United States v. CERTAIN PARCELS OF LAND, ETC., Misc. No. 555.

• Decision Date: 04 November 1948
• Docket Number: Misc. No. 555.
• Citation: 89 F. Supp. 571
• Parties: UNITED STATES v. CERTAIN PARCELS OF LAND IN FAIRFAX COUNTY, VIRGINIA et al. (DAVIS, Intervenor et al.).
• Court: U.S. District Court — Eastern District of Virginia

89 F. Supp. 571

UNITED STATES v. CERTAIN PARCELS OF LAND IN FAIRFAX COUNTY, VIRGINIA et al. (DAVIS, Intervenor et al.).

Misc. No. 555.

United States District Court E. D. Virginia, Alexandria Division.

November 4, 1948.

George R. Humrickhouse, United States Atty., and A. Carter Whitehead, Special Asst. to the United States Atty., Richmond, Va., and D. Murnan Smith, Department of Justice, Washington, D. C., for the Government.

J. Randall Caton, Jr., Alexandria, Va., for the Belle Haven Realty Corporation.

Andrew W. Clarke, Alexandria, Va., Joseph W. Wyatt, and Frederick A. Ballard, Washington, D. C., J. Barton Phillips, Alexandria, Va., for intervenors.

Harry E. Cunningham, Alexandria, Va., appearing pro se.

BARKSDALE, District Judge.

Since hearing argument on the motions for intervention filed by certain property owners in the Belle Haven Subdivision, I have given the questions presented considerable thought and study. It is my conclusion that the individuals who purchased lots from the Belle Haven Corporation in its subdivision acquired easements in and to the sewer system, although no specific mention of any such easement was mentioned in either the deeds of conveyance or the contract of purchase.

In my opinion, these easements might properly be termed "easements by implication" or "by implied grant", although possibly they might come within the category of "easements by estoppel" or "easements of necessity".

In discussing "easements by implied grant", Mr. Minor states (1 Minor on Real Property 124) that the foundation principle upon which rests the creation of easements by implied grant, is that a grant of land carries with it by implication as incident thereto everything reasonably necessary to the enjoyment of the thing granted which it is in the power of the grantor to bestow. On this subject, Mr. Minor continues as follows:

"Sec. 104. Same-B. Quasi Easements Converted into Easements.

"We have seen that while no one can have a real easement in his own land, he may be accustomed to utilize part of his land for the benefit of another part, thereby creating a relation between the two parts, which may be termed a quasi easement, which, however, constitutes no real interest separate and apart from his general ownership of both tracts, and his consequent right to use either as he sees fit.

"But upon the same principle adverted to as the foundation of easements by implied grant generally, namely, that where one grants land he is presumed to pass all in his power to confer that is reasonably necessary to the enjoyment of the land granted, if the owner of the two tracts should convey the quasi dominant tenement, retaining the quasi servient tract, the grant of the former carries with it by implication the right to the continued use of the servient tract, as it had been previously used. But this is subject to the qualification, at least where the servient estate subsequently or simultaneously comes into possession of some one other than the original owner, that the quasi easement is (1) apparent, (2) continuous, and (3) reasonably necessary to the enjoyment of the dominant tract.

"Thus, in Sanderlin v. Baxter 76 Va. 299, 44 Am.Rep. 165 two estates, `Woodlawn' and `Fairfield', separated only by a public road, were both owned by W., who drained Woodlawn by ditches through Fairfield to the river. In 1811, W. granted Woodlawn to A. (under whom the plaintiff claimed) and in 1820 he devized Fairfield to D. (under whom the defendant claimed). The deed and will were...