement over Parcel A was servient to the

1986 tract by virtue of Parcel B being added on to the larger

tract, thus creating a single unitary tract (the combined tract)

of approximately 129 acres.
        During the pending dispute over the scope of the easement,

the Mentzes proceeded with having the subdivision of the combined

tract, including an access road over the Parcel A easement,

platted.    This subdivision plat was submitted to Hanover County

for zoning approval on June 17, 1994.    The plat was disapproved

on July 22, 1994.    A resubmitted plat was also disapproved later

in 1994.    In each case, the zoning authority cited the limited

access provided by the Parcel A easement as one of the reasons

for disapproving the subdivision plat.

        On October 13, 1994, the Mentzes filed an appeal in the

trial court challenging the zoning authority's denial of the

plat.    On December 19, 1994, the Auerbachs filed a petition to

intervene in that proceeding.    In their petition, the Auerbachs

contended that their interest in the proceeding arose out of the

pending chancery suit for declaratory judgment filed against them

by the Mentzes.    The petition asserted that the resolution of the

appeal in favor of the County essentially would moot the claims

in the other suit.    The motion to intervene was granted on March
23, 1995 and the pending declaratory judgment suit was stayed.

     The parties submitted briefs including substantial

appendices of extrinsic evidence and argued their positions

before the trial court on July 25, 1995.   The parties agreed, as

they do here, that the dispositive issue was whether the easement

served the combined tract or merely Parcel B.   Thereafter, the

trial court issued a final order directing that the County

approve the subdivision plat stating, "After a thorough

examination of the Deed and Plat it is clear to the Court that

the 50 foot easement reserved benefits the whole 129, more or

less, acre tract [the combined tract] belonging to the

[Mentzes]."   We awarded the Auerbachs this appeal.
     The Auerbachs contend the language of the deed restricts the

use of the easement serving the 7.4 acres of Parcel B because the

specific language creating the easement makes no mention of the

larger 1986 tract.   However, we are not permitted to read the

language creating the easement in isolation from the remainder of

the deed.   To ascertain the intent of the grantors, the deed is

to be examined as a whole and effect given to all of its terms

and provisions not inconsistent with some principle of law or

rule of property.    See Fitzgerald v. Fitzgerald, 194 Va. 925,

929, 76 S.E.2d 204, 207 (1953).

     In Faison v. Union Camp Corporation, 224 Va. 54, 294 S.E.2d

821 (1982), we held that where a deed incorporates a plat by

reference, "that plat must be considered 'part of the instrument

itself.'"     Id. at 59, 294 S.E.2d at 824 (quoting Richardson v.

Hoskins Lumber Co., 111 Va. 755, 757, 69 S.E. 935, 936 (1911)).
Moreover, references on the plat to deeds recorded incorporate

the legal descriptions of those deeds into the plat and, thus,

into any subsequent deeds referencing the plat.    Id.

     The same principles apply to the facts of this case.       The

terms "Parcel A" and "Parcel B" are nowhere sufficiently

described in the text of the deed itself.   Without reference to

the incorporated plat, there would be an ambiguity in the deed.

However, the clear and unambiguous language on the incorporated

plat and its depiction of the perimeter metes and bounds of these

parcels resolves any possible ambiguity and establishes the

grantors' intent.
     Read together, the deed and the plat incorporated therein

establish that the 1991 tract was divided into two separate

tracts.    Parcel A, the smaller of the two tracts, was conveyed by

the deed subject to a fifty-foot-wide easement of ingress and

egress along its westerly edge between State Route 606 and the

remainder of the 1991 tract.   Both the deed and the plat make

clear that this remainder, designated as Parcel B, is an "add-on"

parcel to the 1986 tract, described on the plat both in the metes

and bounds depiction and in a marginal note by reference to the

deed recorded in deed book 659 at page 707.

     Since "add-on" is not a term of art with a recognized

meaning in law, we must assume that it has its usual and ordinary

meaning.    Conner v. Hendrix, 194 Va. 17, 25, 72 S.E.2d 259, 264

(1952).    In the present context, we think such a meaning is

something added on or an addition to something which creates a

larger whole.   Thus, by the express language of the deed and its
incorporated plat, Parcel A was conveyed to the Auerbachs subject

to an easement in favor of Parcel B.   However, as described by

the deed and the incorporated plat, Parcel B is not merely the

remaining 7.4 acres of the 1991 tract, but that acreage added

onto the 1986 tract and creating the combined tract of

approximately 129 acres.

