Virginia Supreme Court Clarifies Easement Encroachment Standards

Last Thursday, the Supreme Court of Virginia (the “VSC”) issued an important opinion in Thibault Enterprises, LLC v. Yost concerning encroachments within an easement with a granted width and when an encroachment may remain in the granted easement, clarifying prior rulings regarding same. In this appeal, the VSC reversed the judgment of the circuit court and the Court of Appeals, ruling that such courts erred in holding the owners of the servient estate were required to remove encroachments within the granted easement.

Relevant Facts

The Yost Living Trust owns 1.08 acres of land in Dinwiddie County. David A. Yost and Caryn L. Yost live in a single-family dwelling on this land.[1] The Yosts serve as Trustees of the Yost Living Trust for the benefit of themselves. They also own an easement that grants them, in the language of the deed, “the right of ingress and egress over an outlet road, fifty (50) feet in width, running from the southwestern corner of the [Yosts’ property] to State Route #601”, (the “50-foot Easement”). The easement crosses over land owned by Thibault. To reach their house, the Yosts drive down a gravel road, which is approximately 12 feet wide. The gravel road is within the width of the 50-foot Easement. Thibault uses its land for a variety of agricultural purposes. It has placed fences with grapevines, other fences, fence poles, and hay bales within the boundaries of the 50-foot Easement to the side of the gravel road, but not in the road itself. The parties stipulated that there are also some trees within the 50-foot Easement.

The Yosts filed a complaint against Thibault alleging that the presence of these things within their easement constitutes a nuisance. They asked for “an injunction against the Defendant placing anything in the 50' Easement.” The Yosts contended they are entitled to the use of the entire 50-foot Easement, and that Thibault is not permitted to place any plants or objects within that 50-foot Easement. The Yosts acknowledged that their ingress and egress is “by and large not hampered.”

The trial/circuit court granted the injunction and prohibited Thibault from “placing any objects in the 50' easement area.” In its opinion letter, incorporated by reference into its final order, the circuit court found that, although “the grapevines and hay bales do not interfere with [the Yosts’] current use of the easement,” nevertheless “it [was] improper for Thibault to place objects in the easement.”

Thibault appealed to the Court of Appeals, which affirmed by unpublished opinion. The Court of Appeals reasoned that the hay bales and vines indisputably were placed within the 50-foot Easement, and, therefore, Thibault impermissibly “narrowed the width of the easement.”

VSC Analysis and Findings

1. Virginia law does not require the removal of all objects within an easement of a defined width.

In support of its opinion reversing the lower courts, the VSC relied on prior cases reflecting a reasonable standard, contrasting those facts with the facts in the Yost matter.

In Piney Meeting House v. Hart, 284 Va. 187 (2012), the issue involved a 30-foot “easement and right-of-way for ingress, egress, and related utilities.” The holders of the easement contended that the placement of an underground propane tank interfered with their easement. They argued that “every encroachment, no matter how minor, is material when the easement is of an express width. The VSC unambiguously answered that “[w]e do not agree.” We observed that “[o]ur cases make clear that the owner of a servient estate may still make reasonable use of land burdened by an easement of defined width.” That holding is consistent with a line of cases going back nearly 100 years.
In Willing v. Booker, 160 Va. 461 (1933), the VSC observed that “the owner of the soil may make any use of his land which does not interfere with the reasonable use of the [right of] way.” Whether an encroachment makes a right of way “less useful or less convenient” is a matter that should be resolved by a factfinder, and “the test is reasonableness.” Because the fence at issue in Willing did not impede the easement holder’s ingress or egress, the Court sided with the owner of the servient estate who had erected the fence.
In Walton v. Capital Land, Inc., 252 Va. 324 (1996), the VSC reasoned that “we have repeatedly held that the owner of the servient estate retains the right to use his land in any manner which does not unreasonably interfere with the use granted in the easement.” The VSC explained that when a “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.”
In Pizzarelle v. Dempsey, 259 Va. 521 (2000), the VSC considered whether the owners of the servient estate improperly interfered with the easement holders’ rights by placing bushes, trees, and a rock wall within the easement boundaries. The deed of easement conferred a right of ingress and egress for an easement that was 24 feet wide. The deed creating the easement contained the following additional language: “No act shall be performed by any owner of a Lot, their tenants, guests, or agents which would in any manner affect or jeopardize the free and continuous enjoyment of any other owner of a Lot in and to the easement.” The plaintiffs offered evidence questioning whether emergency vehicles could gain access to their homes if the full 24 feet of the easement were not open. They also testified that the encroachments created difficulties for snow removal. The circuit court concluded that the encroachment was insubstantial and did not warrant injunctive relief. The VSC disagreed, concluding that “the obstructions in the easement are a material encroachment on the dominant owners’ rights.” The evidence established that “the obstructions in the easement completely block[ed] all ingress and egress on the south side of the wooden fence,” and that “[i]n the present case, a significant portion of the easement would be rendered unusable for ingress and egress.” The strong language of the deed, which prohibited any act that “would in any manner affect or jeopardize the free and continuous enjoyment . . . of the easement,” also reinforced the easement holder’s claim. (emphasis added). Consequently, the VSC held that the circuit court’s refusal to grant an injunction was plainly wrong.
Finally, in Snead v. C&S Props. Holding Co., 279 Va. 607 (2010), the owners of a 60-foot-wide easement complained about the placement of objects, including a chain link fence, over their easement. The objects did not interfere with travel on the gravel road. The evidence, however, established that “the gravel road experiences traffic in both directions,” and that “it is not wide enough in its present state to accommodate two vehicles at the same time.” The owner of the servient estate admitted that the fence prevented the holders of the easement from using two-thirds of the easement. The VSC held that the fence encroachment was impermissible.

