Burdette v. Brush Mountain Estates, LLC

• Decision Date: 18 September 2009
• Docket Number: Record No. 082079.
• Parties: Kelly BURDETTE v. BRUSH MOUNTAIN ESTATES, LLC.
• Court: Virginia Supreme Court

682 S.E.2d 549

278 Va. 286

Kelly BURDETTE v. BRUSH MOUNTAIN ESTATES, LLC.

Record No. 082079.

Supreme Court of Virginia.

September 18, 2009.

Frank K. Friedman (Kendall O. Clay; Woods Rogers, on briefs), Roanoke, for appellant.

Edwin C. Stone (Stone & Kellerman, on brief), Christiansburg, for appellee.

Present: All the Justices.

OPINION BY Justice CYNTHIA D. KINSER.

In this appeal, we consider two questions: (1) whether the provisions of Code § 55-2, requiring that estates in lands be conveyed by a deed or will, apply to the conveyance of an easement; and (2) whether the circuit court erred in determining that two certain parcels of real property are encumbered with a 50-foot easement for ingress, egress, and public utilities. Although we conclude that Code § 55-2 is inapplicable to the conveyance of easements because an easement is not an estate, we will reverse the judgment of the circuit court. The deeds at issue, along with a plat incorporated therein for descriptive purposes, do not contain operative words manifesting an intention to grant an easement.

RELEVANT FACTS AND PROCEEDINGS

The appellant, Kelly Burdette, owns 8.281 acres of land, consisting of Parcel "A" and Parcel "B," located in Montgomery County. Burdette acquired the real property from Thomas E. Davis and Margaret V. Davis by deed dated December 8, 1999 (Davis/Burdette deed). The appellee, Brush Mountain Estates, LLC, owns an adjacent parcel of real property located on the east side of Burdette's property, identified as Tax Parcel 27(A)40.

The Davis/Burdette deed contained the following pertinent language:

That for and in consideration of the sum of Ten Dollars ($10.00), and other good and valuable consideration, all cash in hand paid by the Grantee to the Grantors, the receipt of which is hereby acknowledged, the said Grantors do hereby bargain, grant, sell and convey [to the] Grantee, all that certain lot or parcel of land, lying and being in ... Montgomery County, Virginia, containing 8.281 acres, consisting of and being Parcel "A", containing 6.487 acres and Parcel "B", containing 1.794 acres, as shown on a plat of survey entitled "PLAT OF SURVEY OF BOUNDARY LINE ADJUSTMENT FOR THOMAS E. DAVIS & MARGARET DAVIS", ... designated Document No. 17214-02, which plat of survey is of record in the Clerk's Office of the Circuit Court of Montgomery County, Virginia, in Plat Book 19, Page 223.

The deed also stated that the conveyance was "made subject to all easements, reservations, restrictions and conditions of record affecting the hereinabove described property."

The boundary line adjustment plat (the Plat) referenced in the Davis/Burdette deed was prepared and recorded in conjunction with a September 2, 1999 deed from Gordon M. Roberts, II and Mary Alice Roberts, and the Harvey Family Partnership # 1 to the Davises (Roberts/Davis deed). In that deed, the Davises acquired Parcel "B." They already owned Parcel "A." The Roberts/Davis deed contained substantially the same language as that set forth in the subsequent Davis/Burdette deed, including the statement that the conveyance was "made subject to all easements, restrictions and conditions of record affecting the hereinabove described property."

Brush Mountain, as a party of the third part, executed the Roberts/Davis deed in order to effect a release of its option to purchase Parcel "B." The stated consideration for the release was "One ($1.00) Dollar, cash in hand paid, and other good and valuable consideration."

The Plat referenced in both deeds depicts a 50-foot easement that traverses the southern portion of Parcel "A" and Parcel "B" and contains two separate notations stating, "SEE NOTE # 6." Note # 6 on the Plat contains the following language: "50' PRIVATE EASEMENT FOR INGRESS, EGRESS AND PUBLIC UTILITY FOR THE BENEFIT OF TAX PARCEL 27(A)40 [Brush Mountain's real property], IS HEREBY CONVEYED." The Plat was signed before notaries public by the Robertses, the Harvey Family Partnership # 1, Brush Mountain, and the Davises.

Brush Mountain submitted a request to rezone its Tax Parcel 27(A)40, indicating its intent to develop the property and access it via the easement shown on the Plat. Burdette apparently learned of Brush Mountain's intent and filed a complaint for declaratory judgment against Brush Mountain in the circuit court. Burdette contested Brush Mountain's claim of an easement over her property, alleging "there is no easement established by any of the methods recognized in law and that there is no deed or will granting [such] rights to [Brush Mountain]." In response, Brush Mountain filed an answer and counter-complaint for declaratory judgment, asking the circuit court to declare that Brush Mountain is "entitled to unrestricted use" of the easement as shown on the Plat.

