Title Insurance Client Alert – New Court of Appeals of Virginia Opinion Regarding Key Requirements To Prove, And Rebut, The Existence Of An Easement By Prescription

    By James L. Windsor, Clark J. Belote, Real Estate Claims & Title Insurance Solutions

    Yesterday, the Court of Appeals of Virginia addressed key requirements to prove, and rebut, the existence of an easement by prescription in Boxley v. Crouse, Record No. 0183-23-3, available here. Most notably, the Court of Appeals reiterated (and subtly questioned) the longstanding Supreme Court of Virginia rule that circumstantial evidence alone cannot be used to overcome the presumption that an open and continuous use of a right-of-way was without permission.

    Boxley and the Crouses owned adjoining parcels of land in Highland County. To access the Crouse property from the public highway, the Crouses had to turn from the road and then onto “Hawk Trail.” Hawk Trail cuts across two properties: the Snow property (not at issue in this appeal) and the Boxley property.

    In 2020, following the death of the prior owner of the Boxley parcel, Boxley installed a new lock on a gate on Hawk Trail and did not provide the Crouses with a key. The Crouses filed suit against Boxley seeking a declaratory judgment establishing a prescriptive easement across Hawk Trail as well as an injunction seeking the removal of the gate. Following a bench trial, the trial court found in favor of the Crouses and ordered removal of the gate.

    “The claimant of a prescriptive easement . . . must prove by clear and convincing evidence that ‘the claimant’s use of the [property] in question was adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the land over which it passes, and that the use has continued for at least 20 years.’” Slip Op. at 3 (quoting Amstutz v. Everett Jones Lumber Corp., 268 Va. 551, 559 (2004)).

    On appeal, Boxley argued that (1) the Crouses failed to prove the “continuous and uninterrupted” element because Boxley’s predecessor erected a gate in 1995; and second, that the Crouses failed to prove that their use was hostile because Boxley’s predecessor gave the Crouses permission to use Hawk Trail by providing them a key to the gate.

    The trial court and the Court of Appeals rejected both arguments. First, the Court held that “[f]or a use to be continuous, it need not be ‘daily, weekly, or even monthly.’” Slip Op. at3-4 (quoting Ward v. Harper, 234 Va. 68, 72 (1987)). Instead, the “use must only be of such frequency and continuity as to give reasonable notice to the landowner that [such a] right is being exercised against him.” Id. at 4 (citation omitted) (emphasis added). Installation of an unlocked gate did not interrupt the use.

    Second, the Court held that “[t]he claimant need not make a hostile intention express.” Id. at 5. “Actual occupation, use, and improvement of the property by the claimant, as if he were in fact the owner, is conduct that can prove a claim of right.” Id. (citations omitted). Although permission negates hostility, if the claimant’s use “was open, visible, and continuous throughout the required prescriptive period, the claimant is entitled to a presumption that the use arose adversely or under a claim of right.” Id. (citations omitted) (emphasis added). Once the presumption arises, the burden shifts to the owner of the servient tract to rebut it, but “the owner of the servient estate may not rebut this presumption by relying solely on circumstantial evidence.” Id. (citing Causey v. Lanigan, 208 Va. 587, 593 (1968)) (emphasis added). Mailing of a key to the unlocked gate was mere circumstantial evidence of permission insufficient to overcome the hostility presumption.

    In a footnote, the Court noted: “It is not immediately apparent why circumstantial evidence is insufficient to rebut the presumption of adverse use in the prescriptive easement context. . . . Nonetheless, this Court is bound by the clear precedent established by our Supreme Court, and we cannot deviate from the rule clearly established in Causey and Horn.” Maybe this question will make this one especially ripe for review before the Supreme Court of Virginia. Stay tuned.

    Remember: You need more than circumstantial evidence to rebut the presumption of adverse use in the prescriptive easement context and factual findings are difficult to reverse on appeal.

    If you have any questions regarding this opinion on the key requirements to prove, and rebut, the existence of an easement by prescription in Virginia, or title and real property issues in general, please contact Jim Windsor at (757) 873-6308 or, or Clark Belote at (757) 624-3109 or

    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.