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Yet again, easement cases from the Supreme Court

For those of you who suspect that the Supreme Court of Virginia has never seen an easement dispute that it didn’t think merited its attention, we have three more examples today.

One, Hafner v. Hansen, involves what seems to be the court’s all-time favorite topic, an easement by prescription, or what a property owner hoped – in vain – would be an easement by prescription.

An unrecorded sewer line lay 11-feet underground in a residential site in Arlington County, largely out of anyone’s mind for more than 50 years, until it was discovered during a remodeling project. The owner of the adjacent apartment building contended he had an easement by prescription to use the line.

Not so, the court held. Even though use of the sewer was continuous, it was not so open and obvious that the owner should have known about it and objected to it.

In a case from Fredericksburg, a trial judge refused to grant an injunction for a property owner who contended that the holder of an easement was blocking all but the 12 feet of a 60-foot easement covered by a gravel road.

The access provided over the road met the essential purpose of the easement, so that an injunction was unnecessary, the trial court held. That finding missed the point, the Supreme Court ruled in Snead v. C&S Properties Holding Company Ltd. Man-made objects encroached on the easement and prevented use of a significant portion of it, and the extent of an easement is based on its terms and not on reasonableness or a balance of the equities, the high court held.

In the third case, the court decided that what the property owner contended was an easement was in fact a fee simple interest. A railroad conveyed to the town of Saltville in 1994 an 80-foot wide “right of way” that it had obtained in 1909 for a single-track railway.

When the town began removing railroad materials from the corridor, the successor in interest to the 1909 transfer contended that the property was an easement that had reverted to her.

Although a document used the term right of way, another document recorded at the same time used language more consistent with the transfer of a fee simple interest in the property, the court held in Bailey v. Town of Saltville.

By Alan Cooper

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