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HUDSON, et al.
v.
PILLOW, et al.
March 2, 2001
Record No. 000835
Present: Carrico, C.J., Lacy, Keenan, Koontz,
Kinser, and Lemons, JJ.
ROY HUDSON, ET AL.
v.
RUTH M. PILLOW, ET AL.
FROM THE CIRCUIT COURT OF AMHERST COUNTY
Thomas A. Fortkort, Judge Designate
OPINION BY JUSTICE CYNTHIA D. KINSER
This appeal involves the question whether an
old road known as the "Free Hollow Road" has been
abandoned. That road ran through a farm known as "Rose
Hill" and allegedly provided a means of ingress to and
egress from a tract of land known as "Free Hollow."
Because we find sufficient evidence to support the circuit
court’s judgment that the Free Hollow Road has been
abandoned, we will affirm that judgment.
MATERIAL PROCEEDINGS
By deed dated November 25, 1865, and recorded
in Amherst County, the Free Hollow tract of land, containing
approximately 213 acres, was conveyed to 17 individuals pursuant
to the terms of the will of Robert Tinsley. A portion of that
tract is now owned by the appellants, Roy Hudson, Danny Melvin
Carwile, and S. Vance Wilkins, Jr., (hereinafter referred to as
"the plaintiffs").[1] The Free Hollow tract adjoins the
Rose Hill farm. The appellees, Ruth Myra Richeson Pillow, and her
husband, John L. Pillow; and Nell Richeson Cordick and her
husband, Leonard Eugene Cordick (hereinafter referred to as
"the defendants"), are the owners of the Rose Hill farm
(also referred to as "the Richeson property").[2]
The plaintiffs filed a "Bill of Complaint
and Motion for Injunctive Relief," requesting that a right
of way be recognized across the defendants’ property and an
injunction be issued to allow ingress to and egress from the
plaintiffs’ property. After hearing evidence and viewing the
property, the chancellor issued a letter opinion.[3]
The chancellor found that no one has lived in Free Hollow since
the 1960’s and that the Free Hollow Road is overgrown with
heavy brush and large trees, "accessible only by a
determined pedestrian." The chancellor also found that Ramey
Richeson, who formerly owned an interest in Rose Hill,[4] maintained control over the road, and locked the gates
across it to prevent ingress and egress.
In a final decree incorporating the letter
opinion, the chancellor made the following findings:
The plaintiffs sustained their burden of
proving a prescriptive easement over the old "Free Hollow
Road" from Free Hollow to the location of present day State
Route 714 near its intersection with State Route 615. However,
clear and unequivocal evidence indicates non-use of the easement
coupled with acts which indicate an intention to abandon or which
evidence adverse use by the owners of the servient estate (Rose
Hill) acquiesced in by owners of the dominant estate (Free
Hollow) constituting abandonment of said old "Free Hollow
Road."
Accordingly, the chancellor concluded that no
easement presently exists from the Free Hollow tract across the
Rose Hill farm and dismissed the bill of complaint. We awarded
the plaintiffs this appeal.
FACTS
The dispositive issue on appeal concerns the
chancellor’s finding that the easement across the Rose Hill
farm has been abandoned. Thus, we will summarize the facts
relevant to that issue, and in doing so, will
present those facts, and all inferences fairly deducible from
them, in the light most favorable to the defendants, the
prevailing parties on that issue. Prospect Dev. Co. v.
Bershader, 258 Va. 75, 80, 515 S.E.2d 291, 294 (1999).
Since the early 1960’s, no one has resided
on the Free Hollow property. According to Hugh A. Richeson,
anyone who has traveled across the Richeson property to access
the Free Hollow property since then has done so only after first
getting permission from some member of his family.[5]
Hugh’s niece, Ruth Richeson Pillow, likewise stated that, in
her lifetime, no one has used the old road across the Rose Hill
farm to access Free Hollow without getting permission from her
father, W. H. Richeson, Jr., or her uncle, Ramey Richeson.
