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Some claims survive demurrer in easement case

Plaintiffs’ claim of a prescriptive easement to use defendants’ road survives demurrer because the complaint alleges exclusive and continuous use, from which plaintiffs’ use under claim of right is presumed.

Because plaintiffs have stated a claim, they can seek permanent injunctive relief. However, defendants’ demurrer to a claim of an implied easement by necessity is sustained. There is no allegation that the need for an easement arose at the same time that common title to the disputed properties was severed.


As alleged in their complaint, plaintiffs seek an easement from a paved road, Star Route 75, along a soil road crossing three parcels of defendants’ land to access parcels owned by plaintiffs. The easement would extend about one-tenth of a mile over defendants’ land. Plaintiffs sued after defendants erected a cable across the soil road.

Before the court is defendants’ demurrer to plaintiffs’ claims.

Prescriptive easement

“A party claiming a prescriptive easement must prove that use of the purported servient estate was adverse, under a claim of right, exclusive, continuous and uninterrupted, and with the knowledge and acquiescence of the owners of the servient estate for at least twenty years.”

Defendants argue that the general public used the soil road, so plaintiffs and their predecessors in title did not use the road exclusively. However, the complaint does not allege public use.

Instead, it alleges “that four limited groups of individuals have historically used the soil road as a means of ingress and egress for the plaintiffs’ properties: the plaintiffs; the plaintiffs’ predecessors in title; raccoon hunters who belonged to a ‘Raccoon Hunt Club’ that was formerly headquartered in a building located on one of the properties, and who used the property for dog training and related competitions from ‘the early seventies until the late nineties;’ and other ‘invitees of the club and interested spectators.’”

As to the continuous use element, such use need not be daily, weekly or monthly and instead is use “of sufficient continuity, in terms of the character of the activity and frequency, to give reasonable notice to a servient landowner that an adverse property right is being exercised.”

Plaintiffs have alleged their own unobstructed use of the soil road to get to their land, along with many years of use for Raccoon Hunt Club activities. The complaint alleges that plaintiffs’ predecessors resided on the land, farmed there, and transported crops and timber over the soil road without any interference from defendants or their predecessors in title.

These allegations “amount to allegations, expressly and by reasonable inferences, of ‘open, visible, continuous and unmolested use’ of the soil road over the defendants’ properties for at least twenty years by the plaintiffs and their predecessors.” Under settled Virginia law, such use is presumed to be use under claim of right.”

Defendants’ demurrer as to this claim is overruled.

Further, because plaintiffs have stated a claim, they are entitled to seek permanent injunctive relief, and defendants’ demurrer arguing otherwise is overruled.

Implied easement

Plaintiffs claim an implied easement by necessity. Four elements are necessary to establish this type of easement: “(1) the dominant and servient estates were derived from a common title, i.e., at some time in the past, [they] belonged to the same person, (2) the easement is reasonably necessary to the enjoyment of the dominant estate, and (3), the dominant estate became landlocked at the time of the severance of the two estates and there is no means of ingress and egress other than over the servient estate.”

Defendants correctly note that “the complaint fails to allege the time or times of severance of the plaintiffs’ properties from common title with that of the defendants’ properties; and then further fails to allege that the necessity for an implied easement arose at that time. …

“While the complaint alleges that two of the three tracts of the plaintiffs’ properties and the defendants’ properties ‘derived from a common source of title,’ it alleges no more than that there is currently not ‘another mode of access to the plaintiffs two tracts of land except the usage of the present existing private road from present state route 75 over and across the [d]efendants’ three tracts of land to the land of the [p]laintiffs.”

Defendants’ demurrer to plaintiffs’ claim of an implied easement by necessity is sustained.

Hughes, et al. v. Hampton, et al. CL19-655, Aug.22, 2019; Washington Cir. Ct. (Rowlett). Randall A. Eads, Thomas Dene, Samuel J. Kaufman, David F. Bernhardt for the parties. VLW 019-8-094, 11 pp.

VLW 019-8-094

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