Real Estate – Easement – Riparian Rights – Dock Construction 

Although defendant property owners may have an easement to dig a canal, current environmental regulations would not allow a canal, but a Fairfax Circuit Court says the rule of “use for all reasonable purposes” of the right-of-way would allow construction of a dock to provide the owners with access to water.

In 1968, plaintiff Wessynton Homes Association granted to Richard O. Keys an easement to excavate a channel from the Keys’ property (lot 30) over land owned by WHA (parcel G) to water contained within the boundaries of parcel G. Defendant Burkes allege they are the successors in interest to Keys. The Burkes recorded the easement in land records in April 2005. In 2005, WHA and the Burkes began discussions regarding the Burkes’ desire to exercise the rights they claim under the easement. These rights include excavating portions of WHA’s land to access a privately owned canal within parcel G. The excavation cannot proceed as to do so would violate various regulatory provisions.

Here, the grant of an easement to excavate a canal is not ambiguous. However, through no fault of either party, the easement, unambiguously granted though it is, cannot be realized due to changes in environmental law.

Under the rule of grant of an easement as creating a general right of way of use for all reasonable purposes, it does not make sense to read the easement as granting the right to excavate a canal and only the right to excavate a canal. I cannot conclude the intent of the parties was to bargain only for the right to excavate a canal without more? It seems to me the intent of the Burkes’ predecessors in interest was to gain access to the main channel. The value of lot 30 increases substantially because of the access to the main channel; the right to excavate a canal was the method by which the parties contemplated the access. The fact the Burkes may not now lawfully excavate the canal does not terminate the easement.

The grant intended by the parties was access to the water. The method, as opposed to the right, perceived by the parties was the excavation of the canal. Because the excavation cannot now lawfully be accomplished, the Burkes are permitted to use any reasonable method to accomplish the right. Building a dock to realize the intent of the parties is a reasonable method, at least at this point in the litigation. If the law did not account for such changes, then the Burkes’ easement would be of no value.

The court overrules the demurrer to count I.

However, the court sustains the demurrer to count II, without leave to amend. Count II alleges a cause of action for reformation. The Burkes allege the change in environmental regulations is a “mutual mistake,” thus triggering the equitable remedy of reformation.

Neither party has alleged fraud, so if reformation is to lie it must do so under the rules of mutual mistake. There has been no mutual mistake in this case.

The demurrer to count III, alleging the Burkes possess riparian rights as to the water on parcel G, is overruled. The Burkes’ land is not contiguous to, nor does it abut a water source, so their lot is not riparian land. However, the intent of the easement to give the Burkes a right to boat access can be plausibly inferred at this stage of the litigation. The riparian rights that are necessary to fulfill the intent of the document can be conveyed without express mention. Therefore the conveyance of the riparian rights necessary to effectuate boat access could plausibly be inferred as well.

Wessynton Homes Ass’n Inc. v. Burke (Smith, J.) No. CH 2005-3441, Oct. 5, 2009; Fairfax Cir.Ct; David J. DePippo, Paul B. Terpak for the parties. VLW 009-8-245, 7 pp.