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JACKSON, et al.

January 14, 2000

Record No. 990333






PRESENT: Carrico, C.J., Compton, Lacy, Hassell,
Koontz, and Kinser, JJ., and Whiting, Senior Justice

F. Ward Harkrader, Jr., Judge

In this appeal, we consider (1) whether the
user of a right of way is bound by a prior judicial decision, to
which he was not a party, that no such right of way existed, and
(2) if not so bound, whether the user established his claimed
right of way. After hearing evidence on these issues, the trial
court held in favor of the user. The servient owner appeals.

In March 1980, George R. Holladay and Catharine
M. Holladay, his wife (collectively Holladay), conveyed 4.976
acres from his 176.38-acre farm in Orange County to A. Russell
and Frances R. Barbee (the Barbees). The 4.976-acre tract
contained a pipestem at its northwest corner that ran in a
north-south direction. Part of the 30-foot right of way in
dispute ran along the east side of the approximately 43-foot wide

The 4.976-acre tract and right of way were
purportedly shown and described in a plat of survey attached to
and made a part of the deed (the Holladay-Barbee plat). The deed
contains the following provision:

The property conveyed hereby is conveyed
subject to a nonexclusive 30′ foot right of way leading from
Virginia State Route 673
along the lines of Grimsby and
Peyton, as shown on said plat, which said nonexclusive
right of way is hereby reserved for the benefit of the residue of
the property retained by the [Holladays].

(Emphasis added.)

Contrary to the description in the deed, the
Holladay-Barbee plat did not show that the 30-foot right of way
led from State Route 673 (Route 673). Instead, the plat showed
that the right of way led in a southerly direction from the
southern boundary of a .0474-acre parcel (the corral) which was
situated between Route 673 and the northern edge of the right of

The Barbees acquired the corral from a person
other than Holladay. In 1984, they conveyed the corral and the
4.976-acre tract to E. Alan Knewstep, III, and another person.
Subsequently, Knewstep acquired the other person’s interest.

In 1986, Holladay conveyed three acres of the
farm south of Knewstep’s 4.976 acres to Charles L. Jackson and
Nancy W. Jackson together with the right to use the 30-foot
easement to Route 673. The northern portion of the right of way
was shown on an attached plat as turning to the west across
Knewstep’s pipestem to connect to Route 673.

When Knewstep refused to permit the Jacksons to
cross the pipestem to reach Route 673, they filed a suit against
him in which they sought to establish the right of way over
Knewstep’s 4.976-acre tract and the corral to Route 673. Holladay
was not a party to that suit.

Reversing the trial court’s ruling that the
right of way extended to Route 673, we said:

The Holladay-Barbee plat shows the following:
(1) the 4.976-acre tract contains a pipestem at its northwest
corner; (2) the pipestem does not touch any portion of State
Route 673; and (3) the 30-foot right-of-way within the pipestem
is on the eastern boundary of the pipestem and does not touch any
portion of the western boundary of the pipestem.

Knewstep v. Jackson, 248 Va. 300, 302,
448 S.E.2d 609, 610, (1994). (Knewstep I).

Accordingly, we held:

The deed from the Holladays to the Barbees
makes apparent that the easement reserved is "as shown
on" the Holladay-Barbee plat. Clearly, the easement "as
shown on" the plat does not connect with State Route 673.
Additionally, the evidence is undisputed that the Holladays
never owned an easement that connected to State Route 673
and, obviously, they could reserve only that which they owned.

Id. at 303, 448 S.E.2d at 611 (emphasis

Knewstep later filed an action at law against
the Jacksons to establish the boundary line between their
properties and joined Holladay as an additional defendant in an
amended motion for judgment. Holladay still owned most of the
farm from which he had conveyed the Knewstep and Jackson

Holladay filed a cross-bill in which he sought
to reform the Holladay-Barbee plat to correct its allegedly
erroneous depiction of the location of the right of way as
beginning on the south side of the corral.
[1] At a
hearing before the court, Holladay sought the recordation of a
corrected survey to reflect that the right of way turned to the
west across Knewstep’s pipestem to reach Route 673. After hearing
evidence, the court decreed that the plat would be reformed and
recorded as requested and also established the respective
Knewstep and Jackson boundary lines. Knewstep appeals from that
part of the judgment which ordered reformation of the plat.

