Easement claim for landlocked parcel revived

A trial court’s dismissal of a case about whether an easement of necessity exists over a roadway located on property owned by the Virginia Department of Conservation and Recreation has been reversed by the Court of Appeals of Virginia.

The landowner complained that an earlier split of adjoining parcels landlocked his property and the prior owner accessed city roads using the same road. Finding no right to make such a claim, the trial court sustained the department’s demurrer.

But Judge Junius P. Fulton III said the appellant sufficiently alleged the elements for an easement by necessity.

“A reasonable fact finder could view the 1934 survey as evidence that the implied easement existed,” he explained. “The fact that the survey was created 22 years after the severance of the original property does not foreclose the possibility that an easement by necessity was created.”

The unpublished opinion is Jackson Sr. v. Virginia Dep’t of Conservation and Recreation (VLW 023-7-480). Judges Mary Grace O’Brien and Dominique A. Callins joined Fulton’s decision.

Neither Carlos A. Hutcherson of Hutcherson Law in Lynchburg, who represented the appellant, nor Terrence L. Graves of Sands Anderson in Richmond, who represented the department, responded to a request for comment before deadline.

Landlocked parcel

According to Jackson’s complaint, the adjoining parcels originated from a common owner, Charles Walker, who conveyed a portion to Norfolk Southern Railway Company in 1912 and left the remainder landlocked with no access to city streets.

A survey recorded in 1934 depicted the Walker property with a 20-foot “Roadway” running across the property. When Jackson purchased the remaining Walker property in 2001, the deed noted it was the identical property conveyed to Walker.

The Virginia Department of Conservation and Recreation acquired Norfolk Southern’s property in 2006 as a donation “subject to any conditions, restrictions, reservations, licenses or easements, whether or not of record.”

Easement complaint

In his complaint, Jackson claimed his only means of ingress or egress is the road that Walker used as depicted on the 1934 survey. He also alleged having livestock and needing to deliver large items, such as hay bales, using the road.

Jackson argued two theories — easement by estoppel and by necessity — as well as adverse possession of the road in support of his claim.

At the demurrer hearing, the department concurred with the trial court’s concern that its status as the commonwealth affected Jackson’s claims.

The department also argued that its 2006 victory in an ejectment action against Jackson barred his claims by res judicata. The court couldn’t declare easement rights for Jackson because it had decided that he had no legal interest in the property, the department said.

Jackson rebutted that res judicata was an affirmative defense and irrelevant to a demurrer which tests only the sufficiency of the pleadings. He asserted that the 2006 judgment was related to property lines, not the easement.

An implied easement was created when Walker sold the land to the railway and used the road access which was documented on maps, Jackson argued, adding that a justiciable controversy as to the existence of an easement required declaratory relief.

Finding that “the [Commonwealth] has the right to say you cannot make any claim of any sort, whether it’s this easement or adverse possession claim,” the trial court sustained the demurrer but declined to rule on res judicata.

Jackson appealed.

Easement by necessity

“‘Within the category of easements created by implication, we have recognized easements created by necessity,’” Fulton explained, adding they are “‘based upon the idea that whenever one conveys property, he conveys that which is necessary for the beneficial use of the land and retains that which is necessary for the beneficial use of the property he still possesses.’”

By clear and convincing evidence, a claimant must demonstrate that the severance of a parcel of land previously under common ownership created a reasonable and continuing need for access to a public right of way from one of the new parcels, the judge said.

“A ‘right of way thus acquired remains vested in the grantee and his successors in title so long as the necessity therefor continues to exist,’” Fulton wrote. Rather than physical or absolute, the necessity must be reasonable and practicable.

Here, Jackson asserted the elements for easement by necessity by alleging that the dominant and servient estates belonged to the same person before severance resulted in Walker’s need to use the road for access from his landlocked parcel.

Fulton credited Jackson’s contention that the alleged easement was reasonably necessary to the enjoyment of his property as there was no other means of ingress and egress. The department’s argument that no easement was recorded at the time of severance failed to convince the court.

“By their very nature, implied easements are not recorded, they are implied in law,” Fulton wrote. “An easement by necessity therefore need not be recorded and in fact, would never be recorded, or it would be an express easement.”

Finding that the department’s second and third factual arguments restated the first argument “merely adorned in different clothing,” Fulton disagreed that the 1934 survey couldn’t prove the existence of an easement by necessity created 22 years earlier.

In fact, the judge said it would be reasonable to infer that the 1934 survey could be viewed as proof of the existence of the easement alleged.

“Whether the survey — and other potential evidence that Jackson may proffer — is enough to convince a fact finder of his position is ultimately a question of fact, not of law, which should properly be decided at trial, not by demurrer,” Fulton concluded.

The court refused to address the department’s res judicata defense because it was raised by demurrer rather than a plea in bar.

The case returns to the Prince William County Circuit Court.