Present: Lacy, Keenan, Koontz, Kinser, Lemons, and Agee, JJ.,
and Stephenson, S.J.
VIRGINIA ELECTRIC AND POWER
COMPANY, d/b/a DOMINION
VIRGINIA POWER
v. Record No. 042426 OPINION BY JUSTICE DONALD W. LEMONS
September 16, 2005
NORTHERN VIRGINIA
REGIONAL PARK AUTHORITY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
This case involves a strip of land generally 100 feet
wide and 45 miles long known as the "W&OD Trail" ("the Trail")
that is one of the most popular bike trails in America and is
host to approximately three million visitors annually.
Located in northern Virginia and stretching from Arlington
County to Purcellville, Virginia, the Trail is also an
extraordinarily valuable property impressed with numerous
easements for utility purposes. This dispute centers upon
whether Virginia Electric and Power Company, doing business as
Dominion Virginia Power ("Virginia Power"), has an exclusive
easement in gross upon the Trail for communication purposes
such that it has the right to apportion its easement and
license telecommunication rights to others.
I. Facts and Proceedings Below
The Northern Virginia Regional Park Authority ("Park
Authority"), was formed in 1959 by the counties of Fairfax,
1
Loudoun, and Arlington, and the cities of Fairfax, Falls
Church, and Alexandria pursuant to former Code § 15-714.3
(1956), the predecessor of current Code § 15.2-5702. At that
time, the Washington and Old Dominion Railroad ("W&OD
Railroad") operated in part on the parcel of land involved in
the controversy currently before the Court. In 1968, Virginia
Power purchased this parcel of land from the W&OD Railroad.
In 1976, the Park Authority sought to purchase the parcel in
order to create a recreational trail and entered into
discussions with Virginia Power to effect this purchase. Both
the Park Authority and Virginia Power were sophisticated
parties and well represented to ensure that their respective
interests were protected. The parties entered into an Option
Agreement on December 19, 1977.
Subsequent to the Option Agreement, the Park Authority
purchased the parcel from Virginia Power in a series of
successive transactions and deeds, and created what is now
known as the W&OD Trail. These deeds each contain the same
operative language found in Paragraphs 11 and 18 of the Option
Agreement. It is this language contained in the Option
Agreement and the deeds that is the focus of the dispute now
before the Court. The parties agreed in Paragraph 11 of the
Option Agreement that:
2
[Virginia Power] will reserve unto itself
all its electric facilities now located on said
lands. [Virginia Power] will further reserve
unto itself and its successors the following:
The perpetual right, privilege and
easement of right of way to lay, construct,
operate and maintain one or more lines of
poles, towers, structures, cables, conduits,
pipes and mains, together with all wires,
manholes, handholes, valves, regulators,
meters, attachments, equipment, accessories and
appurtenances desirable in connection therewith
(hereinafter referred to as "facilities"), for
the purpose of transmitting or distributing
electric power, for the purpose of transporting
natural gas, oil, petroleum pro[du]cts or any
other liquids, gases or substances which can be
transported through a pipe line, and for
communication purposes, over, under, upon and
across the lands hereby conveyed.
Paragraph 18 stated: "The Authority will not permit,
assign or grant any other party easements, rights, privileges
or encroachments of any nature on the land hereby conveyed,
without the written approval of the Company, provided such
approval shall not be withheld unreasonably." This language
was incorporated into each of the deeds that ultimately
conveyed fee simple ownership of what is now the W&OD Trail to
the Park Authority. Each deed also contained a concluding
paragraph that stated:
It is agreed between the parties hereto
that all references to [Virginia Power] and the
[Park] Authority shall include their respective
successors, and that all obligations hereunder
shall also bind any assignees of the [Park]
Authority. All restrictions, rights,
agreements, covenants and warranties herein are
3
appurtenant to the property hereby conveyed and
shall run with the land.
After the Option Agreement was finalized in 1977, and
following the initial transfer of the parcel to the Park
Authority in 1978, Virginia Power advised all tenants of the
transfer of ownership and provided the Park Authority with a
list of all tenants and their respective rents.