Knewstep contends that the issue of Holladay’s
right to provide access to Route 673 was settled in Knewstep I,
and that Holladay is bound by that holding in accordance with
principles of stare decisis. We find no merit in
this contention.

As we noted in Commercial Business Systems,
Inc. v. Halifax Corporation
, 253 Va. 292, 297, 484 S.E.2d
892, 894 (1997), "under the doctrine of stare decisis,
the principles of law as applicable to the state of facts in [an
earlier case] will be adhered to, and will apply in later cases where
the facts are substantially the same
, even though the parties
are different." (Emphasis added.) In this case, however, the
facts are not substantially the same. In Knewstep I,
apparently there was no effort to reform the Holladay-Barbee
plat, and it was not reformed. In the present case, however,
Holladay, not a party to Knewstep I, sought reformation of
the plat.

Additionally in Knewstep I, the evidence
was "undisputed that [Holladay] never owned an easement that
connected to State Route 673." 248 Va. at 303, 448 S.E.2d at
611. In contrast, Holladay, after qualifying as an expert witness
on the subject of surveying "with long familiarity of many
generations with the property," testified in this case that
he had such an easement. Holladay’s claim is grounded in part on
Code ? 33.1-184 which provides in pertinent part that
"the center line of passage [of a public road] shall be
presumed to be the center of the way and in the absence of proof
to the contrary the width shall be presumed to be thirty
feet." This statutory provision applies to public roads
acquired by grant. Commonwealth v. Kinzie, 165 Va. 505,
510-11, 183 S.E. 190, 193 (1936)

In support of his claim of an easement to Route
673, Holladay testified essentially as follows: The western edge
of the 43-foot wide pipestem was the center line of Route 673
which is presumed to be 15 feet on each side of its center line.
This meant that the eastern half of Route 673 encompassed the
western 15 feet of the pipestem. On or before 1946, a part of
Route 673 was relocated to eliminate a sharp corner adjacent to
the pipestem by creating a gradual curve immediately to the west
of the corner. Although the eastern edge of the relocated gradual
curve did not abut the right of way, it was within 13 feet of the
western edge of the 43-foot wide pipestem.

There had apparently been no statutorily
required proceedings to terminate the public easement in the
15-foot eastern area encompassed by the former sharp corner.
Thus, Holladay and his grantees, as members of the public, had
the right to cross the 13-foot gap between the western edge of
their 30-foot right of way in the pipestem and the relocated
Route 673. See Ord v. Fugate, 207 Va. 752, 758, 152
S.E.2d 54, 59 (1967) (decided under statutes revised in 1950); Moody
v. Lindsey
, 202 Va. 1, 6, 115 S.E.2d 894, 898 (1960) (decided
under statutes still in effect after 1940 and before 1950).

Hence, there was evidence in this case that
Holladay had an easement to Route 673. Accordingly, we reject
Knewstep’s stare decisis argument.

Next, Knewstep asserts the preclusive effects
of collateral estoppel, laches, and the statute of limitations
"as more particularly set forth in Knewstep’s Memorandum of
Law and Reply Brief filed in the Circuit Court." We do not
consider arguments based on memoranda and briefs filed in the
trial court. Swisher v. Commonwealth, 256 Va. 471, 478,
506 S.E.2d 763, 767 (1998) cert. denied, ___U.S. ___, 120
S.Ct. 46 (1999). Hence, we take no notice of these contentions.

