Hudson v. Pillow

• Decision Date: 02 March 2001
• Docket Number: Record No. 000835.
• Citation: 541 S.E.2d 556,261 Va. 296
• Parties: Roy HUDSON, et al. v. Ruth M. PILLOW, et al.
• Court: Virginia Supreme Court

541 S.E.2d 556

261 Va. 296

Roy HUDSON, et al. v. Ruth M. PILLOW, et al.

Record No. 000835.

Supreme Court of Virginia.

March 2, 2001.

Anthony F. Troy (James D. Thornton, Richmond; Philip B. Baker, Lynchburg; Mays & Valentine, Richmond; Sanzone & Baker, on briefs), for appellants.

A. David Hawkins (Overbey, Hawkins & Selz, on brief), Rustberg, for appellees.

Present CARRICO, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ.

KINSER, Justice.

This appeal involves the question whether an old road known as the "Free Hollow Road" has been abandoned. That road ran through a farm known as "Rose Hill" and allegedly provided a means of ingress to and egress from a tract of land known as "Free Hollow." Because we find sufficient evidence to support the circuit court's judgment that the Free Hollow Road has been abandoned, we will affirm that judgment.

MATERIAL PROCEEDINGS

By deed dated November 25, 1865, and recorded in Amherst County, the Free Hollow tract of land, containing approximately 213 acres, was conveyed to 17 individuals pursuant to the terms of the will of Robert Tinsley. A portion of that tract is now owned by the appellants, Roy Hudson, Danny Melvin Carwile, and S. Vance Wilkins, Jr., (hereinafter referred to as "the plaintiffs").¹ The Free Hollow tract adjoins the Rose Hill farm. The appellees, Ruth Myra Richeson Pillow, and her husband, John L. Pillow; and Nell Richeson Cordick and her husband, Leonard Eugene Cordick (hereinafter referred to as "the defendants"), are the owners of the Rose Hill farm (also referred to as "the Richeson property").²

The plaintiffs filed a "Bill of Complaint and Motion for Injunctive Relief," requesting that a right of way be recognized across the defendants' property and an injunction be issued to allow ingress to and egress from the plaintiffs' property. After hearing evidence and viewing the property, the chancellor issued a letter opinion.³ The chancellor found that no one has lived in Free Hollow since the 1960's and that the Free Hollow Road is overgrown with heavy brush and large trees, "accessible only by a determined pedestrian." The chancellor also found that Ramey Richeson, who formerly owned an interest in Rose Hill,⁴ maintained control over the road, and locked the gates across it to prevent ingress and egress.

In a final decree incorporating the letter opinion, the chancellor made the following findings:

The plaintiffs sustained their burden of proving a prescriptive easement over the old "Free Hollow Road" from Free Hollow to the location of present day State Route 714 near its intersection with State Route 615. However, clear and unequivocal evidence indicates non-use of the easement coupled with acts which indicate an intention to abandon or which evidence adverse use by the owners of the servient estate (Rose Hill) acquiesced in by owners of the dominant estate (Free Hollow) constituting abandonment of said old "Free Hollow Road."

Accordingly, the chancellor concluded that no easement presently exists from the Free Hollow tract across the Rose Hill farm and dismissed the bill of complaint. We awarded the plaintiffs this appeal.

FACTS

The dispositive issue on appeal concerns the chancellor's finding that the easement across the Rose Hill farm has been abandoned. Thus, we will summarize the facts relevant to that issue, and in doing so, will present those facts, and all inferences fairly deducible from them, in the light most favorable to the defendants, the prevailing parties on that issue. Prospect Dev. Co. v. Bershader, 258 Va. 75, 80, 515 S.E.2d 291, 294 (1999).

Since the early 1960's, no one has resided on the Free Hollow property. According to Hugh A. Richeson, anyone who has traveled across the Richeson property to access the Free Hollow property since then has done so only after first getting permission from some member of his family.⁵ Hugh's niece, Ruth Richeson Pillow, likewise stated that, in her lifetime, no one has used the old road across the Rose Hill farm to access Free Hollow without getting permission from her father, W.H. Richeson, Jr., or her uncle, Ramey Richeson. Hugh further testified that, after his father died in 1962, his younger brother, Ramey, took over the farm and, sometime in the late 1960's, locked all the gates at the entrances to the Rose Hill farm. Hugh's sister, Sarah Richeson Gordon, also testified that the gates on the Rose Hill farm were locked after her father's death in 1962. Similarly, Ramey's daughter, Martha Richeson Preddy, stated that, during the years before she graduated from high school in 1966, the gates on the roads into Rose Hill from State Routes 615 and 714 were locked and that her father had the keys to the locks. She also remembered that the property was posted with "Ho hunting" and "no trespassing" signs.⁶ In fact, she and other members of the Richeson family testified that they had never heard of the term "Free Hollow Road" until this litigation commenced. Calvin Bailey, who owns a parcel in Free Hollow, also had not heard the name "Free Hollow Road." Bailey stated that he just knew about a farm road that ran through the Richeson property.

