Mulford v. Walnut Hill Farm Group Llc.

Citation282 Va. 98,712 S.E.2d 468
Decision Date09 June 2011
Docket NumberRecord No. 100333.
CourtSupreme Court of Virginia
PartiesGardiner S. MULFORD, et al.v.WALNUT HILL FARM GROUP, LLC.


Benjamin J. Trichillo (Trichillo, Bancroft, McGavin, Horvath & Judkins, on briefs), for appellants.Paul A. Simpson, Fredericksburg, (Stacie C. Bordick, Fredericksburg; Hirschler Fleischer, on brief), for appellee.Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, and MIMS, JJ., and RUSSELL and LACY, S.JJ.Opinion by Justice WILLIAM C. MIMS.

In this appeal we consider whether the circuit court erred in finding that appellant Gardiner S. Mulford (“Mulford”) did not have a legal right to access property that he owned in Culpeper County.


We will state the facts in the light most favorable to Walnut Hill Farm Group, (“Walnut Hill”) the prevailing party below. Prospect Dev. Co. v. Bershader, 258 Va. 75, 80, 515 S.E.2d 291, 294 (1999). We recite only those facts relevant to the issues presented in this appeal. Patel v. Anand, L.L.C., 264 Va. 81, 83, 564 S.E.2d 140, 142 (2002).

In 2006, Mulford, a real estate broker, purchased a tract of land comprised of 78.26 acres (“the property”) in southeastern Culpeper County. Mulford purchased the property after being advised by the seller that it might be landlocked and reviewing an appraisal that concluded an access easement would need to be acquired. The appraisal also reflected that the property, as shown on Culpeper Tax Map 55–B, was subdivided for residential development into eighteen lots, zoned A–1, of approximately four acres each.1

In the real estate contract, the parties struck out, and Mulford initialed, language guaranteeing an easement for access. The seller conveyed the property to Mulford by special warranty deed with a quitclaim as to any such easement. 2

Mulford had visited the property in 2002 to determine if there was access to a public road. During that visit, he discovered the sunken remains of an old plank road (“the roadbed”), now grown over, and walked from Route 610 to the property along it. Based on this discovery, Mulford believed there was an easement to access the property.

Mulford conducted his own title search of the property and also purchased title insurance, issued in July 2006, which ensured a right of access by way of a roadway appearing in the various plats and corresponding to the roadbed he discovered during his visit in 2002. The chain of title, dating back to 1833, indicated a roadway corresponding generally to the one Mulford had seen, with a variety of names, including the Brandy Road, Thornton Road, Old Stony Ford Road, Fredericksburg Plank, and Bundy Town Road.

As it appears in the various title documents, the roadway is nearly two miles long and traverses farms and undeveloped land between Routes 610 and 724 to the south, and Route 672 to the north. Between Mulford's tract and Route 610, the visible roadbed traverses land owned by Walnut Hill. On the plats in both Mulford's and Walnut Hill's chains of title, the roadway appears to provide the sole means of ingress and egress for the Mulford property.

The property and that portion of Walnut Hill's tract that is east of the roadway were once part of a much larger estate. Prior to 1866, William Redd owned approximately 925 acres on the east side of the roadway, which he labeled “Brandy Road” on the plat attached to his will. Pursuant to his will, the land was severed into six tracts, including a timber dower along the roadway.3 The timber dower, which later became known as Godfrey's Retreat, is the property that Mulford purchased in 2006. Another tract, identified as Son No. 3 in the 1866 plat, bordered the dower tract to the south and the roadway to the east. It is the origin of title for that portion of Walnut Hill's tract east of the road.

After the purchase, Mulford visited the property on horseback. He testified that the roadbed was grown over with [s]aplings and stickers and brush.” He began preparing to clear the roadbed, including putting stakes in the ground to keep vehicles from using it. Mulford testified that he learned from a neighboring landowner that Walnut Hill disapproved of his activities.

Shortly thereafter, Mulford received a letter from Daniel J. LaBriola, managing partner of Walnut Hill. LaBriola wrote that he had learned Mulford was trespassing on Walnut Hill's property and cutting standing timber. He advised Mulford to cease trespassing immediately. Mulford responded with a letter informing LaBriola that he would exercise what he asserted to be his deeded right of way between Route 672 and 724 “to the fullest degree.”


