Shooting Point, L.L.C. v. Wescoat

PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, * S.J.

SHOOTING POINT, L.L.C., ET AL.

v. Record No. 020801

JOHN W. WESCOAT

OPINION BY JUSTICE BARBARA MILANO KEENAN
February 28, 2003

JOHN W. WESCOAT

v. Record No. 020803

SHOOTING POINT, L.L.C., ET AL.

FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Frederick B. Lowe, Judge

In this appeal, we primarily consider whether the

chancellor erred in determining the location of an easement and

in ruling that the proposed use of the dominant estate as a

residential subdivision would not overburden the servient

estate.

John W. Wescoat owns a tract of land in Northampton County

(the Wescoat parcel) that is subject to a recorded easement in

favor of a 176-acre tract owned by Shooting Point, L.L.C. (the

Shooting Point parcel). The easement, which is 15 feet wide and

0.3 mile in length, is the only means of ingress and egress

between the Shooting Point parcel and a nearby state highway.

*
Chief Justice Carrico presided and participated in the
hearing and decision of this case prior to the effective date of
In response to a plan by Shooting Point, L.L.C. (Shooting Point)

to develop its parcel into a residential subdivision, Wescoat

filed a bill of complaint alleging, among other things, that

Shooting Point's proposed use of its parcel would "impose an

additional and unreasonable burden on the easement" over

Wescoat's land.

After hearing the evidence ore tenus, the chancellor ruled

that use of the Shooting Point parcel as a residential

subdivision would not overburden the servient estate. The

chancellor also determined that the actual location of the

easement was as shown on certain survey plats. Both Wescoat and

Shooting Point appeal.

The evidence before the chancellor showed that the Shooting

Point parcel is separated from State Highway Route 622 (Route

622) by the Wescoat parcel. The easement, which follows a dirt

road over the Wescoat parcel, is located between a field on one

side and woods on the other side. The dirt roadway has three

90-degree turns, including two turns that are "blind" where the

wooded areas obscure approaching traffic.

In 1974, Wescoat's predecessors in title executed and

recorded a written grant of easement establishing the right-of-

way. The grant described the location of the easement in the

following terms:

his retirement on January 31, 2003.

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 [S]aid right-of-way easement to follow the present
road leading from Virginia State Highway Route 622 to
lands . . . known as Shooting Point Farm, said present
road running generally in a northerly direction from a
point in a turn of said Virginia State Highway Route
622 to a point at or near a corner of a certain woods,
thence turning in a generally easterly direction and
running along the northern edge of said woods to a
point at or near the edge of said woods, thence
turning in a generally northerly direction and
following along the edge of said woods to a point at
or near a corner of said woods, thence turning in a
generally easterly direction and running along the
edge of said woods until the boundary line separating
Shooting Point Farm from the [Wescoat parcel] is
reached, at which boundary line the said right-of-way
easement terminates.

The grant further described the right-of-way as "the only

easement to provide a means of ingress and egress" from Route

622 to the Shooting Point parcel. The grant did not contain a

clause limiting use of the easement.

At the time the easement was established, both the servient

estate and the dominant estate were used primarily for

agricultural and recreational purposes. In June 1979, Shooting

Point's predecessors in title conveyed 13.2 acres at the

southern border of the Shooting Point parcel to Richard E.

Meekins, Sr. The deed conveyed to Meekins the right to use the

easement as shown on a plat prepared in May 1979 by Bonifant

Land Surveys (the Bonifant plat).

In December 1999, Shooting Point purchased the dominant

estate and began planning the development of a residential

subdivision. The proposed subdivision has 18 residential lots,

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each averaging over five acres, which border a 50-acre lot to be

preserved as "open space."

Shooting Point recorded a plat in the circuit court clerk's

office, prepared by Baldwin & Gregg Surveyors (the Gregg plat),

that showed the proposed subdivision and the 15-foot-wide

easement connecting the Shooting Point parcel to Route 622. The

Gregg plat incorporated the Bonifant plat and, in depicting the

easement, adopted the Bonifant plat's courses, distances,

measuring points, and centerline.