John L. Pillow, one of the defendants, testified that, when he and his wife purchased the Rose Hill farm in 1989, there were locks on the gates and that he has kept the gates locked continuously since then. He also stated that large trees, probably 25 to 50 years old, were located in the old roadbed and that, while some portions of the road were passable, other parts contained creeks and a beaver swamp.

Several witnesses testifying for the plaintiffs remembered using the road across the Rose Hill farm about 50 years ago for the purpose of cutting timber on the Free Hollow property. More recently, Chris Alfred Rose cut timber in Free Hollow for about three months in 1988. Rose stated that, during that time, he never saw any locks on the gates that were located on the road running through the Rose Hill farm to Free Hollow. Roy Hudson also testified that, when he first went onto the Free Hollow property around 1965, he did not see any locks on the gates leading into the Free Hollow Road. In fact, Hudson stated that he had not seen locks on the gates until he purchased a portion of the Free Hollow property in 1995.

S. Vance Wilkins, Jr., one of the plaintiffs, first purchased a tract of land in Free Hollow in 1966. Wilkins testified that, when he told Ramey Richeson about the purchase, Ramey volunteered to show Wilkins where the right of way across the Richeson property was located. According to Wilkins, Ramey drove him along the road and while doing so stated, "Here is where the right of way is. The old right of way used to be over here. This is what we use now. This is what you use." Wilkins denied getting permission from Ramey to use the road across the Rose Hill farm to access his property in Free Hollow and stated that, when he went hunting on his property between approximately 1966 and 1986, the gate through which he entered the Free Hollow Road was not locked.

However, another witness, William Boyd Sale, testified that he asked Ramey for permission to travel across the Rose Hill farm when Sale was cutting timber in Free Hollow around 1987. Likewise, Harry B. Stinnett, Jr., confirmed that Ramey kept the gates locked and controlled access to the road across the Richeson property to Free Hollow.

ANALYSIS

Before addressing the merits of the issue before us, we must consider the defendants' motion to dismiss this appeal. That motion is premised on the fact that the plaintiffs changed the wording of their assignments of error.⁷ Because the original assignment of error number 2 and assignment of error number 1 on brief both raise the question whether there was sufficient evidence to support the chancellor's finding that the prescriptive easement over Free Hollow Road has been abandoned, we will deny the motion to dismiss as to that issue. Unlike the situation in Hamilton Dev. Co. v. Broad Rock Club, Inc., 248 Va. 40, 44, 445 S.E.2d 140, 143 (1994), the modification of this assignment of error has not enabled the plaintiffs to argue either a different question on appeal or an issue not presented to the chancellor. However, assignment of error number 2 on brief is entirely different than the original assignment of error number 4. Consequently, we will not consider that assignment of error.⁸See id.

We now turn to the dispositive issue before us, whether there was sufficient evidence to support the chancellor's finding that the prescriptive easement over the Free Hollow Road has been abandoned. In addressing that issue, we are guided by the following principles of appellate review. The chancellor's decision, reached after hearing evidence ore tenus and resolving conflicts in that evidence, carries the same weight as a jury's verdict, and the chancellor's findings of fact will not be disturbed on appeal unless they are plainly wrong or without evidence to support them. Code § 8.01-680; Rash v. Hilb, Rogal & Hamilton Co., 251 Va. 281, 283, 467 S.E.2d 791, 793 (1996); Cushman Virginia Corp. v. Barnes, 204 Va. 245, 254, 129 S.E.2d 633, 640 (1963); Rogers v. Runyon, 201 Va. 814, 816, 113 S.E.2d 679, 680 (1960).

The party claiming abandonment of an easement, in this case the defendants, has the burden to establish such abandonment by "clear and unequivocal evidence." Robertson v. Robertson, 214 Va. 76, 82, 197 S.E.2d 183, 188 (1973) (citing Lindsey v. Clark, 193 Va. 522, 525, 69 S.E.2d 342, 344 (1952)). "Nonuse of an easement coupled with acts which evidence an intent to abandon or which evidence adverse use by the owner of the servient estate, acquiesced in by the owner of the dominant estate, constitutes abandonment."⁹ Robertson, 214 Va. at 81, 197 S.E.2d at 188; accord Pizzarelle v. Dempsey, 259 Va. 521, 528, 526 S.E.2d 260, 264 (2000)

. If the party asserting abandonment relies upon nonuse of the easement coupled with an adverse use by the owner...