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.
19