Shooting Point also recorded a declaration of protective

covenants that incorporated the Gregg plat, and later used that

plat to describe the easement in a deed of trust conveying a

subdivision lot to a trustee. Shooting Point conveyed certain

other subdivision lots in five separate deeds, each conveying

the right to use the easement and referencing the Gregg plat's

depiction of the right-of-way.

In January 2000, Wescoat sent a letter to some of the

subdivision lot purchasers advising them that the easement was

restricted to a width of 15 feet. Wescoat further informed the

purchasers that the right-of-way would be "clearly marked" to

make them aware of the easement's width. Wescoat's son placed

two stakes 15 feet apart at the easement's entrance near Route

622 that straddled the existing usage of the easement. A large

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sign was placed near the stakes that read, "Begin 15 Foot Right

of Way."

In February 2000, Wescoat filed a bill of complaint against

Shooting Point alleging that Shooting Point's proposed use of

its parcel as a residential subdivision was not reasonable and

would create "an additional and unreasonable burden" on the

easement. Wescoat asked the chancellor, among other things, to

enjoin Shooting Point from selling and conveying the remaining

lots in the proposed subdivision.

In January 2001, Wescoat employed George E. Walters, a

certified land surveyor, to survey the easement and to place

markers delineating its course. After Walters situated the

markers on the property, Wescoat's son placed wooden posts

outside those markers along the roadway to designate the

easement's course. In general, the pathway created by the posts

followed the line of the woods more closely than the existing

roadway and resulted in "sharper" 90-degree turns.

In February 2001, Wescoat filed a bill of complaint for

declaratory judgment against Shooting Point, L.L.C., Shooting

Point Property Owners Association, Inc. (collectively, Shooting

Point), and others, seeking various rulings concerning Shooting

Point's use of its property. The chancellor consolidated

Wescoat's two suits for trial.

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 Before trial, Shooting Point requested leave to file a

cross-bill in Wescoat's declaratory judgment suit. In its

proposed cross-bill, Shooting Point sought a determination of

the easement's location and removal of the posts that Wescoat's

son had placed along the course of the easement. The chancellor

denied Shooting Point's motion.

Shooting Point also filed a motion in limine to exclude

from evidence Walters' testimony and the two revised plats he

prepared depicting the easement (the Walters plats) on the

ground that this evidence was not timely disclosed. Shooting

Point did not receive copies of Walters' revised plats until the

day before trial.

In response to the motion in limine, Wescoat noted that no

order had been entered regulating discovery in the case, and

that Shooting Point also was not timely in its disclosures,

having designated an expert witness only the day before trial.

The chancellor denied Shooting Point's motion in limine.

On the first day of trial, Wescoat moved the chancellor to

continue the case on the ground that the issue of the easement's

location was not properly before the court. Shooting Point

opposed the motion, arguing that the issue was "directly" before

the court. The chancellor denied the continuance motion.

At trial, the chancellor received evidence from expert

witnesses indicating that the proposed residential subdivision

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would generate daily about ten vehicle trips per lot. Thus, the

proposed subdivision would result in an additional 180 trips

daily over the easement.

Wescoat's son, John W. Wescoat, Jr., testified that

vehicles traveling in opposite directions on the easement could

not pass at the same location. John stated that the worn

roadway remained the same from 1977 to 1999, and that, after

Shooting Point purchased its parcel, the traffic on the easement

increased and the roadway became wider as motorists drove around

"mudholes" in the easement and "cut" corners at the turns in the

roadway.

Curtis Jones, Jr., Wescoat's cousin, leased both the

Wescoat and Shooting Point parcels for farming purposes. Jones

testified that he and his employees make heavy use of the

easement when they plant, maintain, irrigate, and harvest the

crops.

Wescoat presented the testimony of Walters, who qualified

as an expert witness on the subject of land surveying. He

testified that the easement was first surveyed in 1979 by P.

Bonifant, and that Walters created his plats in an attempt to

"resurvey" the easement shown on the Bonifant plat.

Walters stated that he first chose a buried survey pin, or

"rebar," that he discovered in the middle of the existing

roadway near Route 622 to mark the centerline of the easement,

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and that he originally used that centerline in his plat to

delineate the easement's course. However, after a consultation

with Bonifant, Walters later concluded that a " 'bent rebar'

marker," located approximately nine feet east of the other

"rebar," was the marker indicating the correct location of the

easement's centerline. Walters testified that he revised his

plats to reflect the "bent rebar" as the centerline of the

easement, which resulted in a nine-foot eastward shift of the

easement's entrance onto Route 622.

