Fairfax County Park Authority v. Atkisson

445 S.E.2d 101, 248 Va. 142, 10 Va. Law Rep. 1503, 1994 Va. LEXIS 103
CourtSupreme Court of Virginia
DecidedJune 10, 1994
DocketRecord No. 930819
StatusPublished
Cited by3 cases

This text of 445 S.E.2d 101 (Fairfax County Park Authority v. Atkisson) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fairfax County Park Authority v. Atkisson, 445 S.E.2d 101, 248 Va. 142, 10 Va. Law Rep. 1503, 1994 Va. LEXIS 103 (Va. 1994).

Opinion

JUSTICE HASSELL

delivered the opinion of the Court.

This appeal involves legal issues relating to the obstruction of an express easement that provides ingress and egress to a family cemetery.

I.

George B. Atkisson and his wife, Carlotta T. Atkisson, filed their amended bill of complaint against the Fairfax County Park Authority, Wexford Associates, Inc., and 56 owners of lots located [144]*144in the Wendover Subdivision, Section III, in Fairfax County. The Atkissons alleged that they own a property interest in an easement that provides ingress and egress to their family cemetery and that the defendants had constructed obstructions that interfere with the Atkissons’ use of the easement. The Atkissons sought a declaration of the existence and extent of their easement and compensatory and punitive damages.

The trial court granted the defendants’ demurrer to the amended bill. We awarded the Atkissons an appeal from that judgment, and we reversed the judgment by an unpublished order and remanded the case to the trial court for further proceedings. Atkisson v. Wexford Associates, Inc., Record No. 890169 (April 26, 1989).

Upon remand, the parties had a trial on the merits. During the trial, the Atkissons nonsuited 38 of the 56 defendants who were lot owners. The case proceeded against the remaining lot owners, Wexford Associates, and the Park Authority.

The chancellor held, among other things, that the Atkissons have an express easement that granted them access to the cemetery. The chancellor established the location of the easement, but decided that he would not grant injunctive relief to the dominant owners because such relief would have required the servient owners to remove improvements such as homes and swimming pools. The chancellor entered a decree requiring that each lot owner, whose lot obstructs the easement, pay $100 to the Atkissons and that Wexford Associates pay the Atkissons $10,000 in punitive damages. Neither the lot owners nor Wexford Associates assigned error to the chancellor’s decree. The chancellor also ordered that the Park Authority, at its expense, provide a new easement for the Atkissons on land owned by the Park Authority. We awarded the Park Authority an appeal.

' We will state the facts in the light most favorable to the Atkissons, the parties who prevailed in the trial court. In the late 1800s, Mary C. Saunders, Mr. Atkisson’s aunt, owned several parcels of land in Fairfax County. She conveyed a 15-acre parcel to Thomas S. Adams, Mr. Atkisson’s grandfather, by an 1892 deed. This recorded deed creates an express easement, described as a right-of-way 15 feet wide, over several tracts of land and extending to a public road. The easement allows ingress and egress to the 15-acre parcel.

[145]*145In 1896, as a result of a decree that had been entered in a partition suit, Mr. Adams received other property referred to as Lot No. 2, that adjoined his 15-acre parcel. The cemetery lot is located on either or both of these properties.

Mr. Adams died intestate, and his heirs inherited both properties, including the easement. By a deed dated March 1978, the heirs of Mr. Adams conveyed their interest in the property to Harold O. Miller, trustee.

In 1977, Charles and Audrey Hawthorne acquired a large parcel of property that was burdened with the easement. The Hawthornes initiated proceedings to obtain the necessary permits and zoning amendments so that the property could be subdivided into residential lots. In 1980, Mr. Atkisson appeared before two public hearings of the Fairfax County Board of Supervisors and contested the Hawthornes’ proposed subdivision plan because it interfered with the easement that provided access to the cemetery. The Hawthornes “acknowledged” Mr. Atkisson’s concerns regarding the easement.

After the property had been rezoned, the Hawthornes conveyed it to Wexford Associates. After the conveyance, Mr. Atkisson contacted J. Stewart Porter, an officer of Wexford Associates, and inquired what Wexford Associates intended to do regarding the easement on the property. Porter informed Mr. Atkisson that he (Porter) would “be in touch with [him].” Later, Mr. Atkisson met with Porter and a surveyor retained by Wexford Associates. Mr. Atkisson showed them the location of the easement on the property. At that time, Mr. Atkisson thought that Wexford Associates would not obstruct the easement.

Wexford Associates subdivided its property into 40 residential building lots and an unimproved parcel. Wexford Associates conveyed the unimproved parcel to the Park Authority. The easement transverses part of the parcel conveyed to the Park Authority. Wexford Associates made no provision in its deed of dedication or in its recorded plat for the easement.

After construction of the subdivision began, Mr. Atkisson contacted Wexford Associates’ employees and sent a letter to Porter inquiring about the easement. Mr. Atkisson also contacted a vice-president of Wexford Associates’ title insurance company and retained counsel. Wexford Associates ignored Mr. Atkisson’s concerns, continued to develop the property, and constructed houses and other improvements on the easement. The houses were subse[146]*146quently conveyed to the lot owners, who are defendants in this litigation.

II.

A.

The Park Authority argues that the Atkissons do not own an express easement because the Atkissons “failed to establish at trial that they owned the dominant estate to which the access easement is appurtenant.” The Atkissons argue that they presented evidence from which the chancellor could infer that they had an ownership interest in the cemetery that is a part of the dominant estate. We agree with the Atkissons.

The decree that was entered as a result of the partition suit of 1896 preserved a portion of land for the family cemetery. The partition decree does not contain a metes and bounds description of the cemetery. A factual dispute arose at trial regarding the location of the cemetery. The chancellor made a factual finding that a portion of the cemetery was located on the 15-acre parcel that had been owned by Mr. Adams. The chancellor’s factual finding is supported by the testimony of a surveyor who was able to locate certain monuments in the 1892 deed. As mentioned earlier, this 15-acre parcel was the dominant estate that was served by the express easement created in the 1892 deed from Ms. Saunders to Mr. Adams.

The chancellor implicitly found that Mr. Atkisson owned a property interest in the cemetery, and the evidence of record supports the chancellor’s finding. David Carr, who was the Atkissons’ expert witness, testified that he examined the title to the property involved in this litigation, and the records show that Mr. Atkisson, as an heir of Mr. Adams, owns an interest in the cemetery lot.

The Park Authority also asserts that the Atkissons do not have an interest in the cemetery because, purportedly, a deed dated March 1978 conveyed the 15-acre parcel and Lot No. 2 to Miller as trustee, who subsequently conveyed his interest in the land without exception to a land development company. This company subsequently conveyed its interest in the property to a partnership that subdivided the land and created a subdivision. The Park Authority asserts that the cemetery is now a part of the newly created subdivision and that the Atkissons do not have an ownership [147]

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Bluebook (online)
445 S.E.2d 101, 248 Va. 142, 10 Va. Law Rep. 1503, 1994 Va. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fairfax-county-park-authority-v-atkisson-va-1994.