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Easement case remanded for further proceedings

Virginia Lawyers Weekly//October 3, 2023

Easement case remanded for further proceedings

Virginia Lawyers Weekly//October 3, 2023//

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Where the trial court resolved the parties’ dispute concerning a driveway easement, some of the court’s holdings must be reversed. The case is remanded for further proceedings.

The easement

“Francis and Donna Cantwell owned land on Stoneview Circle in Lexington, Virginia. In 2005, they split their land into two portions — Lots 6 and 7. Francis and Donna Cantwell sold Lot 7 to Greg Higgins. The deed conveying Lot 7 to Higgins (‘Higgins deed’) contained the following easement, for the benefit of Lot 6, owned by Francis and Donna Cantwell:

“‘The Grantors do hereby RESERVE unto themselves, their heirs and successors in title, a 40[-]foot easement along the westerly boundary of Lot 7, for the purpose or [sic] providing ingress and egress over existing driveway, fencing and landscape buffer for the benefit of Lot 6; said easement being shown on the aforesaid plat.’

“No plat attached to the deed shows the easement. Lot 7 was foreclosed upon and bought by [Jason] Cantwell [“Cantwell”], the son of Francis and Donna Cantwell. Lot 6 was then foreclosed upon and bought by the Huntsmans. The Huntsmans sold Lot 6 to the Forbeses, the current owners of Lot 6.

“Cantwell remains the current owner of Lot 7. The Forbeses and Cantwell do not contest that both Lot 6 and Lot 7 are subject to the easement in the Higgins deed. Cantwell owns the servient estate. The Forbeses own the dominant estate.

“Lots 6 and 7 are bound on their southern sides by Stoneview Circle, a public street. The easement is located on the western side of Lot 7, where Lots 6 and 7 border each other.

“If one stands on Stoneview Circle facing Lots 6 and 7, Lot 6 would be on the left, Lot 7 on the right, and the easement between the two lots, on Lot 7.

“Although the Forbeses and Cantwell disagree over the scope of the easement, they agree that the ingress/egress easement provides an ‘existing driveway’ from Lot 6 to Stoneview Circle.”


“The circuit court consolidated several claims between the Huntsmans and Cantwell and the Forbeses and Cantwell and held a trial to determine the scope of the easement, interpret the express easement, and resolve the parties’ claims.

“The Forbeses requested a declaratory judgment clarifying the parties’ rights under the easement. They also requested injunctive relief directing Cantwell to remove fencing and gates within the easement area, prohibiting him from installing ‘any gates, fences, landscaping or plantings’ and interfering with any such structures installed by the Forbeses.

“Although the Forbeses argued that the easement language was unambiguous, the circuit court ruled that the easement was ambiguous and permitted the introduction of parol evidence.

“This parol evidence included testimony from Francis Cantwell, the original drafter of the easement, about the intent and meaning of the fencing and landscape easement[.]”


“[W]e hold that the circuit court erred in holding that the size of the easement was ambiguous but did not err in holding that the scope of the easement was ambiguous. Thus, we affirm the circuit court’s admission of parol evidence, as the meaning and scope of ‘existing driveway’ and ‘fencing and landscape buffer’ was ambiguous.

“We also hold that the circuit court erred in holding that the deed created a negative easement on Lot 7’s land, as the deed and properly admitted parol evidence demonstrated that an affirmative easement existed for the benefit of Lot 6, over Lot 7’s servient tract.

“Furthermore, the circuit court erred in failing to enjoin Cantwell from erecting fences within the 40-foot easement, but it did not err in allowing Cantwell to retain line fencing.

“Finally, the circuit court did not err in enjoining Cantwell’s erection and maintenance of his current gates. The issue of Cantwell’s erection of new or different gates is remanded to the circuit court.

“Thus, we affirm in part and reverse in part.

“This matter is remanded to the circuit court for a hearing and determination of the parties’ specific rights under the easement, for modification of the injunctions concerning the Forbeses’ and Cantwell’s use of the easement, and for recordation of a new plat, consistent with this opinion.”

Affirmed in part, reversed and remanded in part.

Forbes, et al. v. Cantwell, Record No. 0212-22-3, Sept. 12, 2023. CAV (published opinion) (Causey) From the Circuit Court of Rockbridge County. (Stein) Meredith L. Yoder for appellants. John B. Simpson for appellee. VLW 023-7-348, 19 pp.

VLW 023-7-348

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