Forbes v. Cantwell

78 Va.App. 454

891 S.E.2d 742

James Wenzel FORBES, et al. v. Jason W. CANTWELL

Record No. 0212-22-3

Court of Appeals of Virginia, Lexington.

September 12, 2023

Meredith L. Yoder ( Trevor B. Reid ; Parker, Pollard, Wilton & Peaden, P.C., on briefs), Richmond, for appellants.

John B. Simpson (MartinWren, P.C., on brief), Charlottesville, for appellee.

Present: Judges Malveaux, Ortiz and Causey

OPINION BY JUDGE DORIS HENDERSON CAUSEY

This appeal involves an express easement to benefit land, the dominant estate, owned by James Wenzel Forbes and Desirea Smolka Forbes ("the Forbeses"), burdening the land, the servient estate, of Jason W. Cantwell ("Cantwell"). After a trial to interpret the terms of the easement and to clarify, via declaratory judgment, the parties’ rights under the easement, the Forbeses challenge several of the circuit court's rulings. Cantwell assigns cross-error to one of the circuit court's rulings. For the following reasons, we reverse and remand in part and affirm in part.

BACKGROUND ¹

Francis and Donna Cantwell owned land on Stoneview Circle in Lexington, Virginia. In 2005, they split their land into two portions—Lots 6 and 7. Francis and Donna Cantwell sold Lot 7 to Greg Higgins. The deed conveying Lot 7 to Higgins ("Higgins deed") contained the following easement, for the benefit of Lot 6, owned by Francis and Donna Cantwell:

The Grantors do hereby RESERVE unto themselves, their heirs and successors in title, a 40[-]foot easement along the westerly boundary of Lot 7, for the purpose or [sic] providing ingress and egress over existing driveway, fencing and landscape buffer for the benefit of Lot 6; said easement being shown on the aforesaid plat.

No plat attached to the deed shows the easement. Lot 7 was foreclosed upon and bought by Cantwell, the son of Francis and Donna Cantwell. Lot 6 was then foreclosed upon and bought by the Huntsmans. The Huntsmans sold Lot 6 to the Forbeses, the current owners of Lot 6. Cantwell remains the current owner of Lot 7. The Forbeses and Cantwell do not contest that both Lot 6 and Lot 7 are subject to the easement in the Higgins deed. Cantwell owns the servient estate. The Forbeses own the dominant estate.

Lots 6 and 7 are bound on their southern sides by Stoneview Circle, a public street. The easement is located on the western side of Lot 7, where Lots 6 and 7 border each other. If one stands on Stoneview Circle facing Lots 6 and 7, Lot 6 would be on the left, Lot 7 on the right, and the easement between the two lots, on Lot 7. Although the Forbeses and Cantwell disagree over the scope of the easement, they agree that the ingress/egress easement provides an "existing driveway" from Lot 6 to Stoneview Circle.

The circuit court consolidated several claims between the Huntsmans ² and Cantwell and the Forbeses and Cantwell and held a trial to determine the scope of the easement, interpret the express easement, and resolve the parties’ claims. The Forbeses requested a declaratory judgment clarifying the parties’ rights under the easement. They also requested injunctive relief directing Cantwell to remove fencing and gates within the easement area, prohibiting him from installing "any gates, fences, landscaping or plantings" and interfering with any such structures installed by the Forbeses. Although the Forbeses argued that the easement language was unambiguous, the circuit court ruled that the easement was ambiguous and permitted the introduction of parol evidence. This parol evidence included testimony from Francis Cantwell, the original drafter of the easement, about the intent and meaning of the fencing and landscape easement:

[W]hat was important to us was that the buffer, that we maintain the privacy, because God forbid the Higgins decided to go into the logging business or just clear-cut the place, we would end up staring at this house, which it now was, and staring at neighbors. We would lose all of our privacy. And there was a little fence in there that we had had. It was a piece of two rails split, an[ ] old split-rail fence and had a couple of rosebushes on it. So I said, well, let's protect the existing fence, the existing landscape buffer, let's leave it there.

After hearing all the evidence, the court made the following rulings in its final order, relevant to this appeal:

1. That the easement for ingress and egress for Lot 6 ... is located and configured as shown in the Plat attached hereto [the circuit court's order] as Exhibit "A" ... [and] is hereby incorporated by reference.

2. That the landscape component[s] of the easement ... extends forty feet (40’) from the western boundary of Lot 7, as otherwise shown on [the attached Plat] and constitutes a negative easement which prevents the owner of Lot 7 from interfering with what was the then-existing landscape buffer, and Cantwell is hereby enjoined from such interference, but such Landscaping Easement does not give the owner of Lot 6 control of or the right to make any changes to any part of Lot 7 outside the Ingress/Egress Easement ... and the Forbeses are so enjoined.