Hugh further testified that, after his father
died in 1962, his younger brother, Ramey, took over the farm and,
sometime in the late 1960’s, locked all the gates at the
entrances to the Rose Hill farm. Hugh’s sister, Sarah
Richeson Gordon, also testified that the gates on the Rose Hill
farm were locked after her father’s death in 1962.
Similarly, Ramey’s daughter, Martha Richeson Preddy, stated
that, during the years before she graduated from high school in
1966, the gates on the roads into Rose Hill from State Routes 615
and 714 were locked and that her father had the keys to the
locks. She also remembered that the property was posted with
"[n]o hunting" and "no trespassing" signs. [6] In fact, she and other members of the Richeson family
testified that they had never heard of the term "Free Hollow
Road" until this litigation commenced. Calvin Bailey, who
owns a parcel in Free Hollow, also had not heard the name
"Free Hollow Road." Bailey stated that he just knew
about a farm road that ran through the Richeson property.
John L. Pillow, one of the defendants,
testified that, when he and his wife purchased the Rose Hill farm
in 1989, there were locks on the gates and that he has kept the
gates locked continuously since then. He also stated that large
trees, probably 25 to 50 years old, were located in the old
roadbed and that, while some portions of the road were passable,
other parts contained creeks and a beaver swamp.
Several witnesses testifying for the plaintiffs
remembered using the road across the Rose Hill farm about 50
years ago for the purpose of cutting timber on the Free Hollow
property. More recently, Chris Alfred Rose cut timber in Free
Hollow for about three months in 1988. Rose stated that, during
that time, he never saw any locks on the gates that were located
on the road running through the Rose Hill farm to Free Hollow.
Roy Hudson also testified that, when he first went onto the Free
Hollow property around 1965, he did not see any locks on the
gates leading into the Free Hollow Road. In fact, Hudson stated
that he had not seen locks on the gates until he purchased a
portion of the Free Hollow property in 1995.
S. Vance Wilkins, Jr., one of the plaintiffs,
first purchased a tract of land in Free Hollow in 1966. Wilkins
testified that, when he told Ramey Richeson about the purchase,
Ramey volunteered to show Wilkins where the right of way across
the Richeson property was located. According to Wilkins, Ramey
drove him along the road and while doing so stated, "Here is
where the right of way is. The old right of way used to be over
here. This is what we use now. This is what you use."
Wilkins denied getting permission from Ramey to use the road
across the Rose Hill farm to access his property in Free Hollow
and stated that, when he went hunting on his property between
approximately 1966 and 1986, the gate through which he entered
the Free Hollow Road was not locked.
However, another witness, William Boyd Sale,
testified that he asked Ramey for permission to travel across the
Rose Hill farm when Sale was cutting timber in Free Hollow around
1987. Likewise, Harry B. Stinnett, Jr., confirmed that Ramey kept
the gates locked and controlled access to the road across the
Richeson property to Free Hollow.
ANALYSIS
Before addressing the merits of the issue
before us, we must consider the defendants’ motion to
dismiss this appeal. That motion is premised on the fact that the
plaintiffs changed the wording of their assignments of error.[7]
Because the original assignment of error number 2 and assignment
of error number 1 on brief both raise the question whether there
was sufficient evidence to support the chancellor’s finding
that the prescriptive easement over Free Hollow Road has been
abandoned, we will deny the motion to dismiss as to that issue.
Unlike the situation in Hamilton Dev. Co. v. Broad Rock Club,
Inc., 248 Va. 40, 44, 445 S.E.2d 140, 143 (1994), the
modification of this assignment of error has not enabled the
plaintiffs to argue either a different question on appeal or an
issue not presented to the chancellor. However, assignment of
error number 2 on brief is entirely different than the original
assignment of error number 4. Consequently, we will not consider
that assignment of error.[8] See id.
