Home / Fulltext Opinions / Supreme Court of Virginia / SHENANDOAH ACRES v. D.M. CONNER



September 18, 1998
Record No. 972263




Thomas H. Wood, Judge

Present: All the Justices

In these appeals we consider whether the trial court properly
determined that the owner of a non-exclusive easement may limit
access to the easement by the servient landowner and its lessee.


Since 1957, D.M. Conner, Incorporated (Conner) and its
predecessors have held a mineral interest in the northeastern
corner of property owned by Shenandoah Acres, Incorporated
(Shenandoah) for the purpose of mining sand and gravel. In June
1982, by deed of exchange, Shenandoah granted to Conner’s
principal shareholder and his wife a 50-foot easement from State
Route 660 running east along the northern edge of Shenandoah’s
property to an adjacent parcel owned by the couple in exchange
for the release of an existing right-of-way over Shenandoah’s
property. This easement was subsequently transferred to Conner by
deed dated March 25, 1987.
Conner constructed and maintains a 30-foot wide, surface-treated
road within the easement connecting Conner’s mining operations on
Shenandoah’s property with State Route 660. These improvements
include a locked gate at the point where the road meets the state
highway. Conner’s sole current use of its easement is for access
from the mining operation on Shenandoah’s property to the highway
over this road.
In November 1996, Shenandoah decided to terminate its mining
agreement with Conner and entered into a lease agreement with
Acres Sand & Stone, L.L.C. (Acres Sand), for use of a portion
of Shenandoah’s property. The purpose of this lease is to allow
Acres Sand to conduct mining operations within the leasehold. The
leasehold area covers approximately 144 acres of Shenandoah’s
property, including that portion currently being mined by Conner.[1] The lease further provides that
Acres Sand will have use of the same right-of-way between State
Route 660 and the leased premises previously granted to Conner.
Although Acres Sand had not begun mining operations at the time
of trial, it was surveying a portion of the leasehold and making
initial preparations to open a mine in an area nearer to Route
660 and west of Conner’s mining operations. Acres Sand plans to
build a spur road to connect its mine to the road on the
In February 1997, Shenandoah requested that Conner either
relocate its gate to a point nearer Conner’s mining operations,
or permit Shenandoah to have joint control over the gate in its
current location. Conner refused these requests. On April 4,
1997, Shenandoah constructed a "loop" from the highway
to the road to bypass Conner’s gate. Shenandoah secured the loop
with a second locked gate. That same day, Conner parked a road
grader on the easement road blocking the bypass.
On April 7, 1997, Conner filed a bill of complaint seeking a
temporary injunction against Shenandoah and Acres Sand to
prohibit their interfering with Conner’s use of the easement,
tampering with the existing form of the right-of-way, and
disturbing the existing security for Conner’s mining operations
until Conner’s property rights in the disputed portion of the
leasehold could be determined. On April 9, 1997, Shenandoah and
Acres Sand jointly filed a separate bill of complaint seeking an
injunction prohibiting Conner from interfering with their use of
the easement area.
Although not formally consolidated by the trial court, the two
suits were considered together in the course of two ore tenus
hearings. At those hearings, the parties offered evidence on the
current and proposed uses of the easement. Shenandoah indicated
that its current use of the easement was limited to checking the
property two or three times a week. Acres Sand offered evidence
that it planned to begin mining operations within three months,
but that its current use of the easement involved only survey and
site preparation work. Once mining operations begin, Acres Sand
intends to use the easement road to move equipment into its
mining area and remove gravel and sand in dump trucks.
Conner offered testimony that continued use of the easement road
was necessary for its mining operations on Shenandoah’s property.
Conner also presented evidence regarding the security
requirements of the mining operations imposed by state
regulation, and maintained that it was necessary to keep its gate
locked during non-business hours. In commenting on the evidence,
the chancellor expressed concern that permitting Shenandoah and
Acres Sand unlimited access to the easement might compromise the
security of Conner’s mining operations.
The trial court subsequently entered identical orders in each
case in which it found that Conner’s easement was not exclusive,
and that "[Shenandoah] retained the right to use the
easement for any purposes which are not inconsistent with the use
of the easement by [Conner], and conversely, cannot make any use
of the easement which is inconsistent with the rights granted to
[Conner]." The trial court further ordered that Shenandoah
and Acres Sand could use the easement only during Conner’s
"regular business hours." The orders are silent as to
Shenandoah’s and Acres Sand’s request for injunctive relief. We
awarded Shenandoah and Acres Sand these appeals.