     The provision for a right of first refusal to purchase

"Parcel B consisting of 7.422 acres" in the deed does not alter

our conclusion.   That provision is expressly limited to the 7.422

acre tract for the purpose of the right of first refusal to

purchase should the Mentzes sell that tract.   Nothing in the

right is inconsistent with Parcel B being added onto the 1986

tract to create the combined tract.    Rather, this right merely

prohibits the Mentzes from selling the Parcel B portion of the

combined tract at a later date without first offering it to the

Auerbachs.   See Lake of the Woods Assoc. v. McHugh, 238 Va. 1, 5,

380 S.E.2d 872, 874 (1989) ("the right of first refusal only

becomes operative if and when the owner decides to sell").

     Nor does the deed's restriction on the add-on of Parcel B as

"not for the purposes of creating additional building lots"

exclude a finding that the easement serves the combined tract.

To the contrary, this restriction clearly contemplates that the

combined tract may be subdivided into building lots.   The

restriction on the use of the portion of the combined tract

added-on from the 1991 tract clearly connotes that the add-on

parcel serves some other purpose--namely to permit creation of

the easement servient to the combined tract.
        We hold that the grantors' intent, express and unambiguous

on the face of the deed, its incorporated plat, and all the

references thereon, was to establish an easement over Parcel A

servient to the combined tract of approximately 129 acres rather

than merely to the 7.4 acres of "Parcel B." *     Accordingly, we

will affirm the order of the trial court.

                                                        Affirmed.
CHIEF JUSTICE CARRICO, with whom JUSTICE HASSELL and JUSTICE
KEENAN join, dissenting.

        Obviously uncertain that the Mentz to Auerbach deed is

sufficient in its own terms to impose upon Parcel A the extra

burden of an easement appurtenant to the 122.5-acre Mentz tract,

the majority strives to convince the reader that any uncertainty

is removed when the deed is read together with the incorporated

plat.       But the plat does not aid the position taken by the

majority; all the majority can point to on the plat is the "add-

on" language similar to the language contained in the deed.         So,

if the deed is not sufficient in and of itself, it is not

sufficient even with the plat.

        Be that as it may, the deed, in unmistakable terms, reserves

"an easement of right-of-way 50 feet in width along the western

line of Parcel A leading from State Route 606 to Parcel B as a

        *
      Appellants further assert that the trial court erred in
receiving and considering parol evidence in interpreting the deed
creating the easement when there was no ambiguity in that deed.
Because we hold that the deed, when properly examined, grants an
easement serving the entire area of the subdivision, we need not
consider whether the trial court's judgment was influenced by the
parol evidence. See, e.g., Doswell Ltd. Partnership v. Virginia
Power, 251 Va. 215, 222, 468 S.E.2d 84, 88 (1996).
means of ingress and egress to and from Parcel B and State Route

606."    (Emphasis added.)   Nothing in this language even suggests

that the easement shall also be appurtenant to the 122.5-acre

tract.    Furthermore, the plat graphically depicts the easement

exactly as it is described in the deed, with the easement shown

touching Parcel B at a point several hundred feet from the

nearest line of the 122.5-acre tract.     Nothing in this depiction

indicates that the easement is also appurtenant to the 122.5-acre

tract.
        Then comes the language that is so crucial to the result

reached by the majority, viz., "Parcel B . . . is added on to the

[122.5-acre tract] as an add-on."     This language is contained in

a paragraph which states that it is included in the deed for the

purpose of correcting a certain plat and which also states that

the correction is made "not for the purposes of creating

additional building lots."

        Now, one would think that if it were the intention of the

parties to make the easement in question appurtenant to the

122.5-acre tract, a most important result to all concerned, they

surely could have found clear and direct language to express

their intention, rather than the incomprehensible "added on . . .

as an add-on" language.      As it is, I think that the language used

adds nothing even remotely connecting the use of the easement to

the 122.5-acre tract.    At least, I hope we have not yet reached

the point where we will allow such meaningless language to be

considered sufficient to affect estates in land.     I would reverse

the judgment of the trial court and enter final judgment here in
favor of Auerbach and Ortmann.