Walton v. Capital Land, Inc.

Present: All the Justices

NORMAN E. WALTON

v. Record No. 952244 OPINION BY JUSTICE ELIZABETH B. LACY
November 1, 1996
CAPITAL LAND, INC.

FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge

In this appeal, we determine the scope of an easement

described as an "exclusive easement of right of way."

In 1980, Willow Investment Corporation conveyed a tract of

land east of Overhill Lake in Hanover County to Norman E. Walton.

The grantor reserved an easement in gross described as
AN EXCLUSIVE EASEMENT OF RIGHT OF WAY FOR PURPOSE OF
INGRESS AND EGRESS TO STATE ROUTE 33, FIFTY FOOT (50')
IN WIDTH ALONG THE ENTIRE NORTHERN BOUNDARY OF THE
PROPERTY HEREIN CONVEYED.

Capital Land, Inc. (Capital) subsequently acquired an adjacent

tract consisting of 34.028 acres including Overhill Lake and

acquired the easement in gross over Walton's land. Capital

operates a recreational facility on its tract and approximately

30,000 patrons use the easement each year.

In 1990, Capital filed this action against Walton, alleging

that Walton erected a barricade across the easement, harassed

those trying to use the easement, and blocked drainage through

his property in order to flood the easement. Capital sought to

enjoin Walton from interfering with the free and unfettered

access of Capital and its patrons to its property. Capital also

sought a declaratory judgment that it had the exclusive right to

use the easement, including the ability to exclude Walton's use
of the easement. 1

The trial court granted a temporary injunction and referred

the matter to a commissioner in chancery to determine the rights

and interests of the parties. The commissioner concluded that

the easement gave Capital the exclusive right to grant to anyone

it chose the authority to use the easement for ingress and

egress, but that the easement was not a grant of a fee. The

commissioner found that Walton, as the owner of the fee, retained

the right to use the easement area but could not use it in a

manner which interfered with Capital's rights in the easement.
Capital filed exceptions to the commissioner's report,

challenging his determination that Walton could continue to use

the area encumbered by the exclusive easement. The trial court

sustained Capital's exceptions and entered an order declaring

that Capital has the exclusive right to determine who may use the

exclusive easement and may exclude the owner of the servient

estate, Walton. We awarded Walton an appeal to consider the

scope of the easement.

In determining the scope of an easement, we have repeatedly

held that the owner of the servient estate retains the right to

1
The northern 20 feet of Walton's property is also subject
to a non-exclusive right of way easement created in 1956. Both
Walton and Capital are entitled to use this non-exclusive
easement and Capital did not challenge Walton's right to use
the northern 20 feet of the 50 foot easement created in 1980.
Therefore, this opinion only addresses the parties' respective
rights to use of the southern 30 feet of the 50 foot easement.

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use his land in any manner which does not unreasonably interfere

with the use granted in the easement. Preshlock v. Brenner, 234

Va. 407, 410, 362 S.E.2d 696, 698 (1987); Brown v. Haley, 233 Va.

210, 216, 355 S.E.2d 563, 568 (1987); Hartsock v. Powell, 199 Va.

320, 324, 99 S.E.2d 581, 585 (1957). None of our prior cases,

however, specifically addresses the legal right of the easement

owner to exclude the servient owner's use of the land based on

the phrase "exclusive easement" in the language creating the

easement.
Ruling that the language creating the easement was

unambiguous, the trial court looked to the dictionary definition

of "exclusive" and concluded that the phrase "exclusive easement"

gives the easement owner the legal right to control who may use

the easement, including the legal right to exclude the servient

landowner from using the easement. 2 The trial court's resolution

of the issue effectively transmuted a grant of an easement into

the grant of a possessory interest or an estate by allowing the

owner of the easement to deprive the servient estate owner of the

use of his land.

If a conveyance grants the right to exclusive use of all or

part of the servient estate for all purposes, the owner of the
servient estate is stripped of his right to use the land.

Conveyances of this sort are generally considered to effectively
2
Walton did not assign error to the trial court's
determination that the language creating the easement was
unambiguous.

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transfer an interest in fee, not an easement, and are not

favored. If, however, the conveyance limits exclusive use of all

or part of the servient estate to a particular purpose, the

conveyance is an easement and the servient landowner retains the

right to use the land in ways not inconsistent with the uses

granted in the easement. Restatement of Property § 471, cmt. a,

b, e (1944); 7 Thompson on Real Property, Thomas Edition (David

A. Thomas ed. 1994) § 60.04(b)(1)-(2).
In this case, the language creating the easement limited its

use in two ways. First, the easement is limited to use as a

"right of way" and second, the right of way can only be used for

the "purpose of ingress and egress to State Route 33." This

limiting language is consistent with the category of conveyances

which are true easements and leaves the servient owner with the

right to use his land in a manner not inconsistent with the

nature of the uses granted to the owner of the easement.

Accordingly, we will reverse that portion of the judgment of

the trial court sustaining Capital's exceptions to the report of

the commissioner and its holding that Capital has the right to

exclude the owner of the servient tract from using the easement.

We will enter final judgment here specifying that Walton retains

the right to use the easement but in a manner that does not

interfere with Capital's right to use the easement for the

purpose of ingress and egress to State Route 33.
Reversed in part,
and final judgment.

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