Brown v. Haley

• Decision Date: 24 April 1987
• Docket Number: No. 840346,840346
• Citation: 233 Va. 210,355 S.E.2d 563
• Parties: Rufus R. BROWN v. Dayton A. HALEY, et al. Record
• Court: Virginia Supreme Court

Page 563

355 S.E.2d 563

233 Va. 210

Rufus R. BROWN v. Dayton A. HALEY, et al.

Record No. 840346.

Supreme Court of Virginia.

April 24, 1987.

David A. Melesco (B. James Jefferson, Welch & Jefferson, Rocky Mount, on brief), for appellant.

John S. Edwards (Martin, Hopkins, Lemon & Carter, P.C., Roanoke, on brief), for appellees.

Present: CARRICO, C.J., and COCHRAN, ^* POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ.

COCHRAN, Justice.

This appeal raises questions concerning res judicata and an implied easement to cross a certain strip of land for ingress and egress to and from Smith Mountain Lake.

By deed dated September 6, 1961, Rufus R. Brown and Sallie W. Brown conveyed to Appalachian Power Company (Apco) the right to overflow and affect with water that portion of a tract of 321.75 acres to the 800-foot elevation and to enter below the 800-foot contour and clear the land for the impoundment of water. The deed reserved to the Browns the right to use the land below the 800-foot contour, as follows:

Grantors shall have the right to possess and use said premises in any manner not inconsistent with the estate, rights and privileges herein granted to Appalachian, including (a) the right to cross said land to reach the impounded waters for recreational purposes and for obtaining their domestic water supply and water for their livestock and (b) the right to extend and maintain necessary fences across said land and into the impounded waters for a sufficient distance to prevent livestock from wading around said fences.

Moreover, the deed provided that the covenants and agreements contained therein "shall be covenants attaching to and running with said premises."

By deed dated October 19, 1964, the Browns conveyed to Dayton A. Haley and Lucy S. Haley a portion of the remaining land described by metes and bounds and containing 17.26 acres, together with an easement of right-of-way over other lands of the Browns for ingress and egress. This tract, as described, extended to the 800-foot elevation contour of Apco, the level to which it was expected the waters of Smith Mountain Lake, when filled, would extend.

The Haleys built a beach, piers, a campsite, and a trailer park for recreational use of the waters of Smith Mountain Lake. After being filled, however, the lake rose to a water level that generally remains within the 790-foot and 795-foot contours. As a consequence, the Haleys' tract, adjoining the 800-foot contour, is usually separated from the lake waters by a strip of land that varies in width, depending on the terrain and the volume of the water collected in the lake.

In 1978, the Browns brought an action at law against the Haleys for ejectment and damages. The trial court sat without a jury and the evidence was not transcribed. By final order entered July 23, 1979, the court found in favor of the Browns, ruling that they were entitled to recover "sole possession" of "all the land below the 800 foot contour as the [Haleys'] land borders upon Smith Mountain Lake," but denied the Browns' claim for damages.

In 1982, the Haleys and others ¹ filed an amended motion for declaratory judgment and bill of complaint against Apco and against Rufus R. Brown, who, upon the death of Sallie W. Brown, had become vested with sole fee simple title to their land. Plaintiffs asked the court to declare that they had an easement to cross Brown's land below the 800-foot contour to reach the lake waters, to reform the 1964 deed from the Browns to the Haleys, to declare that the plaintiffs had riparian rights in the lake, and to enjoin Brown from further action or threats to impede their access to the lake.

The court sustained a demurrer of Apco to the easement claim and motions to dismiss the remaining claims with respect to Apco; no error was assigned to these rulings. Brown filed an answer in which he denied that plaintiffs were entitled to the relief sought and asserted that under the doctrine of res judicata the adjudication in the prior ejectment action barred the present litigation. Plaintiffs' claims against Brown proceeded to trial before a judge other than the one who had presided in the ejectment action.

By letter opinion of August 10, 1983, the trial court stated that, although the final order entered in the earlier action was ambiguous, the ejectment action decided only the fee simple ownership of the land below the 800-foot contour and established the boundary line between the Brown and Haley properties. Finding that the easement issue was not identical to the title issue previously resolved, the court was of opinion that the present proceeding was not barred by res judicata.

