Title Insurance Client Alert – Court of Appeals of Virginia Holds Proof of the Physical Location of an Easement is a Necessary Element of an Implied Easement

    By Catrina C. Waltz, James L. Windsor, Real Estate Claims & Title Insurance Solutions

    Yesterday, the Court of Appeals of Virginia held that, in order to establish an implied easement, a party must prove the physical location of the easement. In Thomas E. Morris, et al. v. Anthony Heath Parker, et al.Record No. 1700-22-1 (Ct. App. Va. Jan. 23, 2024), the Court affirmed a ruling from the Circuit Court of the City of Chesapeake, which denied the Morrises’ claim for an implied easement over a right of way allegedly abutting their property.

    In 1998, the Morrises purchased a tract of land consisting of two parcels, Parcels 3 and 5. Their 1998 deed incorporated a land survey, which showed a right of way named “Flurry Road” bordering the east side of Parcel 5. More recent land records identify Flurry Road as “Fluridy Road.”

    In 2003, the Parkers purchased two parcels of land on the other side of Fluridy Road. The Parkers access their property via a gravel road, which they allege is depicted on the plat attached to their deed as entirely on their property.

    In 2017, the Morrises re-subdivided their property to eliminate Parcel 5 and create Parcel 5-A, which borders Fluridy Road. They wanted to sell Parcel 5-A and install a driveway connecting Parcel 5-A to the gravel road used by the Parkers. Mr. Parker told Mr. Morris that the gravel road was the Parkers’ property and refused to allow the Morrises to install the driveway. Thereafter, the Morrises filed a declaratory judgment action against the Parkers, seeking an order confirming the Morrises’ right to use the gravel road to access their property and enjoining the Parkers from interfering with that right.

    The Morrises moved for summary judgment, arguing the undisputed evidence proved the Morrises had an implied easement across the gravel road such that the Parkers could not deny them access. In opposition, the Parkers argued the Morrises failed to prove a “reasonably accurate description of the location of the easement.” The court agreed and denied the Morrises’ motion.

    At trial, the Morrises introduced evidence from a title examiner, who testified that, in her expert opinion, neither party owned the platted Fluridy Road. She did not testify about the physical location of the road on the ground, only about its location as platted in the land records. Further, when the Morrises introduced a photograph of the Fluridy Road street sign on the gravel road leading to the Parkers’ residence, Mr. Morris testified that he did not know whether the gravel road was “in the same place” as the platted Fluridy Road.

    Meanwhile, the Parkers disputed that the gravel road was the same as the platted Fluridy Road, maintaining the platted Fluridy Road is actually an undeveloped ditch that separates the parties’ properties. Neither party presented testimony from a surveyor as to whether the platted Fluridy Road matches any current physical location on the parties’ properties.

    In analyzing the Morrises’ claim to establish an implied easement, the trial court applied a three-prong test: “(1) the dominant and servient tracts originated from a common grantor, (2) the use was in existence at the time of the severance, and that (3) the use is apparent, continuous, and reasonably necessary for the enjoyment of the dominant tract.” The circuit court held there was no evidence of the second or third elements and dismissed the matter with prejudice. The Morrises appealed the final order, arguing that the court erred by holding the Morrises must establish necessity and prior use in order to establish the implied easement.

    Based on a “right-result-different-reason principle,” the Court of Appeals affirmed the lower court’s holding. Rather than considering whether the circuit court erred in requiring the Morrises to establish necessity and prior use, the Court held that it was not necessary to reach that analysis, because the Morrises failed in the first place to establish the physical location of the purported easement.

    The Court found the Morrises presented insufficient proof to link the gravel road to the platted Fluridy Road, thereby failing to prove a “key threshold fact: the physical location of their claimed easement.” The Court pointed out that neither the land records nor the title examiner’s testimony established that the platted road is the actual gravel road. While acknowledging the evidence that the gravel road has a street sign that reads “Fluridy Road,” the Court held that because the Morrises offered no testimony as to the history of the sign, a fact finder could only conclude through speculation that the gravel road is the platted Fluridy Road. The Court also noted that while the failure to present testimony from a surveyor is not per se fatal to an implied easement claim, the Morrises’ failure to present any surveyor testimony here was fatal due to the significant evidentiary gap regarding the physical location of the easement.

    Basing its holding on the “best and narrowest ground,” the Court of Appeals held that because “nothing sufficiently linked the platted right of way to an actual location,” there was no support in the record for a decision to grant access to an implied easement. Thus, the Morrises’ failure to prove the location of the claimed easement necessitated affirming the trial court’s holding, albeit for a different reason, which denied the existence of an easement.

    This opinion makes it clear that in order for a court to find an implied easement, a party must first prove the purported easement’s physical location on the property. If you have any questions regarding this opinion on implied easements, or title and real property questions in general, please contact Jim Windsor at (757) 873.6308 or, or Catrina Waltz at (804) 771.5744 or ccwaltz​@​

    The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2024.