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PARKER, et al. v. PUTNEY

PARKER, et al. v. PUTNEY

September 12, 1997
Record No. 962149





Samuel T. Powell, III, Judge
Present: Carrico, C.J., Compton, Stephenson,[1] Lacy, Hassell, Keenan,
and Koontz, JJ.

This is an appeal in an equity suit in which the plaintiffs,
whose property fronts on a navigable river, seek declaration of
an implied easement by necessity across land of the defendant.

The sole issue is whether the trial court erred in finding
that privately owned boat landings along the river afford
plaintiffs reasonable access to their property via the river and
that this access is sufficient to deny the plaintiffs a right of
way by necessity.

The alleged dominant and servient tracts are situated near the
Chickahominy River in Charles City County. The river meanders in
many directions in the general area of the subject properties and
eventually flows into the James River a few miles away just below
a drawbridge carrying State Route 5 across the Chickahominy.

In the immediate area of the tracts in question, the
Chickahominy flows nearly due south. The properties lie west of
the river; they are bounded on the north by a branch of Old Neck
Creek, which flows into the Chickahominy. Route 627, a public
road, lies nearby and west of the subject lands.

In May 1995, appellants J. Russell Parker, III, James H. Pace,
Robert A. Wood, and Cleveland G. Humphrey, Jr., filed a motion
for declaratory judgment in chancery against appellee Anne W.
Putney (now Manson) asking the court to rule they are entitled to
an easement by necessity to afford them access to their land from
Route 627.

The plaintiffs are fee simple owners of 40.5 acres of
marshland fronting on the Chickahominy. This marsh is east of a
7.9-acre tract owned by defendant. Defendant’s land abuts Old
Neck Creek and lies between Route 627 and the plaintiffs’ land.
The plaintiffs seek access to their marsh by way of Old Neck
Creek utilizing a 30-foot wide non-exclusive easement, running
east from Route 627, which leads to a 20-foot wide north-south
easement running 377.41 feet across defendant’s property to the

The plaintiffs alleged that unless they are entitled to use of
the 20-foot easement their tract is landlocked. They asserted
there is "no other way for reasonable access" to their

Responding to the motion for declaratory judgment, the
defendant denied there is an implied easement by necessity. She
claimed that plaintiffs are seeking "an easement for
convenience" because "boat landings in the area already
provide access to the plaintiffs’ marsh."

Following a June 1996 ore tenus hearing, during which two of
the plaintiffs, the defendant, and her husband testified, the
chancellor found "that an easement by necessity does not
exist in favor of the plaintiffs." We awarded plaintiffs
this appeal from the August 1996 decree dismissing with prejudice
the motion for declaratory judgment.

The facts are undisputed. Title to both the plaintiffs’ and
defendant’s parcels is traced to a common grantor. The
plaintiffs’ land, which is composed of mud and swamp grass that
is under water at high tide, is used only for duck hunting; it is
accessible only by boat.

Upon acquisition of the property in 1990, the plaintiffs
mistakenly believed they had an express easement in the right of
way they now seek. Thus, apparently without defendant’s
knowledge, they cleared the land, built a pier, and for about a
year used the pier to launch small boats into Old Neck Creek to
hunt ducks in their marsh.

The defendant, who acquired her property in 1989, challenged
the plaintiffs’ right to the easement. The plaintiffs conceded
they do not have a valid express easement, and presented evidence
seeking to establish they are entitled to an easement by
necessity because the only other access to their land is the
Chickahominy River.

According to the evidence, the nearest public access to the
plaintiffs’ land via the river is Morris Creek landing, which is
7.5 miles downstream.

There are several privately owned places in the vicinity of
plaintiffs’ marsh where boats may be launched into the river. The
Brickyard, owned by "Newport News Shipbuilding" and
posted as private property, is 1.4 miles north of the plaintiffs’
land. Chickahominy Haven, a landing where a $4 launching fee is
charged and has "a cable across it at 4:00 in the
morning," is 1.8 miles from plaintiffs’ land. Hideaway
Marina is 3.1 miles away.

The evidence further showed that plaintiffs hunt the property
about "twice a week for six weeks" in December and
January. Access to the marsh, and to duck blinds, is by small
boats that can be hidden in the marsh. "Shooting time"
begins near 5:00 a.m.