The present dispute has its origins in the growth of the
telecommunications industry that occurred in the 1980s and
1990s. Dating back to the ownership of the parcel by the W&OD
Railroad, numerous servitudes existed upon the parcel. Many
of these continued into the ownership of the parcel by both
Virginia Power and the Park Authority. The Option Agreement
and deeds specifically stated that the Park Authority "will
permit the present Lessees of [Virginia Power], to continue to
occupy such portions [of the parcel] as are presently under
lease, for at least five years from the date of the
conveyance, provided such occupancy does not unreasonably
interfere with the establishment" of the W&OD Trail.
In 1986, AT&T approached the Park Authority seeking to
install fiber optic cables along the W&OD Trail. During
negotiations with AT&T, a dispute arose between the Park
Authority and Virginia Power as to the scope of Virginia
Power's "approval" rights. In 2000, following several years
4
of work on its existing transmission lines to equip them with
fiber optic lines, Virginia Power decided that it could and
would negotiate directly with telecommunication customers
regarding licensing of its lines without including the Park
Authority in the process.
The Park Authority initiated this present action when it
filed a "Motion for Declaratory Judgment and Other Relief"
asking the Circuit Court of Fairfax County "to clarify that in
addition to Virginia Power having no right to assign, and no
exclusive rights, it has no right of apportionment" with
respect to the granting of telecommunication access to third
parties, without a license granted by the Park Authority.
Virginia Power filed an answer and a cross-bill seeking
declaratory judgment in its favor. Both the Park Authority
and Virginia Power asserted in the trial court that the deeds
were unambiguous.
After hearing evidence ore tenus, the trial court held
"that the deeds are unambiguous and clearly demonstrate the
parties' intention to enter into a non-exclusive easement in
gross. Therefore, Virginia Power does not have the power to
apportion it's [sic] easement to third parties for
telecommunication purposes." Virginia Power filed a "Renewed
Motion to Strike," which was denied, and the trial court
entered its final decree declaring that the parties entered
5
into a "non-exclusive easement in gross with no right of
apportionment," that the Park Authority "has the right to make
further conveyances to third parties for telecommunications
and other purposes, subject to [Virginia Power's] approval,
which shall not be withheld unreasonably," and that Virginia
Power's "purported transfer to its sister company Dominion
Telecom, Inc. of any right to install or use
telecommunications lines on the W&OD Trail exceeded [Virginia
Power's] rights under its easement."
We awarded Virginia Power this appeal and agreed to hear
four assignments of error: (1) the trial court erred in
determining that the easement is non-exclusive; (2) the trial
court erred in determining that the easement is not
apportionable; (3) the trial court erred "in considering
extrinsic evidence in construing unambiguous language of the
deeds creating the easement;" and (4) the trial court was
clearly erroneous in finding that Virginia Power's "legal
position concerning the proper construction of its easement
was of recent origin." We also agreed to hear the Park
Authority's assignment of cross-error that the trial court
reached the correct result, but nonetheless erred in failing
to consider the Option Agreement and the transfer letters
Virginia Power sent after execution of the first deed.
II. Analysis
6
A. Standard of Review
Whether a writing is ambiguous is a question of law, not
of fact. Utsch v. Utsch, 266 Va. 124, 129, 581 S.E.2d 507,
509 (2003); Pyramid Dev., L.L.C. v. D&J Assocs., 262 Va. 750,
754, 553 S.E.2d 725, 727 (2001). "Accordingly, on appeal we
are not bound by the trial court's interpretation of the
contract provision at issue; rather, we have an equal
opportunity to consider the words of the contract within the
four corners of the instrument itself." Eure v. Norfolk
Shipbuilding & Drydock Corp., 263 Va. 624, 631, 561 S.E.2d
663, 667 (2002) (citing Wilson v. Holyfield, 227 Va. 184, 187-
88, 313 S.E.2d 396, 398 (1984)). As such, we review the
judgment of the trial court de novo. In conducting our
review, we are mindful that "the function of the court is to
construe the contract made by the parties, not to make a
contract for them." Doswell L.P. v. VEPCO, 251 Va. 215, 222,
468 S.E.2d 84, 88 (1996) (citing Wilson, 227 Va. at 187, 313
S.E.2d at 398).
" '[W]here an agreement is complete on its face, is plain
and unambiguous in its terms, the court is not at liberty to
search for its meaning beyond the instrument itself . . . .
This is so because the writing is the repository of the final
agreement of the parties.' " Berry v. Klinger, 225 Va. 201,
208, 300 S.E.2d 792, 796 (1983) (quoting Globe Company v. Bank
7
of Boston, 205 Va. 841, 848, 140 S.E.2d 629, 633 (1965)).
