By Catrina C. Waltz, James L. Windsor, Real Estate Claims & Title Insurance Solutions

On Tuesday, the Court of Appeals of Virginia issued a significant decision concerning easements in Barr, et al. v. Garten Development, LLC. The Court held that where a deed that released “easements” conveyed by a previous deed did not clearly also release a “right of way” of ingress and egress conveyed in the previous deed, the right of way was still in effect, and, specifically, the right of way was sufficient in size and nature to allow for its intended purpose at the time it was first granted.

Relevant Facts
The case centers around property in Alleghany County, in which the Barrs and Garten own adjacent parcels. Garten accesses its property (“Garten Parcel”), the dominant estate, by a private gravel road (the “Road”) that crosses the Barrs’ property (“Barr Parcel”).

Before 1941, the properties owned by the Barrs and Garten, respectively, were part of a single tract owned by Miller and Crowder. In a 1914 Deed, Miller and Crowder conveyed a 99-acre tract, which is now the Barr Parcel, to Shue. The 1914 Deed conveyed only surface rights to Shue and reserved mineral and mineral development rights. Specifically, the 1914 Deed reserved various “rights of way” across the Barr Parcel for purposes of transporting material and accessing the property: “to reserve all necessary rights of way, privileges and easements … for the development of the mineral property in that section, and more particularly for the proper ingress and egress of [Miller and Crowder] or their successors or assigns to the lands now owned by [Miller and Crowder].” While the 1914 Deed did not specify the locations of any of the rights of way, it did reserve a right of “proper ingress and egress” across the Barr Parcel to the current Garten Parcel.

In 1947, Cline acquired the Garten Parcel by a deed which expressly conveyed “all rights reserved” in the 1914 Deed. The 1947 Deed specifically conveyed a right of way shown on the plat, which corresponds to the location of the Road in controversy. In 1958, Cline conveyed the Garten Parcel to H.O. Bensel. The 1958 Deed also conveyed the identified Road and conveyed the rights originally reserved in the 1914 Deed. Following H.O. Bensel’s death, the Garten Parcel passed to Ursula Bensel, who conveyed it to Maria Bensel. Maria acquired “all the right, title, and interest” in the 1958 Deed.
In 1979, Maria still owned the Garten Parcel, and the Lowmans owned the Barr Parcel. Two deeds between the two were recorded back-to-back. The First 1979 Deed conveyed from the Lowmans to Maria certain water rights and a right of way over an “established road.” The Second 1979 Deed conveyed from Maria to the Lowmans, “all restrictions, easements and mineral rights in and over the [Barr Parcel].” After 1979, Maria conveyed the Garten Parcel to Westvaco Corporation, who later conveyed it to the Meys. The Meys sold the property to Garten in 2021.

The Barrs acquired their property by deed in 1992. The 1992 Deed referenced both the 1914 and 1979 Deeds, reflecting that only “certain” rights and reservations in the 1914 Deed were released in 1979, not all.

The Circuit Court Decision
In 2021, Garten sought to improve the Road to facilitate logging. The Barrs objected and filed a declaratory judgment action, seeking (1) to establish that Garten’s right of way was fixed to the location and width of the Road as reflected in a land survey they had commissioned and (2) to prevent Garten from improving or widening the Road. At trial, the Barrs claimed the 1979 Deeds released all rights of way reserved by the 1914 Deed and granted a new right of way, which is now fixed to the location and width of the Road as it existed in 1979. The Barrs presented evidence that the Road had not changed appreciably since its creation prior to 1979. In turn, Garten argued that the 1914 rights of way were never released and could be improved to facilitate reasonable uses of the Garten’s property. Garten presented evidence that its proposed improvements were modest and were necessary to comply with environmental regulations and guidelines. The circuit court entered judgment in Garten’s favor.

