Title Insurance Client Alert – Recent Virginia Circuit Court Opinion Regarding Duties of Servient Tract Owners of an Easement

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

    The Circuit Court of Gloucester County recently granted temporary injunctive relief to the owners of a dominant estate of an easement. In Lineberry v. Andruiulli, Case No. CL22-1192 (Gloucester Cty., Dec. 16, 2022), the Court ordered the defendant servient tract owners to take both passive and active actions in granting the plaintiff dominant estate owners access to an easement along and across a tract.

    The Lineberrys, the Plaintiffs, filed suit against the Defendants, the Andriullis, for temporary and permanent injunctive relief regarding easement access to a 30-foot-wide easement right-of-way road (the “Right-of-Way”) which borders the Lineberry property a distance of over 500 feet.

    The Lineberrys purchased their waterfront property in 2006, which is adjacent to the property owned by the Andriullis.  The Lineberrys alleged the deeds in their chain of title, beginning in 1950, granted an easement of right of way over and across the Right-Of-Way. The Lineberrys’ deed stated it was granted “TOGETHER WITH AND SUBJECT TO that certain perpetual, non-exclusive easement of right of way thirty feet (30’) in width for ingress and egress to and from State Route No. 606.” The Lineberrys also alleged that the Andriullis, and all others in their chain of title deeded since 1960, have taken title “subject to” the rights of the Lineberrys and their predecessors “in” title, and to the easements which allow the Lineberrys access to the Right-of-Way anywhere their property abuts the road.

    The Lineberrys further alleged that, since the Andriullis’ purchase of their property, they have sought to restrict the Lineberrys’ access to and use of the easements, including by planting trees within the easements, erecting gates in the easements, and erecting fencing along the Lineberry and Andriulli property line, which prevents the Lineberrys from entering the easements from portions of their property. Along with a claim for a declaratory judgment and permanent injunction, the Lineberrys alleged a count of trespass against the Andriullis based on the Andriullis interfering with the Lineberrys’ property rights.

    The Andriullis, in their answer and plea in bar, denied the existence of an easement of right of way and rather contended that they had revoked the Lineberrys’ license to use the Andriullis’ Right-of-Way road. The Andriullis argued that the issue before the Court was whether an easement across a private road is equivalent to one along a private road. They alleged that, as the servient owners of the tract, the Andriullis had the right to determine at what location the Lineberrys can access the Right-of-Way; thus, if anything, the Lineberrys only had one easement, of only fifteen feet wide, across the Andriullis’ property.

    The Court issued an order granting temporary injunctive relief for the Lineberrys, holding that the Lineberrys are likely to succeed on the merits of their claim, the Lineberrys are likely to suffer irreparable harm without preliminary relief, the balance of equities tip in the Lineberrys’ favor, and a temporary injunction is in the public interest. Specifically, the Court ordered the Andriullis to (1) remove all fencing and other obstructions placed since September 2022 along the property line, (2) leave open at all times the gate they installed on the Right-of-Way, (3) refrain from “interfering in any manner whatsoever” with the Lineberrys’ use and enjoyment of each easement, and (4) smooth out or level any berm or mound of dirt placed since October 2022 in the road south of the Lineberrys’ property.

    This order notably requires the Andriullis, the servient tract owners, to take active steps in clearing and maintaining the easement, which is both along and across the Right-of Way, allowing the Lineberrys to access the Right-of-Way at any point they choose. While only a temporary injunction, this opinion shows the Court’s desire to protect the use of and access to easements against servient tract owners’ attempts to restrict access at any point along the length of the access easement.

    Jim Windsor would like to express his appreciation to Breckenridge Ingles with Martin, Ingles & Hensley in Gloucester, VA, for sharing this significant, well-reasoned opinion.  If you have any questions regarding this opinion on servient tract owner responsibilities, 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

    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.