" 'When the language of a deed is 'clear, unambiguous, and
explicit,' a court interpreting it 'should look no further
than the four corners of the instrument under review.' "
Utsch, 266 Va. at 129, 581 S.E.2d at 509 (quoting Langman v.
Alumni Assoc. of Univ. of Va., 247 Va. 491, 498-99, 442 S.E.2d
669, 674 (1994)). "The pole star for the construction of a
contract is the intention of the contracting parties as
expressed by them in the words they have used . . . . It is
the court's duty to declare what the instrument itself says it
says." Ames v. American Nat. Bank, 163 Va. 1, 38, 176 S.E.
204, 216 (1934). "Where language is unambiguous, it is
inappropriate to resort to extrinsic evidence; an unambiguous
document should be given its plain meaning." Great Falls
Hardware Co. of Reston v. South Lakes Village Center Assocs.,
L.P., 238 Va. 123, 125, 380 S.E.2d 642, 643 (1989).
"Thus, if the intent of the parties can be determined
from the language they employ in their contract, parol
evidence respecting their intent is inadmissible." Golding v.
Floyd, 261 Va. 190, 192-93, 539 S.E.2d 735, 737 (2001) (citing
Amos v. Coffey, 228 Va. 88, 91-92, 320 S.E.2d 335, 337
(1984)). "[I]n controversies between two parties to a
contract, parol evidence of prior or contemporaneous oral
negotiations or stipulations is inadmissible to vary,
8
contradict, add to, or explain the terms of a complete,
unambiguous, unconditional, written instrument." Godwin v.
Kerns, 178 Va. 447, 451, 17 S.E.2d 410, 412 (1941).
B. Exclusivity and Apportionability
Both parties to this controversy agree that the easement
in question is an easement in gross. An easement in gross is
an "easement with a servient estate but no dominant estate."
Corbett v. Ruben, 223 Va. 468, 472, 290 S.E.2d 847, 849
(1982). Although personal to the grantee, an easement in
gross is transferable by the grantee. Code § 55-6; United
States v. Blackman, 270 Va. 68, 78, 613 S.E.2d 442, 446-47
(2005); Hise v. BARC Elec. Coop., 254 Va. 341, 344, 492 S.E.2d
154, 157 (1997); Corbett, 223 Va. at 472 n.2, 290 S.E.2d at
849 n.2.
This controversy is over whether Virginia Power's
easement is exclusive or non-exclusive. "An exclusive
easement in gross is one which gives the owner the sole
privilege of making the uses authorized by it." 5 Restatement
(First) of Property § 493 cmt. c (1944). If the easement in
gross is exclusive, the owner of the easement may have the
right of apportionment, which is described as one of "so
dividing [an easement in gross] as to produce independent uses
or operations." Hise, 254 Va. at 344-45, 492 S.E.2d at 157
9
(citing 5 Restatement (First) of Property § 493 cmt. a.
(1944)). On the other hand, a non-exclusive easement in gross
is one which does not give, as against the
owner of the servient tenement and others who
may be privileged under him, the sole privilege
of making the use authorized by the
easement. . . . Because of this, the
apportionability of the easement will not be
assumed in the absence of a clear indication to
the contrary in the manner or terms of its
creation.
5 Restatement (First) of Property § 493 cmt. d. (1944).
First, we must address Virginia Power's assertions that
the trial court erred "in considering extrinsic evidence in
construing unambiguous language of the deeds creating the
easement" and in finding that Virginia Power's "legal position
concerning the proper construction of its easement was of
recent origin." While the trial court's letter opinion,
incorporated into its final order, does make reference to
these matters, the trial court's holding is abundantly clear:
"This Court holds that the deeds are unambiguous and clearly
demonstrate the parties' intention to enter into a non-
exclusive easement in gross." Virginia Power's assignments of
error regarding the trial court's reference to extrinsic
evidence and late arrival at its current position in this
litigation are without merit.
Virginia Power asserts that the trial court erred in its
holding that the easement in gross is non-exclusive and is
10
therefore not apportionable. Virginia Power argues that the
trial court's judgment is contrary to our decision in Hise.
We disagree. The principles articulated in Hise are
applicable to this controversy; however, the cases are
factually distinguishable.
