Present: All the Justices
RICKY WILLIAM NELSON, ET AL.
v. Record No. 001711 OPINION BY JUSTICE DONALD W. LEMONS
June 8, 2001
LAUREL A. DAVIS
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
In this appeal, we consider whether the trial court erred
in denying Ricky William Nelson’s and Dana Ann Nelson’s
(“Nelsons”) motion for a permanent injunction and dissolving a
temporary injunction which enjoined Laurel A. Davis (“Davis”)
from interfering with the Nelsons’ use of a gravel driveway
over the Davis property.
I. Facts and Procedural History 1
Davis acquired title to a parcel of property (“Davis
property”) on May 3, 1996 by deed (“Davis deed”) from Rachel
Baughman. The Davis property contains approximately 3.3 acres
on the south side of and adjoining State Route 715 (“Route
715”) in Albemarle County. The Davis deed incorporates, as a
description of the property conveyed, a plat of record in the
clerk’s office of the Circuit Court of Albemarle County. This
plat, prepared by Arthur F. Edwards and dated July 31, 1991
(“Edwards plat”), includes in the description of the property
1
No transcript of the proceedings below was provided.
Instead, a “Statement of Facts, Testimony and Other Incidents
of the Case” was made a part of the record. See Rule 5:11(c).
a gravel road running from Route 715 along the eastern border
of the property onto a parcel, now owned by the Nelsons, to
the rear of, and adjoining the Davis property.
The Nelsons acquired title to an approximately three-acre
parcel of property (“Nelson property”) located in Albemarle
County on April 19, 1999 by deed (“Nelson deed”) from William
E. Johns, Juanita A. Lee, and Robin A. Lee. The Nelson
property, located in the rear of and adjacent to the Davis
property, is more particularly described by a plat prepared by
Robert L. Lum and dated May 11, 1988 (“Lum plat”). The Lum
plat shows the same gravel road as that described on the
Edwards plat.
The gravel road shown on both the Edwards plat and the
Lum plat is also indicated on Albemarle County Tax Map Section
121 (“tax map”) as running along the boundary between tax
parcels 24A and 28, and running from State Route 715 to tax
parcel 25A. The Nelson property is parcel 25A, and the Davis
property is parcel 24A. Directly to the east of the Davis
property and north of the Nelson property is parcel 28, owned
by Walker W. Jones and Evelyn A. Jones (“Joneses”). The tax
map does not reveal any other roads serving the Nelson
property.
After purchasing their property, the Nelsons were advised
by Davis that they could not use the gravel road on her
2
property to access their property. When the Nelsons continued
to use this road, Davis parked a vehicle in the road, dumped
brush in the road, and placed a chain barrier across the road
to prevent the Nelsons from traversing it.
On December 27, 1999, the Nelsons filed a motion for a
preliminary injunction, later to be merged into a permanent
injunction, against Davis. The Nelsons sought to enjoin Davis
from interfering with their use of the gravel road for ingress
to and egress from their property.
The trial court held an ore tenus hearing on February 3,
2000 at which time it received into evidence the deeds and
plats of the Nelson and Davis properties. Additionally, the
trial court heard testimony from the Nelsons, D. W.
Crickenberger (“Crickenberger”), a relative of the Nelsons and
owner of property adjacent to and located to the south of the
Nelson property, and Anna Nelson (no relation to the
litigants), who had lived on the Davis property in the 1960’s
and had resided in the immediate area all her life. Based
upon the evidence presented, the trial court issued a decree
granting the Nelsons’ motion for a temporary injunction and
set the matter for trial on February 22, 2000.
At trial, additional evidence regarding the use of the
road in question was received. Gary Turner (“Turner”), age
44, testified that he had lived in the area all his life. He
3
stated that the road had been in existence for as long as he
could recall and that he, along with many others, had used the
road as access to the property behind the Davis property.
Turner further testified that he used the road to access the
Nelson property when he was a tenant on the property before it
was sold to the Nelsons.
Anna Nelson, age 81, testified that she had lived in the
area her entire life and that the road had been in existence
as long as she could remember. She also stated that during
the 1960’s she lived on the Davis property and that the road
was used by many people as access to the property behind the
Davis property.