We now turn to the dispositive issue before us,
whether there was sufficient evidence to support the
chancellor’s finding that the prescriptive easement over the
Free Hollow Road has been abandoned. In addressing that issue, we
are guided by the following principles of appellate review. The
chancellor’s decision, reached after hearing evidence ore
tenus and resolving conflicts in that evidence, carries
the same weight as a jury’s verdict, and the
chancellor’s findings of fact will not be disturbed on
appeal unless they are plainly wrong or without evidence to
support them. Code ? 8.01-680; Rash v. Hilb, Rogal &
Hamilton Co., 251 Va. 281, 283, 467 S.E.2d 791, 793 (1996); Cushman
Virginia Corp. v. Barnes, 204 Va. 245, 254, 129 S.E.2d 633,
640 (1963); Rogers v. Runyon, 201 Va. 814, 816, 113 S.E.2d
679, 680 (1960).
The party claiming abandonment of an easement,
in this case the defendants, has the burden to establish such
abandonment by "clear and unequivocal evidence." Robertson
v. Robertson, 214 Va. 76, 82, 197 S.E.2d 183, 188 (1973)
(citing Lindsey v. Clark, 193 Va. 522, 525, 69 S.E.2d 342,
344 (1952)). "Nonuse of an easement coupled with acts which
evidence an intent to abandon or which evidence adverse use by
the owner of the servient estate, acquiesced in by the owner of
the dominant estate, constitutes abandonment."[9] Robertson,
214 Va. at 81, 197 S.E.2d at 188; accord Pizzarelle v.
Dempsey, 259 Va. 521, 528, 526 S.E.2d 260, 264 (2000). If the
party asserting abandonment relies upon nonuse of the easement
coupled with an adverse use by the owner of the servient estate,
that adverse use must continue for a period of time sufficient to
establish a prescriptive right. Lindsey, 193 Va. at 525,
69 S.E.2d at 344 (citing Watts v. C.I. Johnson & Bowman
Real Estate Corp., 105 Va. 519, 525, 54 S.E. 317, 319
(1906)). However, mere nonuse will not suffice to establish an
abandonment. Id.
The plaintiffs argue that, while the use of the
Free Hollow Road over the Rose Hill farm was sporadic after the
1960’s when the last resident left Free Hollow, there was
never a cessation of that use. They also contend that the record
is devoid of any evidence of an intent to abandon the easement
and that, while the chancellor may have found an adverse use of
the easement by the defendants, the evidence was not
"unequivocal" on that issue. Thus, the plaintiffs
assert that the defendants did not prove, by clear and
unequivocal evidence, an abandonment of the prescriptive easement
over the Richeson property to Free Hollow. We do not agree with
the plaintiffs.
The evidence before the chancellor was disputed
with regard to the issue of abandonment. The chancellor resolved
those conflicts and concluded that the road has been in disuse
for many years, as reflected by the overgrowth of brush and large
trees in the roadway. The chancellor further found that, after
1962, the gates through which anyone using the Free Hollow Road
would have had to pass in order to travel over the Richeson
property to Free Hollow have been locked, and that individuals
using the road did so only with the permission of the owners of
the Richeson property. Upon our review of the record, we cannot
say that the chancellor’s findings are plainly wrong or
without evidence to support them. Those findings establish an
abandonment, i.e., nonuse of the easement coupled with acts by
the servient owners that were "inconsistent with," or
adverse to, "the future enjoyment" of the easement by
the dominant owners for a period of time sufficient to create a
prescriptive right. Scott v. Moore, 98 Va. 668, 686, 37
S.E. 342, 348 (1900); see also Pizzarelle,
259 Va. at 530, 526 S.E.2d at 265 (placement of fence, trees, and
shrubs in easement reflect intent to adversely use easement for
purpose other than ingress and egress). Thus, we will not disturb
the chancellor’s decision. Rash, 251 Va. at 283, 467
S.E.2d at 793.
Nevertheless, the plaintiffs argue that
permission, or lack thereof, to use the Free Hollow Road is
irrelevant to the question whether a prescriptive easement,
already established, has been abandoned. The plaintiffs contend
that permission goes to the creation of a prescriptive easement
and that, once such an easement has been established, the
question of permission is moot. We do not agree. Once a
prescriptive easement has been created, if the servient owners
then start requiring permission to use that easement, as was done
in this case, that requirement is indicative of a measure of
control over the easement that is adverse to the enjoyment of the
easement by the dominant owners. Furthermore, the chancellor did
not base his finding of abandonment solely on the question of
permission.