In Hise, we considered the exclusivity of an easement in
gross obtained both by eminent domain and prescription.
There, a power company had operated a 7,000 volt power line
over the landowner's property based upon rights obtained by
prescription. The power company acquired additional rights by
eminent domain and sought to erect new poles and transfer
lines. The power company had permitted telephone and cable
television companies to attach their lines to its poles. Upon
the widening of the prescriptive easement, the landowners
objected and raised the issue of exclusivity and apportionment
of the easement. 254 Va. at 343-44, 492 S.E.2d at 156-57. In
holding that the easement in gross was an exclusive right, we
examined the description of rights acquired in the eminent
domain proceeding as well as the evidence of prescriptive use.
We held that the power company's prescriptive rights were
exclusive because the evidence proved that "no use was made of
the easement by any person or entity other than the power
company and its permittees, the telephone and cable
companies." Id. at 345, 492 S.E.2d at 157. After the
11
condemnation proceeding expanded the easement of the power
company, the Hises maintained that the right "to use the right
of way for any purpose not inconsistent with the rights sought
to be condemned," which they retained in the condemnation
proceeding, rendered the power company's easement non-
exclusive. Id. at 346, 492 S.E.2d at 158. Upon careful
consideration of the language used, we disagreed:
Nothing in the description of the Hises'
rights permits them to share the electric
company's poles or lines. Further, any utility
lines constructed by the Hises or their
grantees that cross the power company's
easement (1) must be at angles of not less than
45 degrees with the power company's easement,
(2) cannot interfere with or endanger the power
company's use of the easement, and (3) are
subject to the power company's paramount
rights. In our opinion, none of the Hises'
retained rights deprived the power company of
its "sole privilege of making the uses
authorized by [the eminent domain proceeding]."
Restatement of Property § 493 cmt. c.
Accordingly, we conclude that the power company
acquired an exclusive easement in gross in the
eminent domain proceeding.
Id.
Just as we examined the particular language used in the
eminent domain proceeding in Hise, we must examine the
language used in the deeds in this case and the circumstances
of the parties at that time. As we have stated:
The facts and circumstances surrounding the
parties when they made the contract, and the
purposes for which it was made, may be taken
into consideration as an aid to the
12
interpretation of the words used, but not to
put a construction on the words the parties
have used which they do not properly bear.
Seaboard Air Line R.R. Co. v. Richmond-Petersburg Turnpike
Auth., 202 Va. 1029, 1033, 121 S.E.2d 499, 503 (1961); see
also Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48, 64, 547
S.E.2d 216, 226 (2001).
When the Trail was owned by the W&OD Railroad, it was
used for telecommunications purposes by third parties. C&P
Telephone had an agreement to use the property for its wires
and structures since at least 1959. AT&T was granted licenses
by the railroad to install telecommunications lines in 1965
and 1966. In 1962, Virginia Power acquired an easement to use
the property for power lines.
When Virginia Power purchased the fee interest in the
property from the railroad, the conveyance was made "subject
to all existing recorded covenants, restrictions, easements,
leases, permits, licenses and existing physical encroachments
or any possible rights of third parties." At the time of the
conveyance, there were numerous above-ground telephone lines
on the property. Virginia Power obtained its fee interest
encumbered by this existing utility usage by third parties.
During the 10 years that Virginia Power owned the fee
interest, it granted additional communications licenses and
easements to third parties.
13
When Virginia Power sold its fee interest to the Park
Authority in 1978, the various deeds were made "subject to all
existing covenants, restrictions, easements, leases, permits
and licenses which affect the property . . . ." Additionally,
Virginia Power retained a utility easement in its deed to the
Park Authority. Virginia Power conveyed a large number of
pre-existing licenses and leases to the Park Authority as a
part of the transaction. As such, the pre-existing licenses
and leases encumbered both the fee conveyed to the Park
Authority and the easement retained by Virginia Power. The
record reveals that upon transfer of the fee interest from
Virginia Power to the Park Authority with the retaining of
Virginia Power's easement all subject to the use of pre-
existing licenses and leases of third parties, the
telecommunications usage was not exclusive to Virginia Power.