Crickenberger, Dana Nelson’s father, who owned the
property adjacent to the Nelsons, testified that he had
resided in the area for many years. He stated that the road
had been in existence for as long as he could recall and that
it was the sole means of access to the Nelson property.
David Dykes (“Dykes”), a title examiner without any legal
training, testified on behalf of Davis as to the existence of
a deed, dated June 7, 1965, conveying property from Pencie J.
Agee and Joe J. Agee to the Joneses (“Jones deed”). This deed
was made subject to a right of way granted to Joe J. Agee.
The Jones deed described this as “a right of way for ingress
and egress 12 feet in width along the west boundary of the
4
property hereby conveyed to State Route 714, for the benefit
of the land of the said Joe J. Agee adjoining the property
hereby conveyed on the south.” 2 Based on this information,
Dykes concluded that the right of way described was intended
to be over property owned by the Joneses and not the Davis
property. Additionally, Dykes testified that the gravel road
in question was the only road in the area that matched the
description of the road in the Jones deed and the tax map. He
further stated that he could find no record of any other road
that served the Nelson property.
On February 28, 2000, the trial court issued a letter
opinion in which it concluded that the Nelsons had not met
their burden of proving an express easement over the Davis
property. Additionally, the trial court ruled that the
Nelsons had failed to establish that there was adverse use for
the 20 years necessary to establish an easement by
prescription. An April 17, 2000 order, incorporating the
letter opinion, dissolved the temporary injunction and denied
the Nelsons’ motion for a permanent injunction. The Nelsons
appeal the adverse rulings of the trial court.
II. Standard of Review
2
Reference in the Jones deed to “Route 714” is obviously
a typographical error. The state route in question is Route
715.
5
The standard of review on appeal is well settled. “A
finding of the chancellor on conflicting evidence, heard ore
tenus, carries the same weight as a jury’s verdict and will
not be disturbed on appeal unless it is plainly wrong or
without evidence to support it.” Willis v. Magette, 254 Va.
198, 201, 491 S.E.2d 735, 736 (1997)(citations omitted).
III. Analysis
On appeal, the Nelsons contend that the trial court erred
in ruling that they were not entitled to a presumption that
their use of the easement was under a claim of right, and that
Davis did not have the burden of rebutting the presumption. 3
“Easements may be created by express grant or
reservation, by implication, by estoppel or by prescription.”
Bunn v. Offutt, 216 Va. 681, 684, 222 S.E.2d 522, 525 (1976).
The general principles of law governing easements by
prescription are well settled.
In order to establish a private right of
way over lands of others by prescription,
the claimant must prove that his use of
the roadway was adverse, under a claim of
right, exclusive, continuous,
uninterrupted, and with the knowledge and
3
The Nelsons’ first three assignments of error address
these two issues. In their fourth assignment of error, they
also argue that the trial court erred in ruling that there was
no implied covenant that a right of way across the Davis
property existed. The trial court made no ruling on this
issue and the Nelsons did not make this objection to the trial
court’s April 17, 2000 order. Consequently, the issue is not
before us. See Rule 5:25.
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acquiescence of the owners of the land
over which it passes, and that the use has
continued for a period of at least 20
years. Where there has been an open,
visible, continuous and unmolested use of
a road across the land of another for at
least twenty years, the use will be
presumed to be under claim of right, and
places upon the owner of the servient
estate the burden of rebutting this
presumption by showing that the use was
permissive, and not under claim of right.
Pettus v. Keeling, 232 Va. 483, 485, 352 S.E.2d 321, 323-24
(1987) (internal citations and quotation marks omitted). The
claimants must present clear and convincing evidence to
establish an easement by prescription. Ward v. Harper, 234
Va. 68, 70, 360 S.E.2d 179, 181 (1987).
The trial court, relying upon our decision in Chaney v.
Haynes, 250 Va. 155, 458 S.E.2d 451 (1995), held that the
Nelsons failed to establish a prescriptive easement because
“the evidence discloses that there was a mistaken belief that
there was a recorded right-of-way at the location noted over
[Parcel] 24A, when in fact the express granted easement was
over Parcel 28.” In Chaney, we held that the claimants failed
to prove that a prescriptive easement was established because
“[u]se of property, under the mistaken belief of a recorded
right, cannot be adverse as long as such mistake continues.”