Walters stated that the course designated on his revised

plats reproduced the easement as shown on both the Gregg and the

Bonifant plats. Walters opined that the present usage of the

easement had moved westward since the time of Bonifant's survey

and explained that the paths of farm roads "tend to wander" as

motorists drive vehicles around potholes and tree limbs that

protrude into roadways.

Shooting Point presented the expert testimony of James B.

Latimer, II, a licensed land surveyor, who testified that the

easement's centerline in the Bonifant plat "is closer to the

east, closer to the woods than the physical road that's there."

He also stated that the roadway has always been in its present

location.

Shooting Point also submitted expert testimony from

Millison E. Duff, Jr., a licensed surveyor and president of

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Baldwin & Gregg Surveyors. Duff stated that the Gregg plat

adopted the Bonifant plat's depiction of the easement because

that depiction "appeared to follow generally along the road that

we had evidence of being in existence at that time."

Duff further testified that the "bent rebar" located about

nine feet east of the center of the existing roadway was the

survey pin that Bonifant used to mark the easement's centerline.

Duff stated that if Bonifant's centerline were followed, the

eastern border of the easement would "go right through an 18-

inch pine tree," and motorists traveling on the easement would

"scrape" the right side of their vehicles against the tree.

Duff said that he did not believe that anyone presently could

determine the precise location of the roadway in 1974 "short of

doing a soils analysis." However, he concluded that the

Bonifant plat was the "best evidence" available concerning the

easement's location when the Gregg plat was prepared in 1999.

At the conclusion of the evidence, the chancellor held that

the Bonifant plat, the Gregg plat, and the Walters plats were

the "best evidence" of the easement's location, and that the

easement's location was accurately depicted on those plats. The

chancellor stated that "[a]ny attempt to establish an alteration

[of the designated easement] would simply amount to no more than

guesswork or speculation on the part of the Court." The

chancellor also held that use of the Shooting Point parcel as a

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residential subdivision would not overburden the servient

estate.

Shooting Point argues that the chancellor erred in denying

its motion for leave to file a cross-bill and its motion in

limine to exclude Walters' testimony and survey plats. In

support of these contentions, Shooting Point advances the same

arguments it made before the chancellor. We disagree with

Shooting Point's arguments.

The chancellor's rulings on both pretrial motions were

proper exercises of his discretion. First, Shooting Point did

not need to file a cross-bill to raise the issue of the

easement's location, which already was before the court as

Shooting Point observed in its opposition to Wescoat's

continuance motion. Moreover, the location of the easement was

the subject of extensive evidence presented by both parties

during trial and is before us in this appeal. Second, the

chancellor's ruling denying the motion in limine is supported by

the materiality of Walters' testimony and his plats to the

issues being tried, and the absence of any order requiring

earlier disclosure of discoverable information.

Shooting Point next argues that the chancellor erred in

concluding that the Bonifant plat, the Gregg plat, and the

Walters plats accurately depict the easement's location.

Shooting Point contends that the chancellor improperly ignored

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evidence of existing usage and established a new easement

location. Shooting Point asserts that a literal application of

the Bonifant and Walters plats results in an easement that is

unreasonably close to the line of woods, includes a pine tree

over 18 inches in diameter, and contains sharp turns that impede

the passage of larger vehicles. We disagree with Shooting

Point's arguments.

An established standard of review governs our consideration

of both this issue and the issue of the burden placed on the

servient estate. The chancellor, as trier of fact, evaluated

the witnesses' testimony and their credibility. Tauber v.

Commonwealth, 263 Va. 520, 526, 562 S.E.2d 118, 120 (2002);

Johnson v. Cauley, 262 Va. 40, 44, 546 S.E.2d 681, 684 (2001).