The Court of Appeals Decision

The 1979 Deeds did not Extinguish All Rights Reserved in the 1914 Deed Nor Create a New Right of Way
On appeal, the Barrs argued the circuit court erred in not finding that the 1979 Deeds extinguished all rights reserved in the 1914 Deed and created a new right of way over the Road as well as erred in not limiting the scope of the right of way to the dimensions as of 1979. The Court of Appeals held that the 1979 Deeds did not extinguish all rights reserved by the 1914 Deed, but rather, only released the mineral rights while confirming that the rights of ingress and egress, which were initially reserved in the 1914 Deed, extended to the recently-constructed Road. The rule of the Court was based, in part, by comparing the language in the 1914 and 1979 Deeds.

The 1914 Deed reserved four distinct categories of rights: minerals under the surface, rights of way for mining development, land for a furnace site or roe washing, and “rights of way … for the proper ingress and egress.” However, the Second 1979 Deed released “all restrictions, easements and mineral rights” in the Barr Parcel. Because this language failed to mention the specific category of rights reserved in the 1914 Deed (rights of way for ingress and egress), the Court held that the 1979 Deed did not release all rights reserved in the 1914 Deed.

The Barrs argued that Virginia law uses “easement” and “right of way” interchangeably such that the 1979 Deed did include all rights of way. However, the Court held that because the 1914 Deed differentiated between ingress and egress as “rights of way” and “privileges and easements,” “rights of way” carried a specific meaning in the 1914 Deed that was not encompassed by “easements and mineral rights” in the 1979 Deed. Further, the Court explained that, to the extent there is any ambiguity in the terms, by looking to parole evidence of the other instruments in the chain of title, the right of ingress and egress was always called a “right of way.” Thus, if Maria intended to release these rights in 1979, she would have used the phrase “right of way” or referred to the rights of way described in the 1947 and 1958 Deeds. This is also because the Virginia Supreme Court has held that the intent to relinquish must be shown by “clear and unequivocal evidence,” which is not evidenced in the 1979 Deeds. Lindsey v. Clark, 193 Va. 522, 535 (1952).

In addition, the Court noted that the 1992 Deed provided the conveyance was subject to rights reserved in the 1914 Deed, which purported to release “certain of said rights and reservations.” By using this language, the 1992 Deed demonstrated that the 1914 Deed was still, to some degree, viable, and that the Barrs were aware of its continued viability.

Garten’s Right of Way Must be Sufficient for Effectuating its Purpose
The Barrs also argued that the circuit court erred in finding that, pursuant to the 1914 Deed, Garten’s right of way was of an unspecified width for ingress and egress and all reasonable uses, including the removal of timber and wood products. The Court held that the 1979 Deeds only ratified that the rights of way in the 1914 Deed necessarily extended to the new road and that the 1914 Deed contained no limitation on width of the rights of way.  The Court further stated that, where no dimension is specified in a deed granting an easement, the easement’s scope is determined by the circumstances at the time of the grant. See Wakey v. Lewis, 224 Va. 206, 211 (1983). The circumstances at the time of the grant were clear from the 1914 Deed, which was a severance deed conveying only the surface of the Barr Parcel and reserving all mineral rights, along with easements and rights of way to exercise those rights. The 1914 Deed itself reflected that mining and industrial endeavors were intended for the Garten Parcel, which contemplated an allowance for removing and transporting timber, even after mineral excavation has ceased. Therefore, the dimensions of the right of way over the Road must be sufficient for Garten’s ingress and egress, including for the transportation of wood products. The Court held the circuit court thus correctly found that right of way could be improved to effectuate such purposes. Further, the Court noted that Garten sought to make only modest improvements that would not burden the servient estate or the Barrs financially, meaning the improvements are reasonably sufficient for the accomplishment of its industrial logging endeavors.

If you have any questions regarding this new opinion concerning easements, or questions regarding Virginia real property law in general, please contact Jim Windsor at (757) 873.6308 or jlwindsor@kaufcan.com, or Catrina Waltz at (804) 771.5744 or ccwaltz@kaufcan.com.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2024.