We begin by noting that the final orders of the trial court
were based on the easement granted by Shenandoah to Conner’s
principal shareholder and his wife in the 1982 deed and
subsequently transferred to Conner in the 1987 deed. We further
note that none of the parties assigns error to the trial court’s
determination that the easement is non-exclusive. Where error is
not assigned to the holding of the trial court, that holding
becomes the law of the current case and the basis for our
decision. Trustees of Asbury United Methodist Church v. Taylor
& Parrish, Inc.
, 249 Va. 144, 154, 452 S.E.2d 847, 852
(1995). Accordingly, we will limit our review to the dispositive
issue of whether the specific facts of this case would warrant
permitting the owner of a non-exclusive easement to restrict the
access of the servient landowner and its lessee.
Under well-settled principles, a conveyance of an easement that
is non-exclusive does not strip the servient landowner of its
right to all use of the land. Walton v. Capital Land, Inc.,
252 Va. 324, 326, 477 S.E.2d 499, 501 (1996). The servient
landowner retains the right to use its property in any manner
that does not unreasonably interfere with the lawful dominant
use. Id. The servient landowner’s right to reasonably use
the land includes the right to grant to others additional
easements to use the same land so long as the additional uses are
not unreasonably burdensome or inconsistent with the existing
dominant uses of the easement. Preshlock v. Brenner, 234
Va. 407, 410, 362 S.E.2d 696, 698 (1987).
The party alleging such an unreasonably burdensome or
inconsistent use has the burden of proving this allegation. Hayes
v. Aquia Marina, Inc.
, 243 Va. 255, 259, 414 S.E.2d 820, 822
(1992). Any use of a non-exclusive easement may be protected by
an injunction prohibiting an interfering use when the harm from
the interfering use is irreparable and cannot be adequately
addressed in damages. Black & White Cars, Inc. v. Groome
Transp., Inc.
, 247 Va. 426, 431-32, 442 S.E.2d 391, 395
(1994). However, the party seeking relief must show that the
alleged harm is imminent, and not merely speculative or
potential. See Ridgwell v. Brasco Bay Corp., 254
Va. 458, 462-63, 493 S.E.2d 123, 125 (1997).
Here, Conner failed to show any significant actual conflicting
use of the easement by Shenandoah and Acres Sand. Furthermore,
any determination regarding the reasonableness of Shenandoah’s
and Acres Sand’s future use of the easement, when such use is not
imminent, is necessarily speculative. Similarly, Conner’s
concerns over potential criminal acts or liability arising from
trespassers are, at best, speculative. Accordingly, we hold that
Conner did not meet its burden to show that any actual or
imminent use by Shenandoah or Acres Sand would irreparably harm
or unreasonably interfere with Conner’s use of the road within
its easement.
The trial court, having determined that Conner’s easement is
non-exclusive, may not craft an order creating a de facto
exclusive easement. Allowing the servient landowner’s use of an
easement to be limited by Conner’s flexible and arbitrary choice,
such as its hours of operation, creates just such a de facto
exclusive easement and is improper. Rather, any limitation on
subsequent uses of the easement should be imposed narrowly and in
such a manner as to prohibit only actual material interference
with the existing dominant uses of the easement. See generally,
Hayes, 243 Va. at 258, 414 S.E.2d at 822.
For these reasons, we will reverse the trial court’s judgment in
the suit initiated by Conner limiting Shenandoah and Acres Sand
to the use of the easement only during Conner’s hours of
operation and enter final judgment for Shenandoah and Acres Sand.
Because the trial court failed to address Shenandoah’s and Acres
Sand’s request for an injunction prohibiting Conner’s
interference with their use of the easement, we will reverse the
judgment in that suit and remand the case for further proceedings
consistent with this opinion.
Record Nos. 972263 and 972266 – Reversed, remanded,
and final judgment.



[1] At the time Shenandoah and
Acres Sand entered into this lease, the nature and extent of
Conner’s interest in Shenandoah’s property and its right to
continue its mining operation there were in dispute and were
already the subject of other litigation. Pending the resolution
of that litigation, Acres Sand is limited by its special use
permit to conduct mining operations only on the undisputed
portion of its leasehold. Because Conner’s interest in
Shenandoah’s property and its right to continue mining operations
there were not issues in the suits from which these appeals
arise, we express no opinion on these issues or the effect of the
resolution of that litigation on the issues reviewed in this