Prescriptive easement claim over quarry access rejected

A Circuit Court erred by confirming the existence of a prescriptive easement where the use of the servient property was permissive and therefore not hostile, a divided panel of the Court of Appeals of Virginia held in an unpublished opinion.

The appellees claimed that their predecessor’s use of an ingress and egress path across an abutting quarry was hostile to the owners. The Circuit Court held that the quarry owners failed to rebut the presumption that the appellees’ or their predecessors use of the property was hostile.

But Judge Clifford L. Athey Jr. found that “rather than establishing a presumption of adverse use, the [appellees’] evidence instead showed that the use of the Southampton Quarry property by its stockholders was ‘permissive in its inception.’”

“A prescriptive right will not arise from the permission of the owner,” the judge said. “Because the [appellees’] evidence showed that the use of the River Path arose from permission, we reverse the judgment of the circuit court.”

Judge Richard Y. AtLee Jr. joined Athey in reversing and remanding Southampton Quarry LLC v. Ford, et al. (VLW 025-7-234).

In a dissenting opinion, Judge Dominique A. Callins said the Circuit Court’s conclusion that prior use of the path had been hostile “because the record includes only circumstantial evidence of a permissive use by [the predecessor in title][.]”

Callins also took issue with the panel’s determination that a shareholder in a private, closely-held corporate entity cannot obtain an easement by prescription over land owned by the entity.

“In doing so, the majority weakens the protections offered by, and the economic principles underlying, the corporate veil,” Callins wrote.

Permanent burden

Longtime appellate attorney Norman Thomas of Richmond represented Southampton Quarry. Thomas said that “easements are a fertile form of disagreement” which are prominent among recent opinions from Virginia’s appellate courts.

“A perpetual prescriptive easement not only permanently burdens the servient tract owner’s property rights, approximating forever as that time frame is understood at law, but it can complicate insuring the property and, ultimately, diminish the value of the property for resale or any other value-related purposes,” he said.

Thomas has handled numerous types of property rights cases during the past few years of his appellate practice. “This was not my first easement appeal, and I have developed a real affinity for land use cases,” he said.

Counsel for the appellees declined to comment. However, the appellees filed a motion for reconsideration en banc on Sept. 16.

The river path

Brian and Stephanie Ford filed suit against Southampton Quarry LLC to recognize and establish the location of an easement by implication permitting them and their successors to ingress and egress over the quarry’s parcel along a path to the James River.

The Fords alleged that the river path had been in use since 1925 and their predecessors’ — James Starnes and his wife — use had been hostile to the owners. Starnes testified that his use of the path was permissive as a shareholder in Southampton Quarry and later as an LLC manager.

The Fords maintained that Starnes had no legal authority to give himself permission to use the path on behalf of Southampton Quarry, a separate and distinct legal entity as a corporation or an LLC after it converted in 2019.

Scott Ellett, a neighbor since 1963 and shareholder in Southampton Quarry, testified that the quarry was a members-only swim club. Neighbor and LLC manager, Mathew Rigby, testified that Southampton Quarry’s purpose was to own recreational property for the members.

Rigby also rebutted the Fords’ assertion of hostility by testifying that he provided them with the combination to the river path gate lock only so the Fords could work on trees.

Southampton Quarry moved to strike, arguing that the uncontroverted testimony established that its members had permission to use the path. The Fords countered that Southampton Quarry had failed to rebut the presumption that their or Starnes’s use had been hostile.

The circuit court agreed with the Fords and found no evidence that the purpose of the Southampton Quarry remained the same after it converted to an LLC. Because Starnes never possessed legal control over the quarry, he could not have used the path permissively.

Southampton Quarry appealed.

Permissive use

Athey agreed that the Starnes’ use of the quarry property was not adverse because, as a shareholder in Southampton Quarry, and later a manager of the LLC, Starnes and his family always had permission to use the quarry property.

“It has repeatedly been held that the use of the land of another for any length of time, merely by permission, will not ripen into title,” the judge said.

“If it be fairly shown that the use is permissive in its inception, it will never by mere lapse of time ripen into a hostile right,” he explained. “‘And having begun by permission, [the use] will … continue to be regarded as permissive, especially when the latter’s use of the easement is in common with others.”

Even the Fords’ witnesses agreed with Rigby that the purpose of Southampton Quarry was to be a recreational property for the enjoyment of members of the corporation and their families and that this permissive use continued after the entity was converted to an LLC.

“Thus, the Fords failed to establish any presumption of hostility to support the claim that their allegedly prescriptive use originated adversely,” Athey held, adding that the court’s holding from Boxley v. Crouse did not demand a different result.

In Boxley, the only evidence of permission was that the appellant had mailed the appellee a key to a gate that was never locked. The court held that this circumstantial evidence was not sufficient to rebut the presumption of hostility.

“Here, rather than establishing a presumption of adverse use, the Fords’ evidence instead showed that the use of the Southampton Quarry property by its stockholders was ‘permissive in its inception,’” Athey found.

And because the Fords relied on Starnes’s status as a predecessor in title, Starnes’s testimony that he had permission meant the Fords failed to establish a presumption of hostility.

“Thus, the circuit court’s holding that Southampton Quarry ‘failed to rebut this presumption’ was error because there is not insufficient evidence testimony in the record justifying the presumption that the claim arose adversely or was based upon any hostile act,” Athey said.

No hostility

With no presumption of hostility, Athey said the uncontroverted witness testimony “established that since the 1960s, the status of being a stockholder in Southampton Quarry granted permission for the stockholder and their family to use the quarry property.”

“And because Starnes and his family had permission to use the quarry property — which is inclusive of the area covered by the Fords’ proposed easement — it follows that their use of the property was not hostile to the rights of the owner,” the judge wrote.

Further, Rigby testified that the quarry’s purpose was to be a recreational property for the enjoyment of members of the corporation and their families even after it converted to an LLC.

“Contrary to the Circuit Court’s conclusion that ‘there was no evidence’ that Starnes believed he had permission to use the River Path, the Fords’ own evidence as adduced through Ellett and Starnes established that the stockholders of Southampton Quarry and their families had permission to use the quarry property and the River Path,” Athey said.

Combined with Rigby’s testimony, the Fords’ evidence demonstrated that the use of the Southampton Quarry property was permissive and not hostile, therefore a prescriptive easement did not exist during the time that Starnes owned the property.

“Since the Fords purchased their home in 2019 and they must rely on Starnes’s use of the property as their predecessor in title to reach the required 20-year period, the Circuit Court erred in finding that a prescriptive easement existed over Southampton Quarry’s property,” Athey held.