Virginia Lawyers Weekly VA Lawyers Weekly
A long simmering landowner dispute over the right to store boats at a private dock in a lakefront community has been resolved by the Supreme Court of Virginia.
The owner of a waterfront lot granted an access easement to the owners of two adjacent parcels in exchange for their agreement to build a retaining wall. With permission, the adjacent owners docked their pontoon boat and smaller watercraft along the retaining wall.
Later owners brought that accommodation to a litigious halt.
In subsequent cases, the trial court rejected the adjacent owners’ bids for docking rights, finding that they failed to establish the requisite continuity and hostility for a prescriptive easement.
But the trial court’s ruling about docking the pontoon boat was wrong.
“Even if we assume that the original docking was permissive, the sale of the land vitiated the permission granted by the original owners,” Justice Stephen R. McCullough, said. “No evidence indicates any of the subsequent owners granted any kind of permission to dock a boat on their land.”
Finding that evidence supported the adjacent owner’s right to store their pontoon boat at the dock, the justices also reversed the trial court’s award of punitive damages to the dock owner.
The opinion is Horn, et al. v. Webb, et al. (VLW 023-6-004).
The easement
The Fidels owned Lot 612, a waterfront residential parcel in Lake Barcroft, a lakefront community in Fairfax County. In 1966, they granted a 20-foot wide access easement on their property to the owners of adjacent Lots 613 and 615 in exchange for their agreement to build a waterfront retaining wall along Lot 612.
The Fidels also allowed the adjacent owners to dock pontoon boats and smaller watercraft, such as canoes and skiffs, along the retaining wall. Over the next few decades, ownership of the three lots changed hands; the owners of Lots 613 and 615 kept docking their boats at Lot 612.
But when James and Hong Webb bought Lot 612 in 2017, they told their neighbors to move the boats. Atul Rustgi owned Lot 613, while Lot 615 was owned by Kevin and Meredith Horn. Both Rustgi and the Horns refused to move their boats, including a pontoon they jointly owned.
The lawsuits
In July 2019, Rustgi sued for a declaratory judgment that he had an easement to dock boats at Lot 612. The Fairfax Circuit Court sided with the Webbs and awarded damages for their trespass and nuisance counterclaims.
After his lawsuit sank, Rustgi sold his half interest in the pontoon boat to the Horns. Undeterred by Rustgi’s failure, the Horns continued to dock their boats at Lot 612 in spite of the Webbs’ renewed protests.
The Webbs filed suit against the Horns for trespass, nuisance and sought a declaratory judgment of their rights. The Horns’ countersued for prescriptive easement rights to dock their pontoon boat and smaller watercraft at Lot 612.
The Horns alleged that they had been storing smaller watercraft in the same spot along the retaining wall at Lot 612 continuously since they bought Lot 615 in 2005. A neighbor’s testimony supported their allegation.
A series of aerial photographs taken between 1972-2009 didn’t show the small watercraft docked at Lot 612 as the Horns or their neighbor described. The trial court again sided with the Webbs.
The trial court found the Horns liable for $11,550 in compensatory damages and awarded the Webbs $45,000 in punitive damages because the Horns’ persistence in claiming a prescriptive easement was inexcusable after Rustgi’s claims were defeated.
The Horns appealed.
Small watercraft
To establish a prescriptive easement, claimants must prove that their use of land was adverse, under a claim of right, exclusive, continuous, uninterrupted and with the knowledge and acquiescence of the owner of the land over which it passes, and that the use has continued for at least 20 years.
Here, McCullough said there was conflicting evidence about whether the Horns continuously docked their small watercraft at Lot 612 for 20 years. The justice pointed out that the trial court found the neighbor’s testimony equivocal and in conflict with aerial photographs.
Viewing the evidence in the light most favorable to the prevailing party, he said the trial court correctly found that the Horns didn’t establish prescriptive easement rights to dock small watercraft at Lot 612.
Pontoon boat
McCullough said there was ample record evidence to support the trial court’s finding that the docking of a pontoon boat on Lot 612 was open, visible, continuous and unmolested since 1966.
The question, however, was whether the docking was hostile.
“A claimant ‘is in hostile possession if his possession is under a claim of right and adverse to the right of the true owner,’” McCullough explained, adding that the “claimant need not make a hostile intention express.”
Although permission to occupy the land negates hostility, the justice said open, visible and continuous use of land for 20 years entitles a claimant to a presumption of hostility.
“The burden is on the owner of the servient estate, in this instance, the Webbs, to rebut ‘this presumption by showing that the use was permissive, and not under claim of right,’” McCullough wrote.
The Horns were entitled to a hostility presumption because their evidence established that the docking of their boat was open, visible and continuous for 20 years. Conversely, the justice said the Webbs offered no evidence that they gave the Horns permission to dock their boat.
Assuming the existence of a boat docking agreement between the prior owners, McCullough said permission would have ended when the Fidels sold Lot 612.
The justice disagreed with the trial court’s holding that once permission is granted, it is presumed to continue indefinitely, even when the person who granted permission sells the land.
“Permission does not extend beyond the ownership of the person who granted permission,” McCullough wrote. “Therefore, a permissive use terminates when the owner who granted permission sells the property.”
Because the Webbs didn’t present evidence that successors in title to the Fidels gave permission for boat docking, the Horns established all necessary elements for a prescriptive easement from when the Fidels sold their land in 1976.
Further, McCullough said that evidence showing the prior owners were on friendly terms didn’t establish a permissive use.
“Failure to object is acquiescence,” he wrote. “Acquiescence is not the same as granting permission.”
Finding that the Horns established their right to a prescriptive easement to dock a boat on the Webbs’ lot, McCullough reversed the trial court’s holding.
Since the Horns weren’t parties to Rustgi’s failed lawsuit and the record didn’t support a finding of malice, the court reversed the punitive damages award.
‘Pipe up’
Arlington real estate attorney Aristotelis A. Chronis represented the Horns until they decided to go pro se two weeks before the writ panel argument in order to save costs. He was happy that the trial court allowed his clients to present their case, despite Rustgi’s outcome.
“Who’s to say what the prior owners talked about, so you could have zero knowledge of some permissive use,” Chronis cautioned, advising that an owner should “pipe up and say something rather than assume some use is permissive rather than hostile.”
He also stressed the importance of the court’s reversal on punitive damages awarded by the circuit court.
“If that ruling had remained intact, it would have a major chilling effect where people were just upholding their rights,” he said.
John Chapman ‘Chap’ Petersen of Fairfax, who represented the Webbs in both trials, told Virginia Lawyers Weekly he was shocked by the reversal. He balked at the high court’s ruling that hostile use tacked from one owner to the next, but not permissiveness.
“In both trials we had witnesses who were there when the lake was originally dredged and the retaining wall built who testified it was done with the consent of all the neighbors,” Peterson said. “They all had parties there, barbecues. It was use that started and continued with permission and as a result there was no adversity.”
