Lee v. Zom Clarendon, L.P., Civil Action No. 1:09cv402.

• Decision Date: 22 October 2009
• Docket Number: Civil Action No. 1:09cv402.
• Citation: 665 F.Supp.2d 603
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Sun Yung LEE, Plaintiff, v. ZOM CLARENDON, L.P., Defendant.

665 F.Supp.2d 603

Sun Yung LEE, Plaintiff, v. ZOM CLARENDON, L.P., Defendant.

Civil Action No. 1:09cv402.

United States District Court, E.D. Virginia, Alexandria Division.

October 22, 2009.

Order on Motion to Alter Judgment November 20, 2009.

COPYRIGHT MATERIAL OMITTED

Mark D. Cummings, Sher Cummings & Ellis, Arlington, VA, for Plaintiff.

Eugene Andrew Burcher, John Edward Rinaldi, Walsh Colucci Lubeley Emrich & Walsh PC, Prince William, VA, Gordon Evan Pritchard, Walsh Colucci Lubeley Emrich & Walsh PC, Arlington, VA, for Defendant.

MEMORANDUM OPINION

T. S. ELLIS, III, District Judge.

At issue on cross-motions for summary judgment in this diversity dispute is the existence of an easement. More specifically, plaintiff, the proponent of the disputed easement, argues for the existence of the easement by relying on three alternative theories: (1) an express easement; (2) an easement by implication; or (3) an easement by prescription. Defendant counters that all three theories fail either as a matter of law or on the undisputed record facts. Defendant also argues, as an affirmative defense, that plaintiff abandoned the easement.

I.¹

Plaintiff, a Virginia citizen and the owner of the putative dominant estate, owns two distinct but adjoining parcels in Arlington Virginia. The first parcel consists of Clarendon Subdivision lots 238-240 and portions of lots 217 and 241 in Arlington. More familiarly, this property is located at the intersection of N. Irving Street and Washington Boulevard at 3201 Washington Boulevard. The second parcel consists of portions of lots 217 and 241 of the Clarendon Subdivision, and bears the address 1122 N. Irving Street. This second parcel is described by the parties as the "Reamy property" or "Reamy house." Plaintiffs family purchased these parcels in 1963.

The sole defendant is ZOM Clarendon, L.P., a limited Delaware partnership authorized to do business in Virginia. Defendant owns the putative servient estate, which consists of Clarendon Subdivision lots 206-216, 242-247, and, importantly for the purposes of this case, those portions of lots 217 and 241 that do not include the Reamy property. Defendant purchased this property, which is immediately adjacent to plaintiffs property, in 2006, intending to build a mixed-use high rise with both residential units and retail space.

The parties' dispute focuses on plaintiffs claim that an easement exists bordering the Reamy property and traversing the portions of lots 217, 241, and 242 owned by defendant. As Figure 1 depicts, the easement forms a 14-foot-wide "L-shape," running from N. Irving Street alongside the northwest and southwest borders of the Reamy property.

In 2007, in the course of constructing its mixed-use project, defendant built a chain-link fence around its property, thereby obstructing plaintiffs use of the easement. Defendant further intends to construct a building that will also obstruct use of the putative easement. Accordingly, plaintiff seeks a declaratory judgment confirming the existence and validity of the easement, and enjoining development of the property in a manner that would bar her use of the easement.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The putative easement begins on N. Irving Street and runs along the northwest and southwest sides of the Reamy property, ending at the border separating lots 240 and 241. It is identified in Figure 1 by solid shading.

Plaintiffs property consists of lots 238, 239, and 240, and the Reamy property. These parcels are identified in Figure 1 by striped shading.

Defendant's property includes, among other parcels, portions of lots 217 and 241, and the entirety of lot 242. These parcels are not shaded in Figure 1.

Central to a determination of the easement's validity is an understanding of the ownership history of plaintiff's and defendant's Clarendon Subdivision parcels. In 1900, a large tract of land in Arlington, Virginia, was subdivided into approximately 300 lots, currently known as the Clarendon Subdivision. This subdivision includes the land located at the west corner of Washington Boulevard and N. Irving Street, as depicted in Figure 1. In 1924, Lulu Cameron Follansbee purchased lot 217 and lots 238-242. By deed recorded on July 7, 1926, Follansbee conveyed portions of lots 217 and 241 to Judson Reamy. This property, referred to by the parties as the Reamy property, is depicted in Figure 1. It is for the benefit of the Reamy property that plaintiff claims a valid easement by implication or prescription. Follansbee subsequently sold the remaining lots to purchasers not pertinent to this dispute, who in turn sold the lots to Dick Missakian in October 1927.