The plaintiffs also assert that the chancellor
rested his decision, in part, on the fact that portions of the
Free Hollow Road had been changed. [10]
In the letter opinion, the chancellor
discussed the "new" road. However, in the final decree,
the chancellor found "clear and unequivocal evidence
. . . constituting abandonment of said old ‘Free
Hollow Road.’ " That is the issue before us. While
the chancellor also found in the final decree that "[t]he
plaintiffs have not sustained their burden showing that the right
of way continued in a different location," that issue was
contained in one of the plaintiffs’ assignments of error
that they failed to brief or argue. See note 8, supra.
For these reasons, we will affirm the judgment
of the circuit court.[11]
Affirmed.
JUSTICE LEMONS, concurring.
The discrepancy between the trial court’s
letter opinion and its Final Decree creates confusion in the
resolution of this case. The evidence in this case concerns two
separate roads, the "old Free Hollow Road" and a
deviation from that easement, variously called the "new
road" or the "farm road."
In its Final Decree, the trial court found
that:
4. The plaintiffs sustained their burden of
proving a prescriptive easement over the old "Free Hollow
Road" from Free Hollow to the location of present day State
Route 714 near its intersection with State Route 615. However,
clear and unequivocal evidence indicates non-use of the easement
coupled with acts which indicate an intention to abandon or which
evidence adverse use by the owners of the servient estate (Rose
Hill) acquiesced in by owners of the dominant estate (Free
Hollow) constituting abandonment of said old "Free Hollow
Road."
5. The plaintiffs have not sustained their
burden of showing that the right of way continued in a different
location.
By contrast, in its letter opinion, referring
to the changed location, the trial court stated, "[i]t is
the Court’s finding that no easement was created by the
occasional use of this road by persons who had the permission of
the owner." At the heart of this confusion is the failure to
clearly distinguish between moving an existing easement and
creating a new easement, and the corollary problem of identifying
which path of the easement, old or new, is the focus of proof of
abandonment.
The majority opinion correctly points out that
we review the judgment of the trial court which found abandonment
of the "old Free Hollow Road," and no establishment of
Hudson’s right to utilize the "new road." Most of
Hudson’s evidence on the subject is related to lack of
abandonment of the new road. Unfortunately, the trial court
relied upon and cited evidence concerning both roads to support
its conclusion of abandonment of the old road.
The burden of proof of abandonment of an
existing easement lies upon the party claiming the abandonment
and must be established by "clear and unequivocal"
evidence.
Nonuse of an easement coupled with acts which
evidence an intent to abandon or which evidence adverse use by
the owner of the servient estate, acquiesced in by the owner of
the dominant estate, constitutes abandonment. The burden rests
upon the party claiming such abandonment to prove it by clear and
unequivocal evidence. Lindsey v. Clark, 193 Va. 522, 525,
69 S.E.2d 342, 344 (1952). See also Lipscomb v.
Commins, 212 Va. 543, 186 S.E.2d 74 (1972); 1 Minor
[on Real Property ? 109 (2d ed. F. Ribble 1928)].
Robertson v. Robertson, 214 Va.
76, 81-82, 197 S.E.2d 183, 188 (1973).
The evidentiary standard of "clear and
unequivocal" requires a different level of proof than the
more familiar standard of "clear and convincing." Fred
C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41, 211
S.E.2d 88, 92 (1975). "Clear and unequivocal" is at
least as high a standard of proof as that of "beyond a
reasonable doubt," if not higher. See Addington v.
Texas, 441 U.S. 418, 432 (1979)(noting that "[t]he term
‘unequivocal,’ taken by itself, means proof that admits
of no doubt, a burden approximating, if not exceeding, that used
in criminal cases"). Moreover, as we said in Pizzarelle
v. Dempsey, 259 Va. 521, 529, 526 S.E.2d 260, 264 (2000), the
evidence is not unequivocal unless it is "free from
uncertainty."