3. That the fencing component of the easement created by the [Higgins] deed ... extends forty feet (40’) from the western boundary of Lot 7, as otherwise shown on [the attached Plat] and constitutes a negative easement which prevents the owner of Lot 7 from interfering with what was the then-existing fencing, and Cantwell is hereby enjoined from such interference, but such Fencing Easement does not give the owner of Lot 6 control of or the right to make any changes to any part of Lot 7 outside the Ingress/Egress Easement ... and the Forbeses are so enjoined.

4. The claims of Cantwell seeking damages against [the] Huntsman[s] for, trespass, waste and/or nuisance with respect to the actions taken by the Huntsmans to regrade, gravel or otherwise improve the gravel driveway within the Ingress/Egress Easement are denied with prejudice. ³

5. That the removal of trees and expansion of the driveway ... outside of the Ingress/Egress Easement, constituted a trespass which was extensive and ongoing after they were given notice for which the Court awards Cantwell judgment for nominal damages in the amount of $5,000.00 against the Huntsmans.

6. That Cantwell is entitled to fence Lot 7 by erecting fencing within the boundaries of Lot 7, but he is not permitted to install gates at the entry of the Ingress/Egress Easement at Stoneview Circle or where the Ingress/Egress Easement is adjacent to the ... garage on Lot 6. Cantwell is hereby ordered to remove such gates, if any, at either location. ⁴

This appeal follows.

ANALYSIS

On appeal, the Forbeses argue that the circuit court erred in: determining that the easement language was ambiguous and admitting parol evidence, interpreting the deed to find that the ingress/egress easement was less than 40 feet wide, finding that the fencing easement constituted a negative easement, finding that the landscape easement constituted a negative easement, "failing to enjoin ... Cantwell from maintaining and erecting fencing within the forty-foot easement area," making its factual determinations about the size of the existing driveway, and making rulings that, when taken together, "render[ed] the [ingress/egress] easement impassable by common motor vehicles." ⁵ On cross-error, Cantwell argues only that the circuit court erred in enjoining him from maintaining gates "along fencing on his own land at the entry of the access easement or where the access easement is adjacent to the 24-foot-wide garage on Appellants’ property."

I. Admission of Parol Evidence

a. Standard of Review

"In resolving a dispute between landowners regarding the terms of an easement that is granted or reserved expressly by deed, we apply the customary rules governing the construction of written documents." Anderson v. Delore , 278 Va. 251, 257, 683 S.E.2d 307 (2009). "We review de novo a circuit court's interpretation of words in a deed." Marble Techs., Inc. v. Mallon , 290 Va. 27, 33, 773 S.E.2d 155 (2015). "If the language in a deed creating an easement is unambiguous, courts should interpret the deed solely based on the deed's language." Id. " ‘Only when the language is ambiguous may a court look to parol evidence, or specifically, to the language employed in light of the circumstances surrounding the parties and the land at the time the deed was executed’ in order to discern the parties’ intent." Id. (quoting Pyramid Dev., L.L.C. v. D & J Assocs. , 262 Va. 750, 754, 553 S.E.2d 725 (2001) ). When "the deed language does not state the object or purpose of the easement, the determination of the easement's scope ‘is made by reference to the intention of the parties to the grant,’ ascertained from the circumstances pertaining to the parties and the land at the time of the grant." Anderson , 278 Va. at 257, 683 S.E.2d 307 (quoting Waskey v. Lewis , 224 Va. 206, 211, 294 S.E.2d 879 (1982) ). "[N]o use may be made of the easement which is different from that established at the time of its creation and which imposes an additional burden upon the servient estate." Hayes v. Aquia Marina, Inc. , 243 Va. 255, 258-59, 414 S.E.2d 820 (1992). Instruments "creat[ing] an easement must be strictly construed, with any doubt being resolved against the establishment of the easement." Burdette v. Brush Mountain Ests., LLC , 278 Va. 286, 297, 682 S.E.2d 549 (2009) (quoting Chesapeake & Potomac Tel. Co. of Va. v. Properties One, Inc. , 247 Va. 136, 139, 439 S.E.2d 369 (1994) ).

b. The circuit court erred in admitting parol evidence to describe the size of the easement.

The Forbeses argue that the plain language of the deed provides an ingress/egress easement of 40 feet from the westerly boundary of Lot 7. We agree. The parties agree on appeal that the deed language provides an easement that is 40 feet wide. ⁶ And the deed is unambiguous regarding the size of the easement. It states that the size of the easement is 40 feet: "[t]here is...