Id. at 159, 458 S.E.2d at 453 (citations omitted). The facts
of the present case are different from those in Chaney. The
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claimants in Chaney asserted that their right of way derived
from an express easement and that a prescriptive easement
arose from exclusive, continuous, and uninterrupted use of
that right of way under a mistaken belief that it was over the
property described in the express easement. Id. at 158-59,
458 S.E.2d at 453-54. The limited record before us in the
present case reveals no evidence presented to the trial court
that anyone using the gravel road in question did so under a
mistaken belief that there was an express easement. The only
evidence of mistake comes from Dykes’ testimony that the
gravel road was over the Jones property and not the Davis
property. Accordingly, the trial court erred in holding that
the use of the gravel road was under a mistaken belief that
there was an express easement and that any mistake due to the
presence of a gravel road on the Edwards plat precluded
finding a prescriptive easement. 4
On appeal, Davis claims that the Nelsons did not meet
their burden of proof to demonstrate exclusivity of use and
consequently, were not entitled to the presumption of adverse
use. As we stated in Callahan v. White, 238 Va. 10, 13, 381
S.E.2d 1, 3 (1989), “where the essential element of
exclusiveness is lacking, no presumption of a claim of right
4
During oral argument, Davis conceded that the trial
court erred in holding that a mistake in the Edwards plat
8
arises from evidence of long use.” In Pettus, 232 Va. at 486,
352 S.E.2d at 324 (citing Burks Brothers of Va., Inc. v.
Jones, 232 Va. 238, 246, 349 S.E.2d 134, 139 (1986)), we
stated:
[W]here the use of a roadway by persons
owning property in the immediate area has
been in common with use of the way by
members of the general public, the
essential element of exclusiveness is
lacking because the use of the way is
dependent upon the enjoyment of similar
rights by others.
However, “when each landowner asserts his own right to use the
way, independent of all others, and no rights are dependent
upon the common enjoyment of similar rights by others,
prescriptive rights may arise.” Ward, 234 Va. at 71, 360
S.E.2d at 181. Thus, “when each user independently asserts
his right to enjoy the way for himself, such use is exclusive
even though others assert similar rights for themselves.”
Pettus, 232 Va. at 486, 352 S.E.2d at 324 (citations and
quotation marks omitted).
Even viewing the evidence in the light most favorable to
Davis, as we must upon appellate review, the Nelsons
established by clear and convincing evidence that use of the
road across the Davis property had been open, visible,
continuous, exclusive, and unmolested for at least 20 years.
necessarily precluded a finding of a prescriptive easement.
9
Such proof entitled the Nelsons to the presumption of adverse
use. Upon establishing the presumption, the burden shifted to
Davis to rebut the claim of adverse use. Other than the title
examiner, Davis offered no evidence in rebuttal. There was no
direct evidence of permissive use. See Causey v. Lanigan, 208
Va. 587, 593, 159 S.E.2d 655, 660 (1968). 5
IV. Conclusion
The trial court erred in finding that the use of the
gravel road was under a mistaken belief of an express easement
and that any mistake in the Edwards plat precluded a finding
of a prescriptive easement. Further, we hold that the Nelsons
presented clear and convincing evidence of open, visible,
continuous, exclusive, and unmolested use of the gravel road
across the Davis property for at least 20 years. The Nelsons
established the presumption of adverse use and it was
unrebutted by any evidence from Davis concerning permissive
use. We hold that on the evidence presented, applying the
proper burden of proof and presumptions accorded to the
Nelsons, the Nelsons established by clear and convincing
evidence a prescriptive easement over the Davis property.
5
Inexplicably, the letter opinion of the trial court
stated that, “[t]he evidence in the case was that there was
permissive use by many people in the area.” The “Statement of
Facts, Testimony and Other Incidents of the Case” stated that,
“[n]one of the witnesses testifying at the ore tenus hearing
10
Accordingly, we will reverse and vacate the judgment of the
trial court and will remand with directions to enter judgment
for the Nelsons and for such further relief as may be
necessary.
Reversed and remanded.
offered any testimony as to any person who ever asked
permission of anyone to use said road.”
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