In its opinion rendered last Thursday, the VSC acknowledged that some statements in their prior decisions could lead to the conclusion reached by the Court of Appeals and the circuit court in this case. Those statements, however, cannot be read in isolation from the facts of the cases and from broader principles of property law. In Pizzarelle and Snead, the facts established that the encroachments substantially interfered with the easement holder’s right of ingress and egress and, therefore, compelled injunctive relief.

In other cases, such as Piney Meeting House and Walton, the servient owner’s activities did not present an unreasonable burden upon the holders of the easement for ingress and egress. Furthermore, the common law has long supported the proposition that landowners can use their land as they deem fit, provided they do not interfere with the rights of others.

In this matter, the VSC found that the evidence here established that the items Thibault placed along the gravel road did not interfere with the Yosts’ ingress and egress.

2. Virginia Code § 55.1-305 does not require the removal of all obstructions from a right of way easement, even when the easement is of a specified width.

In addition to looking at prior cases, the VSC analyzed Virginia Code § 55.1-305, finding that it sets forth some guardrails for the easements, both for the owners of the dominant estate and for the owners of the servient estate.

In looking at the plain language of the statute, the specific terms of the easement were the first place to look. In this case, the VSC found that the terms of the easement specify that it is for a “right of ingress and egress over an outlet road.” Although the language specifies a width of 50 feet, the purpose of the easement is for coming and going over an outlet road. The statute prohibits “the owner of a dominant estate” from “usi[ng] an easement in a way that is not reasonably consistent with the uses contemplated by the grant of the easement.” However, the VSC noted that provision is not at issue in this appeal.

Further, Virginia Code § 55.1-305 prohibits “the owner of the servient estate” from “engag[ing] in an activity or caus[ing] to be present any objects either upon the burdened land or immediately adjacent to such land that unreasonably interferes with the enjoyment of the easement by the owner of the dominant estate” (emphasis added). The VSC found that the evidence in this case unequivocally established that the Yosts are able to travel to and from their house over the land owned by Thibault. Accordingly, there is no basis to enjoin Thibault under this statute. Consistent with the cases referenced above and Virginia Code § 55.1-305, the VSC held that the owner of a servient estate is not automatically required to remove all objects intruding into an easement of a defined width. Instead, courts reviewing claims of an impermissible encroachment upon an easement, whether of defined width or otherwise, should:

(1) examine the language of the deed to determine the purpose of the easement and the intent of the parties; and

(2) evaluate whether the actions of the owner of the servient estate unreasonably interfere with the easement.

Conclusion/Holding

Accordingly, the VSC found the evidence unequivocally established that the fences, vines, haybales and other items Thibault placed on the side of the gravel road did not interfere with the Yosts’ ingress and egress in any appreciable way. Therefore, Thibault was not required to remove these items from within the boundaries of the easement. The Court of Appeals and the circuit court erred in holding otherwise.

Notably in a couple of footnotes, the VSC recognized that the Yosts had expressed a concern that their easement could be extinguished by prescription if Thibault was not compelled to remove the objects placed in the width of their easement. The VSC did not address the requirements for an easement owner’s forfeiture of an easement through prescription, but persuasive authority acknowledged the possibility. However, the VSC also indicated that this case did not call upon them to resolve the “contours” of Virginia law on this point. Additionally, the VSC recognized that a change in circumstances may require a different holding. For example, if traffic increases along the gravel road, making the width of the existing road inadequate for ingress and egress, or if erosion renders driving over the road impracticable, it may become necessary to use the full width of the easement for ingress and egress.

If you have any questions regarding this new opinion issued by the Supreme Court of Virginia concerning easements, or questions regarding Virginia real property law in general, please contact Jim Windsor at 757.873.6308 or jim.windsor@kaufcan.com, or John Chappell at 757.491.4022 or john.chappell@kaufcan.com.