On July 10, 1928, Missakian recorded a deed of trust on lots 238-240, 242, and the portions of lots 217 and 241 that did not include the Reamy property. The purpose of this deed of trust was to secure a $32,500 loan made by Mary Hutchison to Missakian in the form of forty promissory notes. Specifically, the deed of trust named Claude H. Woodward and H. Glenn Phelps as trustees (the "Woodward trustees") and Hutchison as beneficiary. Missakian granted the property to the Woodward trustees "[t]ogether with all the improvements in anywise appertaining, and all the estate right, title, interest and claim, either at law or in equity, or otherwise however, the parties of the first part, of, in, to, or out of the said land and premises."² Importantly, the Woodward deed of trust only authorized the Woodward trustees (i) to release the land from the Woodward deed of trust upon satisfaction of the debt, or (ii) to sell the property in the event of default at public auction.

By deed dated July 14, 1928, and later recorded in January 1929, Missakian sold the parcels to Kristopher Dadaian subject to the Woodward deed of trust. Dadaian then conveyed the properties to B.M. Hedrick, who likewise purchased the properties subject to the Woodward deed of trust.

On March 1, 1932, the Woodward trustees and Hutchison executed a deed partially releasing Hedrick from the terms of the Woodward deed of trust. It is this document that plaintiff claims creates an express easement. In language central to this dispute, the deed of partial release reconveyed to Hedrick title to lot 242 and the portions of lots 217 and 241 that did not include the Reamy property,

subject however, to a right of way for ingress and egress purposes for the benefit of the owners of lots 238, 239, and 240 over the following portion of land hereby released and contiguous thereto said right of way being bounded and described as follows....³

(Emphasis added.) Lots 238-240 remained subject to the Woodward deed of trust. Although named a "party of the second part" in the deed of partial release, Hedrick did not sign the instrument; only the Woodward trustees and Hutchison signed this deed of partial release. Notably, Hutchison signed the document for the express purpose of evidencing her consent to the partial release.⁴

Following the execution of the partial release in 1932, the portions of lots 217, 241, and 242 owned by Hedrick were further subdivided and sold to various purchasers. Yet, in 1936, title to these same lots was united in Charles G. Schott. Defendant ultimately purchased this property in 2006.

Lots 238-240 remained subject to the Woodward deed of trust until May 1935, when Hedrick defaulted on the loan, prompting the Woodward trustees to foreclose and sell the lots at public auction. The property was ultimately purchased by Teck Construction Co. ("Teck") in 1943. Teck also purchased the Reamy property in 1958, thereby merging title to the Reamy property and lots 238-240 in a single owner. Teck subsequently sold these lots to plaintiff's family in 1963.

In March 2009, plaintiff brought suit in Virginia state court. Defendant subsequently removed the case to federal court, where, following jurisdictional discovery, it was ultimately determined that there was proper diversity jurisdiction under 28 U.S.C. § 1332. See Lee v. ZOM Clarendon, L.P., 1:09cv402 (E.D.Va. June 26, 2009) (Order); Lee v. ZOM Clarendon, L.P., 1:09cv402 (E.D.Va. May 22, 2009) (Order).⁵ The parties subsequently filed their respective Motions for Summary Judgment and a hearing was held on October 9, 2009, at which time the parties appeared by counsel and fully argued the disputed issues. Accordingly, the matter is now ripe for disposition.

II.

An easement, simply put, 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." Brown v. Haley, 233 Va. 210, 355 S.E.2d 563, 567-68 (1987); see also 6B Michie's Jurisprudence, Easements § 2. Significantly, the owner of the dominant tract does not hold an ownership interest in the servient tract. Russakoff v. Scruggs, 241 Va. 135, 400 S.E.2d 529, 531 (1991). Generally, the Supreme Court of Virginia has described an easement as being "`a privilege without profit.'" Bunn v. Offutt, 216 Va. 681, 222 S.E.2d 522, 525 (1976) (quoting Stevenson v. Wallace, 68 Va. 396 (27 Gratt.) 77, 87 (1876)).

Under Virginia law, an easement may be created by "express grant or reservation, by implication, by estoppel or by prescription." Bunn, 222 S.E.2d at 525. In this case, plaintiff claims a valid easement for the benefit of lots 238-240 under a theory of an easement by express reservation, and an easement for the benefit of the Reamy property under the alternative theories of an easement by implication or an easement by prescription. Each of these three theories is discussed in turn.

A. Easement by Express Reservation

Plaintiffs claim for the existence of an express easement rests solely on the effect of the previously quoted deed of partial release language. This language, according to plaintiff, makes the existence...