The language of the Option Agreement repeated in the
deeds demonstrates the non-exclusive nature of Virginia
Power's telecommunications easement. While Virginia Power
reserved "all [of] its electrical facilities," it also
reserved to itself and its successors, but not to its assigns,
the following:
[T]he perpetual right, privilege and
easement of right of way to lay, construct,
operate and maintain one or more lines of
poles, towers, structures, cables, conduits,
pipes and mains, together with all wires,
14
manholes, handholes, valves, regulators,
meters, attachments, equipment, accessories and
appurtenances desirable in connection therewith
(hereinafter referred to as "facilities"), for
the purpose of transmitting or distributing
electric power, for the purpose of transporting
natural gas, oil, petroleum products or any
other liquids, gases or substances which can be
transported through a pipe line, and for
communication purposes, over, under, upon and
across the lands hereby conveyed.
Such reservation is specifically limited by the
following:
It is agreed . . . that all references to
[Virginia Power] and the Authority shall
include their respective successors, and that
all obligations hereunder shall also bind any
assignees of the Authority.
The deeds explicitly recognize the Park Authority's right
to assign in the following provision:
The Authority shall not permit, assign or
grant to any other party any easements, rights,
privileges or encroachments of any nature on
the property hereby conveyed without the prior
written approval of [Virginia Power], provided
such approval shall not be withheld
unreasonably.
On appeal, Virginia Power makes much of the argument that
"successors" means "assigns." We need not address such an
argument because it is not dispositive of the issue. The
issue is whether Virginia Power has an exclusive easement in
gross. The clear language permitting the Park Authority to
grant third party easements "of any nature" subject to
approval by Virginia Power, which shall not be unreasonably
15
withheld, demonstrates the non-exclusivity of Virginia Power's
easement.
Upon review of the record, we hold that the language of
the deeds in question is not ambiguous and provides Virginia
Power a non-exclusive easement in gross. Accordingly,
Virginia Power does not have the right to apportion its
easement to third parties. It is unnecessary to address the
Park Authority's assignments of cross-error. We will affirm
the judgment of the trial court.
Affirmed.
JUSTICE KOONTZ, with whom SENIOR JUSTICE STEPHENSON joins,
dissenting.
I respectfully dissent. There is no dispute that the
pertinent language replicated in the various deeds by which
Virginia Electric and Power Company (Virginia Power) conveyed
its fee ownership of the property now known as the “W&OD
Trail” to The Northern Virginia Regional Park Authority (the
Park Authority) while reserving to Virginia Power the easement
in question is unambiguous. Accordingly, we are not permitted
to amplify the language in these deeds by consideration of
extrinsic evidence. Rather, “[i]t is the court’s duty to
declare what the instrument itself says it says.” Ames v.
American Nat’l Bank, 163 Va. 1, 38, 176 S.E. 204, 216 (1934).
16
In my view, the conclusion reached by the majority in the
present case that Virginia Power reserved only a non-exclusive
easement in gross and, consequently, that Virginia Power does
not have the right to apportion its easement to third parties,
is not supported by the unambiguous language under review.
Additionally, while the majority properly acknowledges that
the principles articulated by this Court in Hise v. BARC Elec.
Coop., 254 Va. 341, 492 S.E.2d 154 (1997), are applicable to
the resolution of this case, in my view, the majority’s
conclusion here creates a facially unwarranted tension between
the application of those principles in Hise and their
application here.
The transactional history which ultimately accomplished
the creation of the W&OD Trail and its use by millions of
visitors annually need not be repeated. Beyond question, the
property is of considerable value both to the Park Authority
as the fee owner and to Virginia Power as the owner of the
easement. It is axiomatic that the value of each owner’s
interest in the property would be considerably enhanced by the
right to grant telecommunications privileges along the
property to third parties. In its simplest context, however,
the resolution of the parties’ dispute is a matter of
determining what property interest the parties intended to be
reserved by Virginia Power when it conveyed the fee ownership
17
of the property to the Park Authority. That interest is to be
determined from the unambiguous language in the deeds that
conveyed the property to the Park Authority. Because the
pertinent language is concededly identical in all of the
deeds, it suffices to review that language in the November 6,
1978 deed between Virginia Power and the Park Authority.
After describing the property conveyed and reciting that
the conveyance is made subject to all existing covenants,
restrictions, easements, leases, permits and licenses which
affect the property conveyed, the deed provides that:
The Authority agrees that the property hereby
conveyed shall be used for public park purposes, and
such other purposes as will not endanger or
interfere, in any manner, with the rights reserved
by [Virginia Power] hereunder, and subject to
[Virginia Power’s] rights to use such property as
described herein.