Brush Mountain then moved for summary judgment. After considering the parties' letter memoranda, the circuit court granted summary judgment in favor of Brush Mountain, holding that "a 50-foot private easement for ingress, egress and public utility" exists for the benefit of Tax Parcel 27(A)40, owned by Brush Mountain, over the real property owned by Burdette and ordering Burdette not to interfere with Brush Mountain's use of the easement as shown on the Plat. In a letter opinion incorporated in the final order, the circuit court framed the question before it as whether the notes on the Plat were sufficient to create an easement for the benefit of Brush Mountain. The court concluded

in this particular instance, an easement to Brush Mountain Estates, LLC exists as a result of the [P]lat referenced herein. It is clear from the documents presented that Thomas E. Davis and Margaret V. Davis granted, pursuant to this [P]lat, a 50-foot easement to benefit Brush Mountain Estates, LLC. Kelly Burdette then obtained the property from the Davis[es] with at least constructive knowledge that this easement existed.

....

These deeds all conveyed property that was subject to existing easements. Clearly, the public record shows that an easement did, in fact, exist for Brush Mountain Estates, LLC. By incorporating the [P]lat into [their deed, the Davises] accepted all notations that were made on that [P]lat and all easements and whatever encumbrances on [their] property it may have shown.

Burdette now appeals from the circuit court's judgment.

ANALYSIS

Relying on Code § 55-2, Burdette argues that any interest in land, including an easement can be conveyed only by a deed or will and that Code § 55-48 provides the proper form for a deed. Burdette further contends there is no deed conveying the easement at issue to either Brush Mountain or its predecessors in title and that the Plat, being neither a deed nor a will, did not convey the easement. According to Burdette, the circuit court properly framed the issue as whether the notes on the Plat were sufficient to create an easement but then erroneously concluded that the Davises granted, pursuant to the Plat, a 50-foot easement to Brush Mountain despite the absence of any language of conveyance in either the Roberts/Davis deed or the Davis/Burdette deed.

Brush Mountain, however, asserts that the provisions of Code § 55-2 are not applicable and the existence of a deed complying with the requirements of Code § 55-48 is not essential to the conveyance of an easement. Brush Mountain further argues that, even assuming Code § 55-2 does require an easement to be conveyed by a deed in the prescribed form, the Roberts/Davis deed and the Davis/Burdette deed suffice. According to Brush Mountain, both deeds refer to and incorporate the Plat and both contain language stating that the particular conveyance was subject to easements of record affecting the described property.

In relevant part, Code § 55-2 provides: "No estate of inheritance or freehold or for a term of more than five years in lands shall be conveyed unless by deed or will."¹ The provisions of Code § 55-2, by their plain terms, apply only to estates. Although this Court has never specifically addressed whether an easement is an estate, we have held that "[e]asements are not ownership interests in the servient tract but `the privilege to use the land of another in a particular manner and for a particular purpose.'" Russakoff v. Scruggs, 241 Va. 135, 138, 400 S.E.2d 529, 531 (1991) (quoting Brown v. Haley, 233 Va. 210, 216, 355 S.E.2d 563, 567-68 (1987)); see also Clayborn v. Camilla Red Ash Coal Co., 128 Va. 383, 392, 105 S.E. 117, 120 (1920) (referring to an easement as an incorporeal hereditament); Restatement of Property § 467 cmt. c ("An estate differs from an easement in that an estate is an interest in land which is or may become possessory while an easement is never a possessory interest.").

If an easement is not an ownership interest in land, it is axiomatic that an easement is not an estate. This conclusion is consistent with authorities from numerous jurisdictions. See, e.g., City and County of San Francisco v. Calderwood, 31 Cal. 585, 589 (1867) ("The public took nothing but an easement, and that term excludes the idea of an estate in the land on which the servitude was imposed."); Posick v. Mark IV Constr. Co., 952 A.2d 1271, 1274 (Conn.App.Ct.2008) ("An easement is not an estate in land, but is merely an interest in land in the possession of another."); Sears, Roebuck & Co. v. Franchise Fin. Corp. of Am., 711 So.2d 1189, 1191 (Fla.Dist.Ct.App.1998) ("An easement is an incorporeal, nonpossessory interest in land which concerns the use of the land of another. An easement is not an estate in land and does not convey title to land or dispossess the owner of the land subject to the easement. Instead, an easement only grants the right to use the property for some particular purpose or purposes."); Sun Valley Land & Minerals, Inc. v. Hawkes, 138 Idaho 543, 66 P.3d 798, 802 (2003) ("An easement is not an estate in land, but is merely an interest in land in the possession of another."); Farnes v. Lane, 281 Minn....