Hudson v. Pillow

Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ.

ROY HUDSON, ET AL.

v. Record No. 000835 OPINION BY JUSTICE CYNTHIA D. KINSER
March 2, 2001
RUTH M. PILLOW, ET AL.

FROM THE CIRCUIT COURT OF AMHERST COUNTY
Thomas A. Fortkort, Judge Designate

This appeal involves the question whether an old road

known as the “Free Hollow Road” has been abandoned. That

road ran through a farm known as “Rose Hill” and allegedly

provided a means of ingress to and egress from a tract of

land known as “Free Hollow.” Because we find sufficient

evidence to support the circuit court’s judgment that the

Free Hollow Road has been abandoned, we will affirm that

judgment.

MATERIAL PROCEEDINGS

By deed dated November 25, 1865, and recorded in

Amherst County, the Free Hollow tract of land, containing

approximately 213 acres, was conveyed to 17 individuals

pursuant to the terms of the will of Robert Tinsley. A

portion of that tract is now owned by the appellants, Roy

Hudson, Danny Melvin Carwile, and S. Vance Wilkins, Jr.,
(hereinafter referred to as “the plaintiffs”). 1 The Free

Hollow tract adjoins the Rose Hill farm. The appellees,

Ruth Myra Richeson Pillow, and her husband, John L. Pillow;

and Nell Richeson Cordick and her husband, Leonard Eugene

Cordick (hereinafter referred to as “the defendants”), are

the owners of the Rose Hill farm (also referred to as “the

Richeson property”). 2

The plaintiffs filed a “Bill of Complaint and Motion

for Injunctive Relief,” requesting that a right of way be

recognized across the defendants’ property and an

injunction be issued to allow ingress to and egress from

the plaintiffs’ property. After hearing evidence and

viewing the property, the chancellor issued a letter

opinion. 3 The chancellor found that no one has lived in

Free Hollow since the 1960’s and that the Free Hollow Road

is overgrown with heavy brush and large trees, “accessible

1
The plaintiffs acquired their respective portions of
the Free Hollow property primarily from the Commonwealth of
Virginia, after the parcels had been escheated to the
Commonwealth.
2
The defendants acquired the Rose Hill farm from the
heirs and devisees of W. H. Richeson, Sr., in November
1989. Ruth and Nell are granddaughters of W. H. Richeson,
Sr.
3
At an ore tenus hearing, the chancellor made certain
findings from the bench and concluded that a right of way
does not currently exist across the Rose Hill farm. The
plaintiffs then filed a motion to reconsider. After

2
only by a determined pedestrian.” The chancellor also

found that Ramey Richeson, who formerly owned an interest

in Rose Hill, 4 maintained control over the road, and locked

the gates across it to prevent ingress and egress.

In a final decree incorporating the letter opinion,

the chancellor made the following findings:

The plaintiffs sustained their burden of proving
a prescriptive easement over the old “Free Hollow
Road” from Free Hollow to the location of present day
State Route 714 near its intersection with State Route
615. However, clear and unequivocal evidence
indicates non-use of the easement coupled with acts
which indicate an intention to abandon or which
evidence adverse use by the owners of the servient
estate (Rose Hill) acquiesced in by owners of the
dominant estate (Free Hollow) constituting abandonment
of said old “Free Hollow Road.”

Accordingly, the chancellor concluded that no easement

presently exists from the Free Hollow tract across the Rose

Hill farm and dismissed the bill of complaint. We awarded

the plaintiffs this appeal.

FACTS

The dispositive issue on appeal concerns the

chancellor’s finding that the easement across the Rose Hill

farm has been abandoned. Thus, we will summarize the facts

hearing additional testimony, the chancellor issued his
letter opinion.
4
Ramey is one of the sons of W. H. Richeson, Sr.
Ramey conveyed his interest in the Rose Hill farm to the
defendants.

3
relevant to that issue, and in doing so, will present those

facts, and all inferences fairly deducible from them, in

the light most favorable to the defendants, the prevailing

parties on that issue. Prospect Dev. Co. v. Bershader, 258

Va. 75, 80, 515 S.E.2d 291, 294 (1999).