Since we conclude that Holladay was not bound
by Knewstep I, we turn to the merits of Knewstep’s appeal.
First, Knewstep contends Holladay failed to produce the required
clear and convincing evidence that the Barbees shared Holladay’s
mistaken belief that the reserved right of way turned to the west
across Knewstep’s pipestem to reach Route 673. See Ayers
v. Mosby
, 256 Va. 228, 233, 504 S.E.2d 845, 848 (1998) (clear
and convincing evidence required to support reformation of
instrument because of mutual mistake of fact). Holladay responds
that there was sufficient clear and convincing evidence to
establish the mutual mistake of fact required to support a
reformation of the plat.

We agree with Holladay. Although the internal
inconsistency previously noted between the Holladay-Barbee deed
and its plat suggests that the grantors and grantees may have
been mutually mistaken about the location of the right of way
near Route 673, more significant evidence supports the finding of
a mutual mistake of fact.

Holladay, the only party to the Holladay-Barbee
deed who testified, stated that a gravel driveway located at the
northern end of the right of way crossed Knewstep’s pipestem in a
westerly direction to reach Route 673 and that he and others,
including the Barbees, used the driveway as a means of access to
and from Route 673. In his testimony, Holladay also referred to
the 30-foot right of way shown on a plat attached to the
Holladays’ 1977 deed for another part of the farm to George M.
Peyton and Elisabeth F. Peyton (the Holladay-Peyton plat). The
Holladay-Payton plat was recorded with the deed and corroborated
Holladay’s testimony by showing the right of way crossed
Knewstep’s pipestem in the manner described by Holladay.

Knewstep traces his title from Barbee who
acquired Knewstep’s 4.976 acres of Holladay’s larger tract from
Holladay after Holladay’s conveyance to Peyton. All these
conveyances apparently being duly recorded and indexed, Knewstep
acquired constructive notice that Holladay-Payton right of way
bound his property. See Allen v. Green, 229 Va.
588, 594, 331 S.E.2d 472, 476 (1985); Chavis v. Gibbs, 198
Va. 379, 382, 94 S.E.2d 195, 197 (1956).

Additionally, Holladay’s testimony supported an
inference that the Barbees had actual notice of the correct
location of the easement when they accepted the Holladay-Barbee
deed. This notice arose from the visible presence of the gravel
driveway and its use by Holladay and others to whom he had
granted similar rights of way over the pipestem. The presence and
use of this visible driveway were sufficient to support an
inference that the driveway evidenced an easement by implication
applicable to the Barbee-Knewstep parcel and binding upon the
current owners. See Scott v. Moore, 98 Va. 668,
683-84, 37 S.E. 342, 347 (1900).

We think that the foregoing evidence was
sufficiently clear and convincing to uphold the court’s implied
finding that the Barbees were aware, and believed, that the right
of way was intended to be shown on the Holladay-Barbee plat as
turning to the west across the pipestem in order to reach Route
673. Hence, we reject Knewstep’s contention that "[t]here
certainly is no evidence to support any conclusion that the
Barbees were operating under any mutual mistake of fact."

In sum, we conclude (1) that there was
sufficient clear and convincing evidence to support the court’s
finding of a mutual mistake of fact in the location of the
easement in the Holladay-Barbee plat, and (2) that Holladay had a
right to burden the northern portion of the pipestem to the right
of way in order to reach Route 673. Thus, the court correctly
decreed that an amended plat be recorded to show the correct
location of the easement.

Accordingly, we will affirm the final decree in
that respect. However, since the amended plat shows part of the
easement as crossing the corral, and we find no evidence to
support that conclusion, we will reverse the decree in that
respect and remand the case to the trial court with directions to
have the amended plat further modified to eliminate the part of
the easement crossing the corral.

Affirmed in part, reversed in part, and



[1] This action at law was filed
under the provisions of Code ? 8.01-179. Yet the clerk
docketed it as a chancery suit. Since the parties and the court
have treated the matter as a chancery suit, we also do so. See
Brown v. May, 202 Va. 300, 309, 117 S.E.2d 101, 108 (1960)
(appellate court will not consider transfer from equity to law
side if issue not raised in trial court).