IRBY v. ROBERTS


IRBY v. ROBERTS


September 18, 1998

Record No. 971990

E. CLAIBORNE IRBY, JR., ET AL.

v.

THOMAS C. ROBERTS, JR., ET AL.

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.

FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY

John M. Folkes, Judge

Present: All the Justices

In this appeal, we consider whether the trial court
properly determined that the language of a deed purporting to
grant an easement to construct a pier was ambiguous and, thus,
failed to transfer the necessary riparian right for that purpose.

BACKGROUND

Paul W. and Jean W. Bounds owned a subdivided peninsula of
land, consisting of Lots 68, 69, 70, and 71, known as Stove Point
Neck in Middlesex County. The Piankatank River runs along one
side of the peninsula, while the other side is bounded by Fishing
Bay.

The Piankatank River and Fishing Bay are tidal, navigable
bodies of water. In 1963, the Bounds conveyed Lot 68 and Lot 70
by deed to David M. Bounds, their son, and immediately thereafter
conveyed Lot 71 by deed to Jeanne W. Bounds, their daughter. The
deeds incorporated a plat of survey, dated July 1, 1963, for the
purpose of identifying the boundaries of these lots. The 1963
plat, which was revised in 1966, shows a riprap wall running
along the shoreline of Lot 71 on Fishing Bay, as well as two
easements on that property. The first easement, indicated by two
solid lines, is identified on the plat as a ten-foot wide
right-of-way "to pier." The second easement, indicated
by two parallel dashed lines, originating at the riprap wall and
extending out into Fishing Bay, is identified on the plat as a
thirty-foot wide "easement for pier." The deed to
Jeanne Bounds conveyed Lot 71 to her "subject to a right of
way along the northern boundary of Lot 71 to Fishing Bay and [a] thirty (30') foot easement along the shore of Fishing Bay for a
pier as shown on the aforementioned Plat." Similarly, the
deed to David Bounds conveyed Lot 68 and Lot 70 to him, and
included "a right of way along Lot 71 to Fishing Bay,
together with a 30' easement as shown on the aforementioned plat
for the purpose of constructing a pier." (Emphasis added.)
As indicated on the 1963 plat, the shorelines of Lot 68 and Lot
70 are on the Piankatank River. Lot 71, located at the end of the
peninsula, is bounded by the Piankatank River on one side and
Fishing Bay on the opposite side. The plat, as revised in 1966,
shows the same easements and identifies them in the same manner
as the 1963 plat.

In April 1994, John E. Fitzgerald, a successor in the
chain of title from David Bounds, conveyed Lot 68 and Lot 70 by
deed to E. Claiborne Irby, Jr. and Michelle M. Irby. That deed
incorporates by reference the revised 1966 plat and expressly
references the "non-exclusive perpetual easement 10 feet in
width along the northern portion of Lot 71 to Fishing Bay,
together with a 30 foot easement for the purpose of construction
(sic) a pier." On December 30, 1994, Mary C. Adams and
Sydnor Sikes, Co-Executors of the Estate of John Kirk Adams, a
successor in the chain of title from Jeanne Bounds, conveyed Lot
71 by deed to Thomas C. Roberts, Jr. and Norma J. Roberts.
Although that deed makes no express reference to the easements
granted in the 1963 deed to David Bounds, the revised 1966 plat
is incorporated by reference in a schedule attached to the deed.

On May 24, 1994, the Irbys obtained a permit from the
Virginia Marine Resources Commission to construct a five-foot
wide, 150-foot long pier extending from the thirty-foot easement
on Lot 71 to navigable water in Fishing Bay. Thereafter, on
February 26, 1996, the Roberts filed a bill of complaint against
the Irbys seeking an injunction to prohibit them from
constructing this pier.
[1]
The parties submitted extensive documentary evidence of the
chains of title to their respective lots, and a hearing was held
June 4, 1997 at which the trial court heard testimony and
received additional documentary evidence.