Since the early 1960’s, no one has resided on the Free

Hollow property. According to Hugh A. Richeson, anyone who

has traveled across the Richeson property to access the

Free Hollow property since then has done so only after

first getting permission from some member of his family. 5

Hugh’s niece, Ruth Richeson Pillow, likewise stated that,

in her lifetime, no one has used the old road across the

Rose Hill farm to access Free Hollow without getting

permission from her father, W. H. Richeson, Jr., or her

uncle, Ramey Richeson.

Hugh further testified that, after his father died in

1962, his younger brother, Ramey, took over the farm and,

sometime in the late 1960’s, locked all the gates at the

entrances to the Rose Hill farm. Hugh’s sister, Sarah

Richeson Gordon, also testified that the gates on the Rose

Hill farm were locked after her father’s death in 1962.

5
Hugh is also one of the sons of W. H. Richeson, Sr.
Hugh likewise conveyed his interest in the Rose Hill farm
to the defendants.

4
Similarly, Ramey’s daughter, Martha Richeson Preddy, stated

that, during the years before she graduated from high

school in 1966, the gates on the roads into Rose Hill from

State Routes 615 and 714 were locked and that her father

had the keys to the locks. She also remembered that the

property was posted with “[n]o hunting” and “no

trespassing” signs. 6 In fact, she and other members of the

Richeson family testified that they had never heard of the

term “Free Hollow Road” until this litigation commenced.

Calvin Bailey, who owns a parcel in Free Hollow, also had

not heard the name “Free Hollow Road.” Bailey stated that

he just knew about a farm road that ran through the

Richeson property.

John L. Pillow, one of the defendants, testified that,

when he and his wife purchased the Rose Hill farm in 1989,

there were locks on the gates and that he has kept the

gates locked continuously since then. He also stated that

large trees, probably 25 to 50 years old, were located in

the old roadbed and that, while some portions of the road

were passable, other parts contained creeks and a beaver

swamp.

6
The defendants introduced receipts showing the
purchase of locks in 1965, 1966, and 1975, and posted signs
in 1969, by W. H. Richeson, Jr. He helped Ramey farm the
Richeson property after W. H. Richeson, Sr., died.

5
 Several witnesses testifying for the plaintiffs

remembered using the road across the Rose Hill farm about

50 years ago for the purpose of cutting timber on the Free

Hollow property. More recently, Chris Alfred Rose cut

timber in Free Hollow for about three months in 1988. Rose

stated that, during that time, he never saw any locks on

the gates that were located on the road running through the

Rose Hill farm to Free Hollow. Roy Hudson also testified

that, when he first went onto the Free Hollow property

around 1965, he did not see any locks on the gates leading

into the Free Hollow Road. In fact, Hudson stated that he

had not seen locks on the gates until he purchased a

portion of the Free Hollow property in 1995.

S. Vance Wilkins, Jr., one of the plaintiffs, first

purchased a tract of land in Free Hollow in 1966. Wilkins

testified that, when he told Ramey Richeson about the

purchase, Ramey volunteered to show Wilkins where the right

of way across the Richeson property was located. According

to Wilkins, Ramey drove him along the road and while doing

so stated, “Here is where the right of way is. The old

right of way used to be over here. This is what we use

now. This is what you use.” Wilkins denied getting

permission from Ramey to use the road across the Rose Hill

farm to access his property in Free Hollow and stated that,

6
when he went hunting on his property between approximately

1966 and 1986, the gate through which he entered the Free

Hollow Road was not locked.

However, another witness, William Boyd Sale, testified

that he asked Ramey for permission to travel across the

Rose Hill farm when Sale was cutting timber in Free Hollow

around 1987. Likewise, Harry B. Stinnett, Jr., confirmed

that Ramey kept the gates locked and controlled access to

the road across the Richeson property to Free Hollow.

