Russakoff v. Scruggs

• Decision Date: 11 January 1991
• Docket Number: No. 900572,900572
• Citation: 400 S.E.2d 529,241 Va. 135
• Court: Virginia Supreme Court
• Parties: Richard L. RUSSAKOFF, et al. v. Kerry I. SCRUGGS, et al. Record

Page 529

400 S.E.2d 529

241 Va. 135

Richard L. RUSSAKOFF, et al. v. Kerry I. SCRUGGS, et al.

Record No. 900572.

Supreme Court of Virginia.

Jan. 11, 1991.

William S. Smithers, Jr. (James C. Bodie; Thompson, Smithers, Newman & Wade, Richmond, on brief), for appellants.

Barry W. Norwood, Richmond, for appellees.

Present: All the Justices.

LACY, Justice.

The issue we must decide on this appeal is whether lot owners established an easement for access to and use of a lake.

In the 1960s, Richmond Real Estate Developers, Inc., which was owned by E. Carlton Wilton and his two brothers as sole stockholders, began constructing Canterbury East subdivision, located in the Tuckahoe District of Henrico County. The subdivision included a man-made lake with a waterline at the contour line of about the 136' elevation, as shown on the Canterbury East subdivision plat filed with the county. Richard L. and Diane Y. Russakoff, Edward E. Haddock, and Edwin M. Lohmann (collectively Russakoff), each own a lot in Canterbury East subdivision. Their rear lot lines abut the 140' contour, thus leaving a strip of land approximately 20 feet wide, between the lots and the lake. This strip was reserved for flood plains, sewer lines, and water lines.

Richmond Real Estate Developers ceased paying taxes on the lake property, and it escheated to the Commonwealth. A tax sale was held on September 16, 1983, where Kerry I. and Doris J. Scruggs (collectively Scruggs) were the highest bidders. On May 25, 1984 the Commonwealth conveyed the lake property to Scruggs pursuant to the tax sale. Scruggs then posted "no trespassing" signs, erected a fence around the lake, and sent all homeowners surrounding the lake a letter offering them use of the lake by renting or purchasing shares. Further, Scruggs testified that, since the lake was in "bad need of repair and hadn't had anything done to it for years," as of the date of trial he had spent $8,231.53 on improvements, which included approximately $3,000 in taxes and insurance.

By bill of complaint filed February 10, 1988, Russakoff alleged that the right to use the lake had been acquired under a number of legal theories, including adverse possession. The trial court sustained Scruggs' demurrer on the adverse possession claim, but overruled the demurrer as to the other theories. In an amended bill of complaint, Russakoff alleged a right to use the lake by virtue of prescriptive easement, oral agreement, license, easement by implication, and easement by necessity. After an ore tenus hearing, the trial court ruled that Russakoff was not entitled to any easement or other rights to use Canterbury Lake. The court dismissed the action, and Russakoff appeals.

In the amended bill of complaint, Russakoff advanced various theories in support of the right of access to and use of Canterbury Lake. The trial judge did not relate his factual findings to any theory Russakoff identified, but characterized the claims as ones based on easements, and stated in an opinion letter and final order that Russakoff was "not entitled to any easement rights" in Canterbury Lake or "to the use of" the lake. Therefore, we must review the record to determine whether Russakoff failed to establish an easement under any of the three easement theories he pled, which were an easement created by prescription, by implication, or by necessity. ^*

We begin by reviewing the applicable legal principles. Easements are not ownership interests in the servient tract but "the privilege to use the land of another in a particular manner and for a particular purpose." Brown v. Haley, 233 Va. 210, 216, 355 S.E.2d 563, 567-68 (1987). Easements are appurtenant to, and run with, the dominant tract if they benefit the owner in his use and enjoyment of that tract. See Scott v. Moore, 98 Va. 668, 675, 37 S.E. 342, 344 (1900).

There are a number of ways an easement can be created. "Easements may be created by express grant or reservation, by implication, by estoppel or by prescription." Bunn v. Offutt, 216 Va. 681, 684, 222 S.E.2d 522, 525 (1976). In the case of easements over streets and roads, we have recognized the creation of an easement by reference in the deed to a plat showing the road, even if the street or road had not been created or was not being used at the time of conveyance. Walters v Smith, 186 Va. 159, 169-70, 41 S.E.2d 617, 622 (1947). Within the category of easements created by implication, we have recognized easements created by necessity, see, e.g., Middleton v. Johnston, 221 Va. 797, 802, 273 S.E.2d 800, 803 (1981), and by pre-existing use (also referred to as quasi-easements), see, e.g., Brown, 233 Va. at 218, 355 S.E.2d at 569. See also 1 R. Minor, The Law of Real Property § 99 (F. Ribble 2d ed. 1928).

Russakoff claims, inter alia, an easement arising by implication. Such an easement is based on the legal principle that when one conveys land, he is presumed to transfer all that is necessary to the use and enjoyment of the land conveyed. Brown, 233 Va. at 218, 355 S.E.2d at 569. While one cannot have an easement on land he owns, if, before severance, one part of the land was used for the benefit of another part, a "quasi-easement" exists over the "quasi-servient" portion of the land. That easement is conveyed by implication when the dominant tract is severed; the grantee of the dominant tract obtains an easement over the servient tract, based on the previous use. See generally Sanderlin v. Baxter, 76 Va. 299 (1882); R. Minor, supra, § 99.

While the extent of the easement right is determined by the circumstances surrounding the conveyance which divides the single ownership, the existence of the 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. Brown, 233 Va. at 219, 355 S.E.2d at 569; Fones v. Fagan, 214 Va. 87, 90-91, 196 S.E.2d 916, 919 (1973).

It is clear from the record before us that Russakoff's lots (dominant tracts), and the lake property (servient tract), were originally part of a single tract, thereby satisfying the first prong of the test. Next, the record is equally clear that, at the time Russakoff's predecessors in title took possession of the dominant tracts, the servient tract was a lake. Wilton testified as to the lake's existence, and the lake was reflected on the plat in the deeds conveying the dominant tracts to Russakoff's predecessors. The use of the servient tract as a lake, pre-existing the severance, was established.

Turning to the question of apparent and continuous use, the trial court identified Russakoff's use of a pump for lawn watering as the only use of the lake. This use, the trial court held, was not sufficient to establish an easement. Russakoff asserts that this holding is erroneous and that the record supports a finding that the use of the lake and strip of land to gain access to the lake was sufficient to establish an easement. We agree.

The record reflects that Russakoff and previous owners of the lots used the lake openly and continuously, through the construction of docks, piers, and sprinkler systems, and by using the lake for boating and ice skating. Mr. Lohmann, who purchased his lot in 1977, testified that he had a boat which his children used for fishing, frogging and "that type of thing," and when the lake was frozen in the winter they skated on the ice. Haddock testified that the lake was a "big consideration" in his purchase of his property in 1968. He "bought a boat along with the house so we could use it in the lake." The boat originally belonged to Mr. Sharp, Haddock's predecessor in title. Haddock testified that he used the lake for wading, built a pier (although it had disintegrated prior to Scruggs' purchase of the lake), and bought a canoe and used it on the lake. He also testified that...