(Emphasis added).
The deed further provides, with respect to the creation
of Virginia Power’s easement, that:
[Virginia Power] reserves unto itself and to
its successors . . . the perpetual right, privilege
and easement of right of way to lay, construct,
operate and maintain one or more lines of poles,
towers, structures, cables, conduits, pipes and
mains . . . for the purpose of transmitting or
distributing electric power, for the purpose of
transporting natural gas, oil, petroleum products or
other liquids, gases or substances which can be
transported through a pipe line, and for
communication purposes, over, under and across the
property hereby conveyed.
18
(Emphasis added).
Additionally, the deed provides that:
The Authority shall not permit, assign or grant
to any other party any easements, rights, privileges
or encroachments of any nature on the property
hereby conveyed, without the prior written approval
of [Virginia Power], provided that such approval
shall not be withheld unreasonably.
(Emphasis added).
All agree that by the express language of this deed
Virginia Power reserved to itself an easement in gross. Such
an easement is “exclusive” when it “ ‘gives the owner the sole
privilege of making the uses authorized by it.’ ” Hise, 254
Va. at 344, 492 S.E.2d at 157 (quoting 5 Restatement (First)
of Property § 493 cmt. c (1944)). The plain language of the
deed reserves to Virginia Power the sole right to use the
property for the various purposes described in the language
creating the easement, including “communication purposes.”
Similar to the situation in Hise with regard to the rights
acquired in the eminent domain proceeding, nothing in the
language of this deed permits the Park Authority to use
Virginia Power’s “poles, towers, structures, cables, conduits,
pipes and mains” for any purpose. Moreover, the language
which prohibits the Park Authority from granting any other
party “any easements, rights, privileges or encroachments of
any nature on the property” without the approval of Virginia
19
Power is a clear restriction on the rights of the Park
Authority as the fee owner of the property and enforces the
conclusion that the language creating the easement reserves to
Virginia Power the sole privilege of making the uses of the
property authorized by that easement. Indeed, as between
Virginia Power and the Park Authority, this language provides
that Virginia Power has the right essentially to veto the Park
Authority’s right as the fee owner to grant such privileges,
so long as that power is reasonably exercised.
Notwithstanding this clear language, the majority reasons
that because “a large number of pre-existing licenses and
leases . . . encumbered both the fee conveyed to the Park
Authority and the easement retained by Virginia Power . . .
the telecommunications usage was not exclusive to Virginia
Power.” I must respectfully submit that this reasoning is
flawed. It is true that the fee ownership of the property was
conveyed to the Park Authority subject to these pre-existing
licenses and leases and, thus, that ownership was encumbered.
It does not follow that the use of the easement retained by
Virginia Power was also encumbered so as to deprive Virginia
Power of the sole privilege of making the uses authorized by
the language of the easement. See Hise, 254 Va. at 346, 492
S.E.2d at 157. These licenses and leases represent rights of
third parties with regard to the Park Authority’s rights as
20
the fee owner; they do not represent a limitation of the right
of Virginia Power to the uses authorized by its easement.
For these reasons, in my view, Virginia Power’s easement
in gross is exclusive. Of course, whether that exclusive
easement is also apportionable is a separate issue.
Apportionment refers to the right of the owner of the easement
in gross to divide the easement so as to provide independent
uses or operations. Hise, 254 Va. at 345, 492 S.E.2d at 157.
There can be no dispute that the unambiguous language of the
pertinent deeds reflects the intention of the parties that the
property conveyed to the Park Authority was to be used for
public park purposes. Virginia Power retained an easement in
gross that permitted it to use its easement, among other
things, expressly for communication purposes. The Park
Authority, however, was expressly prohibited from granting
“any easements, rights, privileges or encroachments of any
nature on the property” without the approval of Virginia
Power. And neither party disputes the fact that
apportionability increases the value of the easement to its
owner, Virginia Power. Under such circumstances, there is an
inference in the usual case that the easement was intended in
its creation to be apportionable. Hise, 254 Va. at 347, 492
S.E.2d 159. Nothing in the language of the various deeds
21
under consideration refutes that inference here. Accordingly,
I would hold that Virginia Power’s easement is apportionable.
For these reasons, I would reverse the judgment of the
trial court and enter final judgment for Virginia Power.
22