ANALYSIS

Before addressing the merits of the issue before us,

we must consider the defendants’ motion to dismiss this

appeal. That motion is premised on the fact that the

plaintiffs changed the wording of their assignments of

error. 7 Because the original assignment of error number 2

7
The assignments of error set forth in the petition
for appeal were:
1. The trial court erred in finding that the
Appellants bore the burden of proving that their use
of the Free Hollow road continued in its historical or
modified location, after the Court found that a right
of way by adverse possession had been established by
the Appellants.
2. The trial court erred in denying Appellants’ Bill
of Complaint for injunction relief seeking use of the
Free Hollow road by holding that the Appellants did
not meet their burden of proof regarding (a)
abandonment by Appellants, (b) permissive use by
Appellants or (c) adverse possession by the Appellees
of Appellants’ right of way.

7
and assignment of error number 1 on brief both raise the

question whether there was sufficient evidence to support

the chancellor’s finding that the prescriptive easement

over Free Hollow Road has been abandoned, we will deny the

motion to dismiss as to that issue. Unlike the situation

in Hamilton Dev. Co. v. Broad Rock Club, Inc., 248 Va. 40,

44, 445 S.E.2d 140, 143 (1994), the modification of this

assignment of error has not enabled the plaintiffs to argue

either a different question on appeal or an issue not

presented to the chancellor. However, assignment of error

number 2 on brief is entirely different than the original

assignment of error number 4. Consequently, we will not

consider that assignment of error. 8 See id.

3. The trial court erred in its finding of fact
related to the testimony of Vance Wilkins and Chris
Rose regarding permissive use.
4. The trial court erred in finding that the
Appellants did not establish a right of way by
necessity or implication.
5. The trial court erred in amending its Final decree
to read “continued in a different location.”

The assignments of error contained in the plaintiffs’
brief are:
1. The trial court erred in finding that the
prescriptive easement over Free Hollow Road has been
abandoned.
2. The trial court erred by making no finding whether
the Appellants established a right of way by necessity
or implication.
8
We also note that the plaintiffs have neither briefed
nor argued their original assignments of error numbers 1,

8
 We now turn to the dispositive issue before us,

whether there was sufficient evidence to support the

chancellor’s finding that the prescriptive easement over

the Free Hollow Road has been abandoned. In addressing

that issue, we are guided by the following principles of

appellate review. The chancellor’s decision, reached after

hearing evidence ore tenus and resolving conflicts in that

evidence, carries the same weight as a jury’s verdict, and

the chancellor’s findings of fact will not be disturbed on

appeal unless they are plainly wrong or without evidence to

support them. Code § 8.01-680; Rash v. Hilb, Rogal &

Hamilton Co., 251 Va. 281, 283, 467 S.E.2d 791, 793 (1996);

Cushman Virginia Corp. v. Barnes, 204 Va. 245, 254, 129

S.E.2d 633, 640 (1963); Rogers v. Runyon, 201 Va. 814, 816,

113 S.E.2d 679, 680 (1960).

The party claiming abandonment of an easement, in this

case the defendants, has the burden to establish such

abandonment by “clear and unequivocal evidence.” Robertson

v. Robertson, 214 Va. 76, 82, 197 S.E.2d 183, 188 (1973)

(citing Lindsey v. Clark, 193 Va. 522, 525, 69 S.E.2d 342,

344 (1952)). “Nonuse of an easement coupled with acts

which evidence an intent to abandon or which evidence

3, and 5. Thus, we will not consider them. Jenkins v.
Commonwealth, 244 Va. 445, 451, 423 S.E.2d 360, 364 (1992).

9
adverse use by the owner of the servient estate, acquiesced

in by the owner of the dominant estate, constitutes

abandonment.” 9 Robertson, 214 Va. at 81, 197 S.E.2d at 188;

accord Pizzarelle v. Dempsey, 259 Va. 521, 528, 526 S.E.2d

260, 264 (2000). If the party asserting abandonment relies

upon nonuse of the easement coupled with an adverse use by

the owner of the servient estate, that adverse use must

continue for a period of time sufficient to establish a

prescriptive right. Lindsey, 193 Va. at 525, 69 S.E.2d at

344 (citing Watts v. C.I. Johnson & Bowman Real Estate

Corp., 105 Va. 519, 525, 54 S.E. 317, 319 (1906)).