While the evidence of abandonment of the
"old Free Hollow Road" is, as the majority correctly
states, sufficient to satisfy the heightened evidentiary burden,
if the issue were the abandonment of the "new road," I
would find the evidence insufficient. However, the trial
court’s Final Decree recites that "[t]he plaintiffs
have not sustained their burden showing that the right of way
continued in a different location." From this determination,
there is no assignment of error before us.
The burden of proving abandonment of the
easement by clear and unequivocal evidence is upon Pillow. The
burden of proving movement of the easement by the preponderance
of the evidence is upon Hudson. These are distinct issues, both
of which are addressed in the trial court’s judgment;
however, only the former is before us on appeal.
Because both the trial court and the majority
opinion mix proof of abandonment of both roads, I write
separately to distinguish precisely the narrow issue before us on
appeal, and emphasize that the heightened burden of proof was met
only as to this narrow issue.
FOOTNOTES:
[1] The plaintiffs acquired their
respective portions of the Free Hollow property primarily from
the Commonwealth of Virginia, after the parcels had been
escheated to the Commonwealth.
[2] The defendants acquired the Rose Hill farm from the
heirs and devisees of W. H. Richeson, Sr., in November 1989.
Ruth and Nell are granddaughters of W. H. Richeson, Sr.
[3] At an ore tenus
hearing, the chancellor made certain findings from the bench and
concluded that a right of way does not currently exist across the
Rose Hill farm. The plaintiffs then filed a motion to reconsider.
After hearing additional testimony, the chancellor issued his
letter opinion.
[4] Ramey is one of the sons of
W. H. Richeson, Sr. Ramey conveyed his interest in the Rose
Hill farm to the defendants.
[5] Hugh is also one of the sons of
W. H. Richeson, Sr. Hugh likewise conveyed his interest in
the Rose Hill farm to the defendants.
[6] The defendants introduced receipts showing the purchase
of locks in 1965, 1966, and 1975, and posted signs in 1969, by
W. H. Richeson, Jr. He helped Ramey farm the Richeson
property after W. H. Richeson, Sr., died.
[7] The assignments of error set
forth in the petition for appeal were:
1. The trial court erred in finding
that the Appellants bore the burden of proving that their
use of the Free Hollow road continued in its historical
or modified location, after the Court found that a right
of way by adverse possession had been established by the
Appellants.2. The trial court erred in denying
Appellants’ Bill of Complaint for injunction relief
seeking use of the Free Hollow road by holding that the
Appellants did not meet their burden of proof regarding
(a) abandonment by Appellants, (b) permissive use by
Appellants or (c) adverse possession by the Appellees of
Appellants’ right of way.3. The trial court erred in its finding
of fact related to the testimony of Vance Wilkins and
Chris Rose regarding permissive use.4. The trial court erred in finding
that the Appellants did not establish a right of way by
necessity or implication.5. The trial court erred in amending
its Final decree to read "continued in a different
location."
The assignments of error contained in the
plaintiffs’ brief are:
1. The trial court erred in finding
that the prescriptive easement over Free Hollow Road has
been abandoned.2. The trial court erred by making no
finding whether the Appellants established a right of way
by necessity or implication.
[8] We also note that the plaintiffs have neither briefed
nor argued their original assignments of error numbers 1, 3, and
5. Thus, we will not consider them. Jenkins v. Commonwealth,
244 Va. 445, 451, 423 S.E.2d 360, 364 (1992).
[9] In the Restatement (Third) of
Property ? 7.7 (2000), the adverse use of an easement by a
servient owner is referred to as "extinguishment by
prescription."
[10] The evidence showed that the entrance to the Free
Hollow Road had been relocated, the original gate had been
replaced with a fence, and the course of the road had been
changed in one place.
[11] In light of our decision, we do not reach the
assignments of cross error.
