Morris v. Parker
| Docket Number | 1700-22-1 |
| Decision Date | 23 January 2024 |
| Parties | THOMAS E. MORRIS, ET AL. v. ANTHONY HEATH PARKER, ET AL. |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE John W. Brown Judge
Douglas E. Kahle (Basnight, Kinser, Leftwich & Nuckolls P.C., on briefs), for appellants.
Mark R. Baumgartner (Kristen R. Jurjevich; Pender & Coward P.C., on brief), for appellees.
Present: Judges O'Brien, AtLee and Malveaux Argued at Norfolk, Virginia
Thomas and Karen Morris appeal a final order that denied their claim for an implied easement over a right of way allegedly abutting their property and that refused to enjoin their neighbors, Anthony and Donna Parker, from interfering with their use of the purported easement. The Morrises argue the court misapplied the law of implied easements by requiring proof of necessity and prior use of the right of way. The Morrises also contend the court erred by ignoring evidence that their right to use the easement was created "pursuant to the deeds and recorded plats and surveys appearing in their chain of title." For the following reasons, we affirm.
In October 1998, the Morrises acquired a tract of land in Chesapeake consisting of two parcels, "Parcel 3" and "Parcel 5" (collectively, the "Morris property"). At the time of conveyance, Parcel 3 comprised the west side of the Morris property and Parcel 5 comprised the east side. The 1998 deed incorporated a land survey showing the two parcels. As reflected in the survey, a right of way named "Flurry Road" borders Parcel 5 on its east side. More recent land records identify Flurry Road as "Fluridy Road." The Morrises have never used any right of way they claim to be Flurry/Fluridy Road; instead, they access the Morris property via Sanderson Road (southern border) and Foreman Road (western border).
The Parkers own two parcels of land on the other side of the platted Flurry/Fluridy Road, which they acquired in 2003 (collectively, the "Parker property"). The two parcels are depicted as "Tract D" and "Tract E" on a plat attached to their 2003 deed.[1] The Parkers access their home via a gravel road, which they claim is depicted on the plat attached to their 2003 deed as a dotted "dirt lane" to the east of their property line and thus entirely on their property (the "gravel road").
In 2017, the Morrises re-subdivided the Morris property, eliminating Parcel 5 and creating a smaller "Parcel 5-A" that now borders Flurry/Fluridy Road as depicted on a 2017 plat.
The Morrises wanted to sell Parcel 5-A and install a driveway connecting Parcel 5-A to the gravel road, which they assert is the platted Flurry/Fluridy Road and which would provide access to a public thoroughfare to the south. When Thomas Morris discussed the proposed driveway with Anthony Parker, however, Parker objected and told Morris that he could not "use [Parker's] property." In January 2020, the Morrises filed a declaratory judgment action against the Parkers, seeking an order "confirming [the Morrises'] right . . . to use [the gravel road] to access the Morris Property" and to "enjoin the [Parkers] from interfering with or otherwise impeding that right."
After the parties exchanged discovery, the Morrises moved for summary judgment, arguing that the undisputed evidence demonstrated they had an implied easement across the gravel road and the Parkers had no basis for denying them access.[2] Opposing the motion, the Parkers argued that the Morrises "fail[ed] to provide the [c]ourt with any reasonably accurate description of the location of the easement" and the "burden rests squarely on the [Morrises] to prove the grant or dedication of an easement, and the location and scope of that easement." The court denied the summary judgment motion, finding inter alia "[d]isputes of material fact regarding . . . the location of the alleged easement in comparison to that of the [Parker]s' driveway."
The parties proceeded to trial. The Morrises introduced evidence, including expert testimony from title examiner Tiffany Abramowski, showing that the Morris property and the Parker property were once owned by a common grantor, that the Morrises' deed as well as the Parkers' deed, together with other deeds and documents in their chains of title, consistently describe their respective properties by reference to a 1909 subdivision plat recorded in the clerk's office for the city of Chesapeake, and that this 1909 subdivision plat depicts the Morris property and the Parker property abutting Flurry/Fluridy Road, directly across from one another.