However, mere nonuse will not suffice to establish an

abandonment. Id.

The plaintiffs argue that, while the use of the Free

Hollow Road over the Rose Hill farm was sporadic after the

1960’s when the last resident left Free Hollow, there was

never a cessation of that use. They also contend that the

record is devoid of any evidence of an intent to abandon

the easement and that, while the chancellor may have found

an adverse use of the easement by the defendants, the

evidence was not “unequivocal” on that issue. Thus, the

plaintiffs assert that the defendants did not prove, by

9
In the Restatement (Third) of Property § 7.7 (2000),
the adverse use of an easement by a servient owner is

10
clear and unequivocal evidence, an abandonment of the

prescriptive easement over the Richeson property to Free

Hollow. We do not agree with the plaintiffs.

The evidence before the chancellor was disputed with

regard to the issue of abandonment. The chancellor

resolved those conflicts and concluded that the road has

been in disuse for many years, as reflected by the

overgrowth of brush and large trees in the roadway. The

chancellor further found that, after 1962, the gates

through which anyone using the Free Hollow Road would have

had to pass in order to travel over the Richeson property

to Free Hollow have been locked, and that individuals using

the road did so only with the permission of the owners of

the Richeson property. Upon our review of the record, we

cannot say that the chancellor’s findings are plainly wrong

or without evidence to support them. Those findings

establish an abandonment, i.e., nonuse of the easement

coupled with acts by the servient owners that were

“inconsistent with,” or adverse to, “the future enjoyment”

of the easement by the dominant owners for a period of time

sufficient to create a prescriptive right. Scott v. Moore,

98 Va. 668, 686, 37 S.E. 342, 348 (1900); see also

Pizzarelle, 259 Va. at 530, 526 S.E.2d at 265 (placement of

referred to as “extinguishment by prescription.”

11
fence, trees, and shrubs in easement reflect intent to

adversely use easement for purpose other than ingress and

egress). Thus, we will not disturb the chancellor’s

decision. Rash, 251 Va. at 283, 467 S.E.2d at 793.

Nevertheless, the plaintiffs argue that permission, or

lack thereof, to use the Free Hollow Road is irrelevant to

the question whether a prescriptive easement, already

established, has been abandoned. The plaintiffs contend

that permission goes to the creation of a prescriptive

easement and that, once such an easement has been

established, the question of permission is moot. We do not

agree. Once a prescriptive easement has been created, if

the servient owners then start requiring permission to use

that easement, as was done in this case, that requirement

is indicative of a measure of control over the easement

that is adverse to the enjoyment of the easement by the

dominant owners. Furthermore, the chancellor did not base

his finding of abandonment solely on the question of

permission.

The plaintiffs also assert that the chancellor rested

his decision, in part, on the fact that portions of the

Free Hollow Road had been changed. 10 In the letter opinion,

10
The evidence showed that the entrance to the Free
Hollow Road had been relocated, the original gate had been

12
the chancellor discussed the “new” road. However, in the

final decree, the chancellor found “clear and unequivocal

evidence . . . constituting abandonment of said old ‘Free

Hollow Road.’ ” That is the issue before us. While the

chancellor also found in the final decree that “[t]he

plaintiffs have not sustained their burden showing that the

right of way continued in a different location,” that issue

was contained in one of the plaintiffs’ assignments of

error that they failed to brief or argue. See note 8,

supra.

For these reasons, we will affirm the judgment of the

circuit court. 11

Affirmed.

JUSTICE LEMONS, concurring.

The discrepancy between the trial court’s letter

opinion and its Final Decree creates confusion in the

resolution of this case. The evidence in this case

concerns two separate roads, the “old Free Hollow Road” and

a deviation from that easement, variously called the “new

road” or the “farm road.”