There is usually fog in the area and the marsh is frozen at
times. A plaintiff testified that the "best duck hunting is
in the snow and the ice." When ice has formed, the hunters
are able to break the ice in Old Neck Creek "for a short

A plaintiff said, "You’re just taking your life in your
own hands" by trying to navigate a small boat on the
Chickahominy during duck hunting season; he stated hunters have
become lost on the river and have collided with each other. He
testified, "That’s the reason we bought the marsh because I
didn’t want to travel the river."

The applicable law is clear. "A right of way by necessity
arises from an implied grant or implied reservation of an
easement based on the common law presumption that a grantor of
property conveys whatever is necessary for the beneficial use of
the land conveyed and retains whatever is necessary for the
beneficial use of the property retained." Davis v. Henning,
250 Va. 271, 276, 462 S.E.2d 106, 108-09 (1995). "To
establish such a right, the alleged dominant and servient tracts
must have belonged to the same person at some time in the
past." Middleton v. Johnston, 221 Va. 797,
802, 273 S.E.2d 800, 803 (1981).

There must be a showing by clear and convincing evidence that
the way is reasonably necessary, not absolutely necessary, to the
enjoyment of the dominant estate. Id. at 803, 273 S.E.2d
at 803. Accord Davis, 250 Va. at 276, 462 S.E.2d at
109. But, a way of necessity will not be established if there is
another way of access, although less convenient and which will
involve some labor and expense to develop. Middleton, 221
Va. at 803, 273 S.E.2d at 803.

Upon conclusion of the hearing in this cause, the chancellor,
in ruling against the plaintiffs, reviewed the principles of law
that we have just recited. After finding that the dominant and
servient estates belonged at some time to the same landowner, the
chancellor concluded "there’s no question" that the
plaintiffs’ marsh "has access to a public road, i.e., the
Chickahominy River."

The court ruled that plaintiffs have access to the privately
owned Brickyard and Chickahominy Haven landings, and that the
Morris Creek and Hideaway landings "are too far away and are
not reasonable to launch a boat from . . . to come up
to the plaintiffs’ property." Summarizing, the chancellor
stated: "Most of my premise is that the Chickahominy River
is a public access, and that’s the equivalent of being on U.S.
Route 60"; the court said this constituted "legal
access to a public road." We disagree with the trial court’s

In Davis, we stated that the access contemplated for an
easement by necessity is a "legal" right of access. 250
Va. at 277, 462 S.E.2d at 109. The plaintiffs have no legal right
to use either Brickyard or Chickahominy Haven, both privately
owned. Any use of those landings which the plaintiffs may now
enjoy (the evidence showed a plaintiff had used Brickyard in the
past) can be immediately terminated by the respective owners.

Furthermore, while persons may lawfully travel the
Chickahominy River as members of the public, and in this sense
the use is "legal," this use cannot be accurately
compared to the public’s use of a public road. Rather, because a
river may be entered and exited only at places suitable for the
purpose, use of the river is more properly compared to the
public’s use of a limited access highway, as the plaintiffs

And, the evidence is undisputed that once a person enters the
river during duck-hunting season, the weather and tidal
conditions make travel on the river hazardous in connection with
the plaintiffs’ use of their land. Thus, we conclude that the
plaintiffs’ "legal" access to the river is not
reasonable under the circumstances.

Our decision is consistent with the views of courts in other
jurisdictions. A showing of access to land across navigable water
may in some circumstances defeat a claim of an easement by
necessity. Morrell v. Rice, 622 A.2d 1156, 1159
(Me. 1993). However, the modern view is that a way of necessity
may exist, even though the dominant estate borders on a waterway,
"if the water route is not available or suitable to meet the
requirements of the uses to which the property would reasonably
be put." Hancock v. Henderson, 202 A.2d 599,
602 (Md. 1964). This is such a case. See generally
E. L. Kellett, Annotation, Easements: Way By Necessity Where
Property Is Accessible By Navigable Water
, 9 A.L.R. 3d 600,
608-11 (1966).

Accordingly, the decree below in favor of the defendant will
be reversed. And, because there is no objection by defendant
regarding the location and route of the easement, final judgment
will be entered here declaring that the plaintiffs have an
easement by necessity across the 20-foot wide way over the
defendant’s property to Old Neck Creek.

Reversed and final judgment.




[1] Justice Stephenson participated
in the hearing and decision of this case prior to the effective
date of his retirement on July 1, 1997.