Shooting Point, LLC v. Wescoat

• Decision Date: 28 February 2003
• Docket Number: Record No. 020801,Record No. 020803.
• Court: Virginia Supreme Court
• Parties: SHOOTING POINT, L.L.C., et al., v. John W. WESCOAT. John W. Wescoat, v. Shooting Point, L.L.C., et al.

576 S.E.2d 497

265 Va. 256

SHOOTING POINT, L.L.C., et al., v. John W. WESCOAT.

John W. Wescoat, v. Shooting Point, L.L.C., et al.

Record Nos. 020801, 020803.

Supreme Court of Virginia.

February 28, 2003.

Robert W. McFarland (Steven R. Zahn, Norfolk; Daniel R. Morris, Virginia Beach; McGuire Woods, Norfolk, on briefs), for Shooting Point, LLC., et al.

Jon C. Poulson, Accomac, for John W. Wescoat.

Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and CARRICO,¹ S.J.

Opinion by Justice BARBARA MILANO KEENAN.

In this appeal, we primarily consider whether the chancellor erred in determining the location of an easement and in ruling that the proposed use of the dominant estate as a residential subdivision would not overburden the servient estate.

John W. Wescoat owns a tract of land in Northampton County (the Wescoat parcel) that is subject to a recorded easement in favor of a 176-acre tract owned by Shooting Point, L.L.C. (the Shooting Point parcel). The easement, which is 15 feet wide and 0.3 mile in length, is the only means of ingress and egress between the Shooting Point parcel and a nearby state highway. In response to a plan by Shooting Point, L.L.C. (Shooting Point) to develop its parcel into a residential subdivision, Wescoat filed a bill of complaint alleging, among other things, that Shooting Point's proposed use of its parcel would "impose an additional and unreasonable burden on the easement" over Wescoat's land.

After hearing the evidence ore tenus, the chancellor ruled that use of the Shooting Point parcel as a residential subdivision would not overburden the servient estate. The chancellor also determined that the actual location of the easement was as shown on certain survey plats. Both Wescoat and Shooting Point appeal.

The evidence before the chancellor showed that the Shooting Point parcel is separated from State Highway Route 622 (Route 622) by the Wescoat parcel. The easement, which follows a dirt road over the Wescoat parcel, is located between a field on one side and woods on the other side. The dirt roadway has three 90-degree turns, including two turns that are "blind" where the wooded areas obscure approaching traffic.

In 1974, Wescoat's predecessors in title executed and recorded a written grant of easement establishing the right-of-way. The grant described the location of the easement in the following terms:

[S]aid right-of-way easement to follow the present road leading from Virginia State Highway Route 622 to lands ... known as Shooting Point Farm, said present road running generally in a northerly direction from a point in a turn of said Virginia State Highway Route 622 to a point at or near a corner of a certain woods, thence turning in a generally easterly direction and running along the northern edge of said woods to a point at or near the edge of said woods, thence turning in a generally northerly direction and following along the edge of said woods to a point at or near a corner of said woods, thence turning in a generally easterly direction and running along the edge of said woods until the boundary line separating Shooting Point Farm from the [Wescoat parcel] is reached, at which boundary line the said right-of-way easement terminates.

The grant further described the right-of-way as "the only easement to provide a means of ingress and egress" from Route 622 to the Shooting Point parcel. The grant did not contain a clause limiting use of the easement.

At the time the easement was established, both the servient estate and the dominant estate were used primarily for agricultural and recreational purposes. In June 1979, Shooting Point's predecessors in title conveyed 13.2 acres at the southern border of the Shooting Point parcel to Richard E. Meekins, Sr. The deed conveyed to Meekins the right to use the easement as shown on a plat prepared in May 1979 by Bonifant Land Surveys (the Bonifant plat).

In December 1999, Shooting Point purchased the dominant estate and began planning the development of a residential subdivision. The proposed subdivision has 18 residential lots, each averaging over five acres, which border a 50-acre lot to be preserved as "open space."

Shooting Point recorded a plat in the circuit court clerk's office, prepared by Baldwin & Gregg Surveyors (the Gregg plat), that showed the proposed subdivision and the 15-foot-wide easement connecting the Shooting Point parcel to Route 622. The Gregg plat incorporated the Bonifant plat and, in depicting the easement, adopted the Bonifant plat's courses, distances, measuring points, and centerline.