In its Final Decree, the trial court found that:

replaced with a fence, and the course of the road had been
changed in one place.
11
In light of our decision, we do not reach the
assignments of cross error.

13
 4. The plaintiffs sustained their burden

of proving a prescriptive easement over the old

“Free Hollow Road” from Free Hollow to the

location of present day State Route 714 near its

intersection with State Route 615. However,

clear and unequivocal evidence indicates non-use

of the easement coupled with acts which indicate

an intention to abandon or which evidence adverse

use by the owners of the servient estate (Rose

Hill) acquiesced in by owners of the dominant

estate (Free Hollow) constituting abandonment of

said old “Free Hollow Road.”

5. The plaintiffs have not sustained their

burden of showing that the right of way continued

in a different location.

By contrast, in its letter opinion, referring to

the changed location, the trial court stated, “[i]t is the

Court’s finding that no easement was created by the

occasional use of this road by persons who had the

permission of the owner.” At the heart of this confusion

is the failure to clearly distinguish between moving an

existing easement and creating a new easement, and the

14
corollary problem of identifying which path of the

easement, old or new, is the focus of proof of abandonment.

The majority opinion correctly points out that we

review the judgment of the trial court which found

abandonment of the “old Free Hollow Road,” and no

establishment of Hudson’s right to utilize the “new road.”

Most of Hudson’s evidence on the subject is related to lack

of abandonment of the new road. Unfortunately, the trial

court relied upon and cited evidence concerning both roads

to support its conclusion of abandonment of the old road.

The burden of proof of abandonment of an existing

easement lies upon the party claiming the abandonment and

must be established by “clear and unequivocal” evidence.

Nonuse of an easement coupled with acts
which evidence an intent to abandon or
which evidence adverse use by the owner
of the servient estate, acquiesced in
by the owner of the dominant estate,
constitutes abandonment. The burden
rests upon the party claiming such
abandonment to prove it by clear and
unequivocal evidence. Lindsey v. Clark,
193 Va. 522, 525, 69 S.E.2d 342, 344
(1952). See also Lipscomb v. Commins,
212 Va. 543, 186 S.E.2d 74 (1972); 1
Minor [on Real Property § 109 (2d ed.
F. Ribble 1928)].

Robertson v. Robertson, 214 Va. 76, 81-82, 197 S.E.2d 183,

188 (1973).

15
 The evidentiary standard of “clear and unequivocal”

requires a different level of proof than the more familiar

standard of “clear and convincing.” Fred C. Walker Agency,

Inc. v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92

(1975). “Clear and unequivocal” is at least as high a

standard of proof as that of “beyond a reasonable doubt,”

if not higher. See Addington v. Texas, 441 U.S. 418, 432

(1979)(noting that “[t]he term ‘unequivocal,’ taken by

itself, means proof that admits of no doubt, a burden

approximating, if not exceeding, that used in criminal

cases”). Moreover, as we said in Pizzarelle v. Dempsey,

259 Va. 521, 529, 526 S.E.2d 260, 264 (2000), the evidence

is not unequivocal unless it is “free from uncertainty.”

While the evidence of abandonment of the “old Free

Hollow Road” is, as the majority correctly states,

sufficient to satisfy the heightened evidentiary burden, if

the issue were the abandonment of the “new road,” I would

find the evidence insufficient. However, the trial court’s

Final Decree recites that “[t]he plaintiffs have not

sustained their burden showing that the right of way

continued in a different location.” From this

determination, there is no assignment of error before us.

The burden of proving abandonment of the easement by

clear and unequivocal evidence is upon Pillow. The burden

16
of proving movement of the easement by the preponderance of

the evidence is upon Hudson. These are distinct issues,

both of which are addressed in the trial court’s judgment;

however, only the former is before us on appeal.

Because both the trial court and the majority opinion

mix proof of abandonment of both roads, I write separately

to distinguish precisely the narrow issue before us on

appeal, and emphasize that the heightened burden of proof

was met only as to this narrow issue.

17