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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