Preshlock v. Brenner

• Decision Date: 25 November 1987
• Docket Number: No. 841255,841255
• Citation: 234 Va. 407,362 S.E.2d 696
• Parties: Robert PRESHLOCK, et al. v. Janet M. BRENNER. Record
• Court: Virginia Supreme Court

Page 696

362 S.E.2d 696

234 Va. 407

Robert PRESHLOCK, et al. v. Janet M. BRENNER.

Record No. 841255.

Supreme Court of Virginia.

Nov. 25, 1987.

Richard S. Simpson, Alexandria, for appellants.

William F. Etherington, Richmond, (R. Mark Dare, Hazel, Beckhorn & Hanes, Fairfax, on brief), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

The question presented in this appeal is whether a private party can acquire a prescriptive easement over land of another private party that is already subject to a public easement.

Robert and Linda Preshlock (the Preshlocks) brought this chancery suit against Janet M. Brenner and the City of Alexandria asking the trial court to determine that the Preshlocks had acquired a prescriptive easement. The alleged easement is located on land owned in fee simple by Brenner that is subject to a storm sewer easement previously conveyed to the City.

The facts, as alleged in the bill of complaint, are as follows. The Preshlocks and Brenner own adjoining lots on Maple Street in the City of Alexandria. A driveway runs from Maple Street through a corner of Brenner's lot to the Preshlocks' parcel. The Preshlocks and their predecessors in title "have used the driveway openly, visibly, constantly, continuously, adversely, hostilely, uninterruptedly, exclusively and under a claim of right for a period of more than 20 years." Thus, the Preshlocks claim that they have acquired a prescriptive easement for a right-of-way over Brenner's land.

By a deed recorded in 1928, one of Brenner's predecessors in title conveyed to the City an easement for the location, construction, and maintenance of a storm sewer. The City's storm sewer is located under the portion of Brenner's lot over which the Preshlocks claim their prescriptive easement.

Brenner demurred to the bill of complaint on the ground that a prescriptive easement cannot be acquired in property affected with a public interest. The City moved for summary judgment, contending that even if the Preshlocks had acquired a prescriptive easement, the City's use of the subject property "continues unimpaired." The trial court sustained Brenner's demurrer, granted the City summary judgment, and dismissed the bill of complaint with prejudice. The Preshlocks appeal. ¹

The trial court ruled as a matter of law that the Preshlocks could not acquire a prescriptive easement. The court relied upon the rule of Lynchburg v. C. & O. Ry. Co., 170 Va. 108, 116, 195 S.E. 510, 514 (1938), that "no prescriptive right can be acquired in property affected with a public interest or dedicated to a public use."

In Lynchburg, the City of Lynchburg sought to establish a prescriptive easement in the undiminished flow of water in a canal used as an outlet for the City's sewers. A railway company, the canal owner, had maintained the flow of water in the canal for a public purpose. We held that because "the flow of the water was being maintained in the canal for a public purpose, the city could not acquire any right thereto by ... prescription." Id. at 117, 195 S.E. at 514.

The Preshlocks do not challenge the Lynchburg rule, but assert that it has no application to the facts of the present case. They state that they do not seek to establish an easement that would "affect the easement interest of the City," but seek only an easement that would affect the property interest of Brenner, the fee simple owner. Indeed, the Preshlocks acknowledge that the easement they seek "would be subject to the City's easement, with the City's easement interests being paramount over [theirs]." (Emphasis in original.)

We agree that Lynchburg has no application to the facts in the present case. In Lynchburg, the City sought to establish prescriptive rights in the flow of water maintained in a canal "for a public purpose." Id. at 117, 195 S.E. at 514. Here, however, the Preshlocks do not seek to establish an interest against the City's right to use the property for a storm sewer. They seek only an easement of way against Brenner's fee. Thus, rather than asserting a prescriptive claim against the public use of the property, the Preshlocks acknowledge the superiority of the public easement and claim only against whatever interest Brenner retains as the owner of the servient fee.

Ordinarily, when a tract of land is subjected to an easement, the servient owner may make any use of the land that does not unreasonably interfere with the use and enjoyment of the easement. See Willing v. Booker, 160 Va. 461, 466, 168 S.E. 417, 418 (1933). The servient owner's right reasonably to use the land includes the right to grant additional easements in the same land to other persons. City of Pasadena v. California-Michigan Land & W. Co., 17 Cal.2d 576, 579, 110 P.2d 983, 985 (1941); Nemaha Natural Resources District v. Village of Adams, 207 Neb. 827, 829, 301 N.W.2d 346, 348 (1981); Sanders v. Roselawn Memorial Gardens, 152 W.Va. 91, 112, 159 S.E.2d 784, 797 (1968). If the first easement is not exclusive, subsequent concurrent easements that are not unreasonably burdensome or inconsistent with the original easement are valid. City of Pasadena, 17 Cal.2d at 578-79, 110 P.2d at 984-85; Kiwala v. Biermann, 555 S.W.2d 663, 667 (Mo.Ct.App.1977). Any easement subsequently granted is...