At trial, the Roberts conceded the existence of the
ten-foot wide right-of-way along the northern edge of their
property as described in the 1963 deed to David Bounds and the
incorporated plat. However, they maintained that the 1963 deed's
grant of the thirty-foot easement "for the purpose of
constructing a pier" was insufficient to convey the separate
riparian right to construct a pier out to navigable water.
[2]
Relying on Thurston v. City of Portsmouth, 205 Va. 909, 915, 140
S.E.2d 678, 682 (1965), the Roberts asserted that in order to
retain or convey riparian rights there must be a clear and
manifest intention expressed within the deed to accomplish that
purpose. The Roberts further maintained that because this deed
made no express mention of "riparian rights," those
rights could not be severed by the deed, and the easement merely
provided access to the shoreline of Lot 71 between the dashed
lines on the plat wherein a pier might have been constructed
under a license personal to David Bounds, and this license would
not have transferred with title to subsequent owners of the land.

In support of their argument, the Roberts contended at
trial, and reassert here, that the description of the thirty-foot
wide easement in the 1963 deed to David Bounds provided only for
its width along the shoreline, but not its length inland, and
that the incorporated plat showed the easement extending from the
shoreline below the riprap wall into Fishing Bay. Consistent with
this contention, the Roberts offered as an exhibit a riparian
survey prepared at their request showing the thirty-foot wide
easement as beginning at the mean low water mark. Accordingly,
the Roberts contended that the deed could not have conveyed the
riparian right to construct a pier beginning on the highland.

The Irbys contended that the express intent in the 1963
deed to David Bounds and the incorporated plat was to convey an
easement and the riparian right necessary to construct a pier
into Fishing Bay. In support of their contention, the Irbys
offered their own survey of the peninsula that shows the
thirty-foot wide easement extending from the highland of Lot 71
along the original 1963 line of the riprap wall to the shore of
Fishing Bay.

On June 30, 1997, the trial court entered a final decree,
finding that the "location and extent of the Purported Pier
Easement was ambiguous and was not established by a preponderance
of the evidence." The trial court further found that this
ambiguity in the 1963 deed to David Bounds was to be construed
against the Irbys, as successor-owners of the purported dominant
estate. Accordingly, in the absence of an express grant or other
language showing "any clear or manifest intention
. . . to sever, exclude or convey any riparian
rights," the trial court concluded that no such rights were
conveyed, frustrating the purported purpose of the easement to
construct a pier and, thus, "[t]he Purported Pier Easement
is . . . invalid, null, void and forever vacated."
We awarded the Irbys this appeal.

DISCUSSION

We first consider whether the trial court properly ruled
that the language of the 1963 deed to David Bounds granting
"a 30' easement . . . for the purpose of
constructing a pier" was ambiguous. We have previously
stated that where "[t]he language in the deed
. . . is clear, unambiguous, and explicit
. . . 'a court called upon to construe such a deed
should look no further than the four corners of the instrument
under review.'" Langman v. Alumni Association of University
of Virginia, 247 Va. 491, 498-99, 442 S.E.2d 669, 674 (1994)
(quoting Trailsend Land Co. v. Virginia Holding Corp., 228 Va.
319, 325, 321 S.E.2d 667, 670 (1984)). Furthermore, "[i]f
the language is explicit and the intention is thereby free from
doubt, such intention is controlling, if not contrary to law or
to public policy, and auxiliary rules of construction should not
be used." Camp v. Camp, 220 Va. 595, 598, 260 S.E.2d 243,
245 (1979); see also Langman, 247 Va. at 499, 442 S.E.2d at 674
(citing Camp with approval).

In this case, the language of the 1963 deed to David
Bounds establishes "a 30' easement . . . for the
purpose of constructing a pier." Moreover, the incorporated
plat shows the location and extent of the easement by reference
to natural and artificial monuments.
[3] See Auerbach v.
County of Hanover, 252 Va. 410, 414, 478 S.E.2d 100, 102 (1996)
(plat incorporated by reference is part of the incorporating
instrument). Nothing in the language of this deed is ambiguous or
without clear import. Both the deed and the plat plainly manifest
the intent of Paul and Jean Bounds, the grantors, to provide an
easement along the shoreline of Lot 71 in the location indicated
on the plat for the purpose of permitting the owner of Lots 68
and 70, the dominant estate, to construct a pier within the
thirty-foot wide easement.