Because he heard the evidence ore tenus, the chancellor's decree

is entitled to the same weight as a jury verdict. Chesterfield

Meadows Shopping Ctr. Assocs., L.P. v. Smith, 264 Va. 350, 355,

568 S.E.2d 676, 679 (2002); Johnson, 262 Va. at 44, 546 S.E.2d

at 684; Hoffman Family, L.L.C. v. Mill Two Assocs. P'ship, 259

Va. 685, 696, 529 S.E.2d 318, 325 (2000). Thus, on appeal, we

will not set aside the chancellor's findings unless they are

plainly wrong or without evidence to support them. Tauber, 263

Va. at 526, 562 S.E.2d at 120; Hudson v. Pillow, 261 Va. 296,

302, 541 S.E.2d 556, 560 (2001).

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 Here, the chancellor received substantial evidence

supporting his determination of the easement's location. The

Bonifant Plat, the first plat depicting the easement, was

prepared only five years after the easement was established.

The Gregg plat and the revised Walters plats placed the easement

at the same location detailed in the Bonifant plat.

The chancellor's determination also is supported by

Shooting Point's own extensive use of the Bonifant plat's

location of the easement. Shooting Point implicitly agreed to

the accuracy of this location by referring to the Gregg plat in

five deeds conveying lots to subdivision purchasers, in one deed

of trust, and in Shooting Point's declaration of protective

covenants. In addition, Shooting Point's expert, Duff,

testified that the Bonifant plat was the "best evidence"

available of the easement's location when the Gregg plat was

prepared.

We disagree with Shooting Point's assertion that a literal

application of these plats incorrectly would place the easement

too close to the woods. Although Duff initially testified that

the eastern border of the easement, as shown in the plats, would

"go right through an 18-inch pine tree," he effectively modified

this statement when he later testified that a vehicle traveling

on the easement would merely "scrape" its side against the tree.

Also, the chancellor received testimony indicating that the path

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of the worn roadway had "migrated" away from the woods since the

time of Bonifant's survey.

We also find no merit in Shooting Point's contention that

evidence of existing usage showed that Wescoat consented to a

change in the easement's location. We initially observe that,

generally, when a fixed location of a granted easement is

established, that location may be changed only with the express

or implied consent of the persons interested. Buxton v. Murch,

249 Va. 502, 508, 457 S.E.2d 81, 84 (1995); Fairfax County Park

Auth. v. Atkisson, 248 Va. 142, 148, 445 S.E.2d 101, 104 (1994);

Wagoner v. Jack's Creek Coal Corp., 199 Va. 741, 746, 101 S.E.2d

627, 630 (1958). Thus, in the present case, evidence of

existing usage of the easement was competent evidence for the

chancellor's consideration.

Here, however, the evidence of usage did not establish

consent by Wescoat to a new easement location. Although Curtis

Jones, Wescoat's cousin and tenant, sometimes drove his vehicles

outside the defined course of the easement as a matter of

convenience, his actions did not indicate that Wescoat consented

to a different course of the roadway. Similarly, Wescoat's

consent cannot be inferred from evidence that after Shooting

Point purchased its parcel, the worn pathways in the road

widened as motorists drove their vehicles around mud holes and

"cut" corners to ease the sharp turns along the roadway.

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 The placement of stakes at the easement entrance, and posts

along the course of the easement, also did not establish

Wescoat's consent to a different fixed location for the right-

of-way. Although Wescoat's letter to the subdivision lot owners

advised that the easement would be "clearly marked," only two

stakes were placed at the easement's entrance near Route 622.

The following month, Wescoat initiated the present suit against

Shooting Point.

While some posts later were placed along the course of the

worn roadway, the evidence showed that the path marked by the

posts generally followed the line of woods more closely than the

existing roadway and resulted in "sharper" 90-degree turns. In

addition, both Shooting Point and Wescoat disputed that the

pathway created by the posts was the true easement location. At

trial, Shooting Point asserted that the posts improperly

restricted its use of the easement. Wescoat argued that the

revised Walters plats, which shifted the easement about nine

feet to the east of the posts at the entrance onto Route 622,

depicted the correct location of the right-of-way. Thus, we

conclude that the record did not establish an express or implied

agreement by Wescoat to effect a change in location of the

easement, and we hold that the chancellor did not err in his

determination of the easement's location.