Shooting Point also recorded a declaration of protective covenants that incorporated the Gregg plat, and later used that plat to describe the easement in a deed of trust conveying a subdivision lot to a trustee. Shooting Point conveyed certain other subdivision lots in five separate deeds, each conveying the right to use the easement and referencing the Gregg plat's depiction of the right-of-way.

In January 2000, Wescoat sent a letter to some of the subdivision lot purchasers advising them that the easement was restricted to a width of 15 feet. Wescoat further informed the purchasers that the right-of-way would be "clearly marked" to make them aware of the easement's width. Wescoat's son placed two stakes 15 feet apart at the easement's entrance near Route 622 that straddled the existing usage of the easement. A large sign was placed near the stakes that read, "Begin 15 Foot Right of Way."

In February 2000, Wescoat filed a bill of complaint against Shooting Point alleging that Shooting Point's proposed use of its parcel as a residential subdivision was not reasonable and would create "an additional and unreasonable burden" on the easement. Wescoat asked the chancellor, among other things, to enjoin Shooting Point from selling and conveying the remaining lots in the proposed subdivision.

In January 2001, Wescoat employed George E. Walters, a certified land surveyor, to survey the easement and to place markers delineating its course. After Walters situated the markers on the property, Wescoat's son placed wooden posts outside those markers along the roadway to designate the easement's course. In general, the pathway created by the posts followed the line of the woods more closely than the existing roadway and resulted in "sharper" 90-degree turns.

In February 2001, Wescoat filed a bill of complaint for declaratory judgment against Shooting Point, L.L.C., Shooting Point Property Owners Association, Inc. (collectively, Shooting Point), and others, seeking various rulings concerning Shooting Point's use of its property. The chancellor consolidated Wescoat's two suits for trial.

Before trial, Shooting Point requested leave to file a cross-bill in Wescoat's declaratory judgment suit. In its proposed cross-bill, Shooting Point sought a determination of the easement's location and removal of the posts that Wescoat's son had placed along the course of the easement. The chancellor denied Shooting Point's motion.

Shooting Point also filed a motion in limine to exclude from evidence Walters' testimony and the two revised plats he prepared depicting the easement (the Walters plats) on the ground that this evidence was not timely disclosed. Shooting Point did not receive copies of Walters' revised plats until the day before trial.

In response to the motion in limine, Wescoat noted that no order had been entered regulating discovery in the case, and that Shooting Point also was not timely in its disclosures, having designated an expert witness only the day before trial. The chancellor denied Shooting Point's motion in limine.

On the first day of trial, Wescoat moved the chancellor to continue the case on the ground that the issue of the easement's location was not properly before the court. Shooting Point opposed the motion, arguing that the issue was "directly" before the court. The chancellor denied the continuance motion.

At trial, the chancellor received evidence from expert witnesses indicating that the proposed residential subdivision would generate daily about ten vehicle trips per lot. Thus, the proposed subdivision would result in an additional 180 trips daily over the easement.

Wescoat's son, John W. Wescoat, Jr., testified that vehicles traveling in opposite directions on the easement could not pass at the same location. John stated that the worn roadway remained the same from 1977 to 1999, and that, after Shooting Point purchased its parcel, the traffic on the easement increased and the roadway became wider as motorists drove around "mudholes" in the easement and "cut" corners at the turns in the roadway.

Curtis Jones, Jr., Wescoat's cousin, leased both the Wescoat and Shooting Point parcels for farming purposes. Jones testified that he and his employees make heavy use of the easement when they plant, maintain, irrigate, and harvest the crops.

Wescoat presented the testimony of Walters, who qualified as an expert witness on the subject of land surveying. He testified that the easement was first surveyed in 1979 by P. Bonifant, and that Walters created his plats in an attempt to "resurvey" the easement shown on the Bonifant plat.

Walters stated that he first chose a buried survey pin, or "rebar," that he discovered in the middle of the existing roadway near Route 622 to mark the centerline of the easement, and that he originally used that centerline in his plat to delineate the easement's course. However, after a consultation with Bonifant, Walters later concluded that a "`bent rebar' marker," located approximately nine feet east of the other "rebar," was the marker indicating the correct location of the easement's centerline. Walters testified that he revised his plats to reflect the "bent rebar" as the centerline of the easement, which resulted in a nine-foot eastward shift of the easement's entrance onto Route 622.

Walters stated that the course designated on his revised plats...