The court found that, at the time the Haleys purchased the tract from the Browns, the parties believed the lake waters would extend to the 800-foot contour, so that the Haleys thought that their land extended to the water's edge. In its letter opinion the court stated that it was "implied, if not express[ly] agreed to by the parties," that plaintiffs had a reasonable expectation of reaching the lake water. Because plaintiffs had made substantial improvements based on their belief that they could cross the strip of land in question, the court stated that to deny them the right to cross it "would not only be inequitable but also unconscionable." Accordingly, the court was of opinion that plaintiffs were entitled to an implied easement across the strip of land. After further argument by counsel upon Brown's motion for reconsideration, the court reaffirmed the opinions set forth in its letter of August 10, 1983.

By final order and decree entered December 7, 1983, the court overruled Brown's plea of res judicata and ruled that Dayton A. Haley and Lucy S. Haley, their heirs and assigns, have an implied easement to enter upon and cross Brown's land lying between the 800-foot contour line bordering the Haleys' property and the waters of Smith Mountain Lake as the waters rise and fall. The court also permanently enjoined Brown from taking or threatening any action to prevent the Haleys from exercising their right to enter and cross the strip of land.

In this appeal, Brown ² reiterates his argument that res judicata bars the maintenance of this suit because of the prior ejectment action involving the parties or their privies. ³ Because his motion for judgment in the prior action alleged that the Haleys had "no interest" in the land below the 800-foot elevation contour, he contends that the existence of an easement over the disputed portion of the property was in issue and was decided adversely to the Haleys. Citing Bates v. Devers, 214 Va. 667, 202 S.E.2d 917 (1974), he asserts that res judicata bars relitigation of any part of the same cause of action which was or could have been previously litigated and therefore precludes further litigation of the easement issue. ⁴ We do not agree.

As Brown has noted, we said in Bates that a judgment in favor of a party "bars relitigation of the same cause of action, or any part thereof which could have been litigated, between the same parties and their privies." 214 Va. at 670-71, 202 S.E.2d at 920-21 (emphasis in original). But we explicated this language in a footnote:

The barring of a cause of action "which could have been litigated" is not directed to an unrelated claim which might permissibly have been joined, but, to a claim which, if tried separately, would constitute claim-splitting.

Id. at 670-71 n. 4, 202 S.E.2d at 920-21 n. 4 (citations omitted). The test to determine whether claims are part of a single cause of action is whether the same evidence is necessary to prove each claim. See Bates, 214 Va. at 672, 202 S.E.2d at 922; Cohen v. Power, 183 Va. 258, 261, 32 S.E.2d 64, 65 (1944); Jones v. Morris Plan Bank, 168 Va. 284, 290-91, 191 S.E. 608, 609-10 (1937). Cf. Wright v. Castles, 232 Va. 218, 223-24, 349 S.E.2d 125, 128-29 (1986); Feldman v. Rucker, 201 Va. 11, 18, 109 S.E.2d 379, 384 (1959).

Ejectment is an action at law to determine title and right of possession of real property. See Providence v. United Va./Seaboard Nat., 219 Va. 735, 744, 251 S.E.2d 474, 479 (1979); Benoit v. Baxter, 196 Va. 360, 365, 83 S.E.2d 442, 445 (1954). It may be maintained by one who has an interest in and a right to recover possession of the premises, or a share, interest, or portion thereof. Code § 8.01-137. A verdict for the plaintiff must specify the share or interest of the plaintiff, whether in the whole or a part of the premises claimed, and the estate of the plaintiff, whether in fee, for life, or for a term of years. Code §§ 8.01-152, -153. The action is concerned only with the ownership rights of the plaintiff, and the proof necessary to support the action consists of the documents which vest title in the owner and any other evidence related to the issue of title.

An easement, on the other hand, is a privilege to use the land of another in a particular manner and for a particular purpose. It creates a burden on the servient tract and requires that the owner of that land refrain from interfering with the privilege conferred for the benefit of the dominant tract. Bunn v. Offutt, 216 Va. 681, 684, 222 S.E.2d 522, 525 (1976); Tardy v. Creasy, 81 Va. 553, 556 (1886). The privilege enjoyed under an easement is not inconsistent with "a general property" in the owner of the servient tract. Bunn, 216 Va. at 684, 222 S.E.2d at 525. Establishment and protection of an easement by injunction are equitable remedies. See Mobley v. Saponi, 215 Va. 643, 645, 212 S.E.2d 287, 289 (1975); e.g., Robertson v. Robertson, 214 Va. 76, 197 S.E.2d 183 (1973); Cushman Corporation v. Barnes, 204 Va. 245, 129 S.E.2d 633 (1963); Williams v. Green, 111 Va. 205, 68 S.E. 253 (1910). The proof necessary to justify equitable relief includes evidence of the facts that give rise to the easement, whether by express grant or reservation, by implication, or by other means.

The existence of an easement is not relevant to the issue...