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 Wescoat assigns error to the chancellor's ruling that

Shooting Point's use of its parcel as a residential subdivision

would not overburden the servient estate. Wescoat argues that

this use would create an additional burden on his property that

would adversely impact his ability to use the easement. He

alternatively contends that even if Shooting Point's use would

only result in an increase in degree of the existing burden,

that increase would have the practical effect of imposing an

additional burden on the servient estate. We disagree with

Wescoat's arguments.

A party alleging that a particular use of an easement is

unreasonably burdensome has the burden of proving his

allegation. Shenandoah Acres, Inc. v. D.M. Conner, Inc., 256

Va. 337, 342, 505 S.E.2d 369, 371 (1998); Hayes v. Aquia Marina,

Inc., 243 Va. 255, 259, 414 S.E.2d 820, 822 (1992). Generally,

when an easement is created by grant or reservation and the

instrument creating the easement does not limit its use, the

easement may be used for "any purpose to which the dominant

estate may then, or in the future, reasonably be devoted." Id.

at 258, 414 S.E.2d at 822 (quoting Cushman Virginia Corp. v.

Barnes, 204 Va. 245, 253, 129 S.E.2d 633, 639 (1963)); see also

Collins v. Fuller, 251 Va. 70, 72, 466 S.E.2d 98, 99 (1996).

However, this general rule is subject to the qualification that

no use may be made of the easement, different from that

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established when the easement was created, which imposes an

additional burden on the servient estate. Id.; Hayes, 243 Va.

at 258-59, 414 S.E.2d at 822; Cushman, 204 Va. at 253, 129

S.E.2d at 639-40.

In the present case, the 1974 grant did not restrict use of

the easement. Therefore, we consider whether the evidence

supports a conclusion that Shooting Point's subdivision of the

dominant estate is a reasonable use of the parcel that would not

overburden the servient estate.

Our decisions in Hayes and Cushman illustrate the nature of

this inquiry. In Hayes, an operator of a marina on the dominant

estate, a 2.58-acre tract, proposed to expand its marina

facility from 84 to 280 boat slips. The easement providing

access to the marina was a private roadway about 1,120 feet long

and 15 feet wide along its entire course. The agreement

creating the easement did not restrict its use. 243 Va. at 256-

59, 414 S.E.2d at 820-22.

We held that the record supported the chancellor's

conclusion that the proposed expansion would not unreasonably

burden the servient estate, although the "degree of burden"

would be increased. We assumed, without deciding, that an

expanded use of a dominant estate could be of such degree as to

create an additional burden on a servient estate, but concluded

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that the proposed marina expansion was not shown to create such

an additional burden. Id. at 260, 414 S.E.2d at 823.

Similarly, in Cushman, the instrument creating the easement

did not contain any language limiting the easement's use. When

the easement was established, the dominant estate, a 126.67-acre

tract, had two dwelling houses and was used as a farm. The

owner of the dominant estate proposed to subdivide his land for

a residential and commercial development that would include 34

residential lots. 204 Va. at 252-53, 129 S.E.2d at 639-40.

We reversed the chancellor's decree limiting the easement

to its original uses, stating:

The fact that the dominant estate is divided and a
portion or portions conveyed away does not, in and of
itself, mean that an additional burden is imposed upon
the servient estate. The result may be that the
degree of burden is increased, but that is not
sufficient to deny use of the right of way to an owner
of a portion so conveyed.

Id. at 253, 129 S.E.2d at 640. Emphasis added.

Applying these principles to the present case, we hold that

the subdivision of the 176-acre Shooting Point parcel into 18

residential lots is, in the language of Cushman, a purpose to

which the dominant estate may be reasonably devoted. See id.,

129 S.E.2d at 639. Moreover, the record supports the

chancellor's conclusion that Shooting Point's proposed use of

the easement would not impose an unreasonable burden on the

servient estate. Although the number of vehicles using the

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easement would increase substantially as a result of the

proposed use, this fact demonstrates only an increase in degree

of burden, not an imposition of an additional burden, on the

servient estate. Like the facts underlying our decision in

Hayes, the facts here do not support consideration of a further

question whether an increased degree of burden could be so great

as to impose an additional burden on the servient estate.

For these reasons, we will affirm the chancellor's

judgment.

Affirmed.

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