Abramowski testified that, consistent with the 1909 subdivision plat, the plat attached to the Parkers' 2003 deed shows that the Parker property abuts the east side of Flurry/Fluridy Road and that Flurry/Fluridy Road, as platted, is not located within the boundaries of the Parker property. She stated that, in her expert opinion, the land records established that neither the Morrises nor the Parkers owned the platted Flurry/Fluridy Road.
Abramowski did not testify about the physical location of Flurry/Fluridy Road, merely its location as platted in the land records. Regarding the platted Flurry/Fluridy Road, she testified that she did not know "[w]hether it was developed or not, whether it's gravel or dirt or whatever" and "[t]here's no way to really tell exactly where it is."
The Morrises introduced a photograph of a "Fluridy Road" street sign posted at the gravel road leading to the Parkers' residence. However, Thomas Morris testified, "I don't know" when asked whether the gravel road was "in the same place" as the platted Flurry/Fluridy Road. He acknowledged that a large ditch separates the parties' properties.
The Parkers disputed that the gravel road was the same as the Flurry/Fluridy Road depicted in land records. Instead, Anthony Parker testified that the gravel road is located on the Parker property, to the east of a "pin" marking his property's western boundary. The Parkers maintained that the Flurry/Fluridy Road, as platted, is undeveloped and actually runs along the ditch separating the parties' respective properties:
[T]here's a ditch, and that's where [Flurry/]Fluridy Road is platted. And if Mr. Morris wants to fill in that ditch and get approval from . . . the [c]ity to fill in that ditch and build himself a superhighway, he can do that, but what he can't do is come to this [c]ourt and say, "I want to drive across Mr. Parker's lane" without first establishing Mr. Parker's lane is within the right-of-way that was platted as Flurry Road. And it's not. There's no evidence to say that it does.
Counsel for the Parkers proffered, without objection, that the "Fluridy Road" street sign was yellow and thus denoted a private-property lane rather than a city street. Additionally, Parker pointed out that neither the Morrises nor their predecessors in title had ever used the purported easement and therefore any rights had been abandoned. Finally, Parker testified that he had improved the gravel road, once used primarily for hunting access, into a driveway for his residence.
Neither party presented testimony from a surveyor indicating whether Flurry/Fluridy Road, as platted, matches or does not match any actual, on-the-ground location. In other words, no surveyor testified for the Morrises that the platted Flurry/Fluridy Road matches the gravel road, and no surveyor testified for the Parkers that Flurry/Fluridy Road matches the ditch separating the parties' properties.[3]
After considering the evidence and post-trial briefs, the court issued a letter opinion finding that the Morrises failed to "establish an implied easement." To reach this conclusion, the court applied a three-prong test from Russakoff v. Scruggs, 241 Va. 135 (1991):
While the extent of the easement rights is determined by the circumstances surrounding the conveyance which divides the single ownership, the existence of the [implied] easement is established on a showing that (1) the dominant and servient tracts originated from a common grantor, (2) the use was in existence at the time of the severance, and that (3) the use is apparent, continuous, and reasonably necessary for the enjoyment of the dominant tract.
Id. at 139 ().
The court "[a]ssum[ed] without deciding that the first element, the presence of a common grantor, ha[d] been established." However, it found "no evidence . . . that the use was in existence at the time of the severance or that it was apparent, continuous, and reasonably necessary."
The court entered a final order incorporating its letter opinion and dismissing this matter with prejudice. This appeal followed.
The Morrises argue the court misapplied the law of implied easements-by requiring them to prove that use of their claimed right of way was "in existence at the time of the severance" and "apparent, continuous, and reasonably necessary," under Russakoff. They argue that, as grantees of property conveyed with reference to a subdivision plat, they are automatically entitled to an easement in a right of way adjoining their property, pursuant to Lindsay v. James, 188 Va. 646 (1949), and Ryder v. Petrea, 243 Va. 421 (1992). We do not reach the issue of whether the Morrises were required to show prior use and necessity, however, because the Morrises failed to prove a key threshold fact: the physical location of their claimed easement.
"It is well-established that the party who claims an easement bears the burden of proving the fact." Mulford v Walnut Hill Farm Grp., LLC, 282 Va. 98, 112 (2011). "Both declaration and enforcement of an easement are equitable remedies, and he who seeks such equitable relief must prove 'the facts that give rise to...
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