In a letter dated September 4, 2007, James E. Madden (“Madden”), Walnut Hill's financial manager, warned Mulford that he was trespassing and stated that if Mulford entered Walnut Hill's property, a criminal warrant for trespass would be issued for his arrest. Following receipt of that letter, Mulford began to clear the roadbed.

On September 12, 2007, Madden filed a criminal complaint against Mulford, alleging that Mulford trespassed on his property on August 26, 2007 by foot and on August 27, 2007 by tractor. Mulford was arrested for trespassing, and the complaint resulted in an order of nolle prosequi. After Mulford initiated a tort suit against Walnut Hill and Madden, Walnut Hill filed a complaint against Mulford with the Greater Piedmont Area Association of Realtors, Inc. (“GPAAR”), a body that has regulatory authority over Mulford's activities as a realtor.


On November 5, 2007, Mulford filed a four-count complaint against Walnut Hill and Madden (collectively “Walnut Hill”) for defamation for stating that Mulford was trespassing, insulting words for the posted “No Trespassing” signs identifying Mulford as a trespasser, and malicious prosecution and false imprisonment for his arrest. He alleged that the roadbed was a lawful, recorded easement described in the land records as Stony Ford Road, Brandy Road, Thornton's Road, and Bundy Town Road.

Walnut Hill filed an answer, and then an amended answer. Walnut Hill also filed a counterclaim against Mulford and third-party defendant Mulford @ Godfrey's L.L.C. (“Godfrey's”), the record owner of the tract at that time, alleging trespass and seeking injunctive relief barring Mulford and his successors in title from entering its property. Alternatively, if the circuit court determined that “any lawfully established road” did exist, the counterclaim sought a determination that it was only eight feet wide.4

Mulford and Godfrey's filed an answer to the counterclaim in which they asserted that Walnut Hill was estopped from denying the existence of the easement because the deeds to its predecessors in title mentioned it under its various names. Third-party defendant Godfrey's filed a counterclaim against Walnut Hill for declaratory judgment that the 35–foot–wide “lawful easement and/or right-of-way” existed and seeking injunctive relief barring Walnut Hill from restraining Mulford's use of it. In its answer to Godfrey's counterclaim, Walnut Hill again denied the existence of the easement.

Mulford then filed an amended complaint against Walnut Hill alleging defamation per se for Walnut Hill's letter to the GPAAR, use of insulting words in the no trespassing sign, and malicious prosecution and false imprisonment for instigating the criminal trespass arrest. In his amended complaint, he again asserted the existence of a recorded, approximately 35–foot–wide easement. Thus, he contended, Walnut Hill's actions had been vindictive and without lawful authority.

Walnut Hill subsequently filed an amended answer, denying the existence of any public road or any recorded easement. It also filed a demurrer asserting that the statements set forth in the amended complaint were not defamatory and that nothing in the no trespassing sign constituted insulting words.

The circuit court sustained the demurrer as to Mulford's defamation and insulting words claims to the extent those claims were based on the criminal trespass warrant. The order noted that counsel agreed “that the Amended Complaint does not seek declaratory or injunctive relief with regard to the alleged easement.”

Mulford subsequently moved to bifurcate the proceedings to separate the competing claims for declaratory judgment and injunctive relief in the counterclaims from the tort claims in his complaint. After a hearing, the circuit court granted the motion.5

The matter proceeded to trial on Walnut Hill's counterclaims against Mulford for injunctive relief, and on Mulford's counterclaim against Walnut Hill for injunctive relief. In his bench brief and at trial, Mulford relied on three theories of recovery: that the roadbed was a public road, that Walnut Hill was equitably estopped to deny the existence of a right of way in its chain of title, and that Mulford was entitled to a prescriptive easement.6

Following a trial on the question of whether an easement existed, the circuit court determined that the various references to the roadway in the deeds to Walnut Hill's predecessors in title did not estop Walnut Hill from denying the existence of the easement because there was no representation by Walnut Hill to Mulford that an easement existed or that he could use the portion of the roadbed that crossed its property. Moreover, the prior owner informed Mulford prior to the sale that there was no easement and that the parcel was landlocked.

The circuit court then determined that Mulford failed to prove by clear and convincing evidence that an easement existed. The court found that a...

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