Having determined that the language of the 1963 deed to
David Bounds granting the easement is clear and unambiguous, we
now consider whether this deed also granted the riparian right to
construct a pier out to navigable water. In Grinels v. Daniel,
110 Va. 874, 67 S.E. 534 (1910), we held that a lease to
"one-fourth of an acre of land, 'situated on the beach of
the river together with a right of way though the lands of [the
lessor], to be used by the parties of the second part for the
purposes of constructing a steamboat wharf,'" id. at 875, 67
S.E. at 535 (emphasis added), permitted the lessees to construct
that wharf consistent with the lessor's riparian rights, but
conveyed no other rights of use or occupation of the land and the
adjoining water. Id. at 876, 67 S.E. at 535. Rather, in making
such a grant, we noted that the landowner did not "part with
his riparian rights to any greater extent than was necessary to
enable the lessees to erect the wharf." Id. Implicitly,
however, the landowner must part with those rights necessary to
fulfill the intent of the grant.

The language of the deed at issue here is strikingly
similar to that in the lease at issue in Grinels. As in Grinels,
the intent of the grantors here was to permit the grantee to
utilize the land within given bounds to build a pier and, thus,
to convey the necessary riparian right for that purpose.
[4]

Nor do we agree with the Roberts that Thurston has
modified the rationale of Grinels to require use of the express
term "riparian rights," or other similar language, in
order to effect such a grant. To the contrary, Thurston relied
upon Waverly, &c. Co. v. White, 97 Va. 176, 33 S.E. 534
(1899), for the principle that the intention to retain riparian
rights must be clear and manifest on the face of the deed.
Thurston, 205 Va. at 912-13, 140 S.E.2d at 680-81. In Waverly,
deeds that granted title to land above the high water mark and
made no express mention of "riparian rights" were held
to convey such rights absent an express reservation. Waverly, 97
Va. at 180, 33 S.E. at 536. Thus, Waverly, and subsequently
Grinels, stand for the principle that the intent to transfer a
"riparian right" may be express within the language of
a grant without the use of that specific term.

Accordingly, we hold that the intent of Paul and Jean
Bounds to convey the riparian right to construct a pier is
sufficiently clear in the language of the deed to render
unnecessary the inclusion of a specific reference to
"riparian rights." Thus, by the 1963 deed to David
Bounds, Paul and Jean Bounds granted an easement to construct a
pier with the necessary riparian right to fulfill that purpose.
Grinels, 110 Va. at 876, 67 S.E. at 535.

The Roberts further contend that even if the deed conveyed
the right to construct the pier, the length of that pier is
limited to the area demarcated by the dashed lines on the plat,
which they contend are shown as extending no more than 57 feet
from the riprap wall into Fishing Bay. We disagree. Nothing in
the deed suggests that the dashed lines on the incorporated plat
were intended to restrict the length of the pier into Fishing
Bay. Rather, it is evident that these lines are merely
directional, showing the boundaries of the thirty-foot wide
easement within which the pier could be constructed.

Moreover, it is not necessary for the deed to specify the
length of the pier. In the absence of any express restriction in
the deed, the law of this Commonwealth resolves the issue
regarding the pier's length. See Code ? 28.2-1200 et seq.
(permitting Virginia Marine Resources Commission to regulate
commercial and private use of submerged lands including the
construction of piers out to navigable waters); see also Taylor,
102 Va. at 773, 47 S.E. at 880 (the right to construct a pier
extends out to navigable water subject to the regulations of the
state).

For these reasons, we will reverse the judgment of the
trial court and enter final judgment for the Irbys.
[5]

Reversed and final judgment.

 

FOOTNOTES:

[1] In the same suit, the
Roberts also sought an apportionment of their riparian rights as
against the riparian rights of the owners of Lot 69, which
adjoins Lot 71 on Fishing Bay. That determination is not a
subject of the present appeal.

[2]"Riparian
rights" represent five specific rights, including
"[t]he right to build a pier or wharf out to navigable
water, subject to any regulations of the State." Taylor v.
Commonwealth, 102 Va. 759, 773, 47 S.E. 875, 880 (1904).

[3]The
record contains multiple copies of the 1963 plat. These copies
are of varying quality. However, in the copies that are more
distinct, notations concerning artificial monuments relevant to
the easements are discernable. Moreover, in at least one of the
copies of the 1963 plat, it is clear that one of the lines
demarcating the thirty-foot easement extends to the riprap wall.

[4] We recognize that
"pier" and "wharf" are not congruent terms;
however, the construction of an artificial mooring out to or
along navigable waters requires the same riparian right
regardless of the intended use of the structure. See Taylor, 102
Va. at 773, 47 S.E. at 880.

[5] Because of our resolution
of the main issue in this appeal, we need not address appellants'
other assignments of error.

 

 

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