Karen Underwood (Charles A. Kaplanek III) v. Bruce W. Streibich

• Court: Superior Court of The Virgin Islands
• Decided: April 26, 2024
• Docket: ST-1995-CV-459
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN Isl ANDS DIVISION OF ST THOMAS AND ST JOHN

KAREN UNDERWOOD ' ) (Charles A Kaplanek III) ) Plaintiffs ) CASE NO ST 95 (,V 00459 v ) ) Action {or Declaratory Relief BRUCE W STREIBICH ) Preliminary and Permanent Defendant, ) Injunctivc Relief and Damages m4 ) WARREN STRYKER and ) MARGARET STRYKER ) ) Intervcning Plaintiffs, ) HQ ) ARTHUR SCHMAUDER ELIZABETH ) MCGUIRE and BLUE WATERS ) Cite as 2024 VI Super 19 RETREAT LLC ) } Intervcning Defendants ) ) _—__—__—_) MICHAFL FITZSIMMONS ESQ CAROL ANN RICH ESQ Duensing 81. Casncr 5194 Dronningcns Gade, Ste 3 9800 Buccaneer Mall At Hibiscus Alley P O Box 6785 St Thomas V I 00802 St Thomas V I 00804 Allzszvs/or Defendant Attorneysfar Plamtgffand Inter venmg Plamtg/fx

MATTHEW J DUENSING ESQ G ADAM THOR? ESQ Ducnsing & Casner 5194 Dronningcns (Edda, Ste 3 9800 BuLcaneer Mall A1 Hibiscus Alley P O Box 6785 St Thomas V I 00802 St Thomas V I 00802 Atlarmyx for Defendant Attorneys for Plamtgff and Intervemng Plamlg/fv

' In I995 this action was brought by {119 original plainllfl Karen Underwood (Underwood) On June 30 2016 Underwood deeded Parcel No 4 27 Lame Labor & Harmony wlnch i: the aubjecl ofihis land diapule Io her 50“ Charla A Kaplanek 111 (Kaplanek Ill) and on March 4 2022 the Court accepted Kaplanek III as Underwood 5 cuccessor and pany in interim l'he namefi have bran med interchangeably lhroughom mm pmceedings and filings thus all refeanLcs w Underwood as Plainlifl alga "Apply (0 Kaplanek III as er successor UndLrwnod & Strykcr v Stnzblch W a] (.115 as 2024 VI Super 19 Case NO ST 1995 CV 0045‘) Memorandum Opinion

MARK D HODGE ESQ Hodge & Hodge 1340 Fdameberg St Ihomas V1 00802 Attorneys for Inlcrvcmng Defendanls

CARTY, Senior Sitting Judge

MEMORAND! M QPINION (Filed Apri126 2024) 111 UPON REMAND from the Supreme Court 01 the Virgin Islands this matter came on for a bench tria1 on April 3"I 4‘“ and 5‘h 2023 This cabe arises out 01 a land dispute regarding a right 01 way located at Estate Tabor & Hannony Nos 5 & 6 Last End Quamr St Thomas Virgin Island: On March 23, 2021 the Supreme Court affirmed the trial coun s ruling that there is an implied easement over Faisal No 4 26 The case was remanded back fot the determination of the location and scope of the easement on the 1957 Public Works map situated over tour (4) one acre parcels of 1and On April 4 2023 a site visit was conducted at Parcel No 4 Estate Tabor & Harmony with all parties present and testimony taken from expert surveyors Ryan Wisehart (Wischatt) of Brian Moseley & Associates, Inc on behalf of the Plaintiff and Intervening Plaintiffs (eollectively P1aintiffs ) and Harry Gautiloff (Gauriloft) of Marvin Beming & Associates on behalf of the Defendant and Intervening Defendants(colleetive1y Defendants ) 112 Prior to the site visit, the suweyors were Lharged with the responsibility at identifying the precise 10Lation by metes and bounds 01 the easement as illustrated on FWD B9 31 T57 map dated February 1958 (referred to as T57 ) and subdivision plan filed with the Govemment 0f the Virgin Islands by the then landowners, Marshall B Diersscn and Sidney C Dicrssen (the Dierssens) Each surveyor was required to travel to the site, without involvement of any of the parties and at separate times (a place color coded flags depicting the exact location of the easement based on their expertise 113 The Plaintiffs contend there is an implied easement on T57 which allows for vehicular access to theii properties situated at Parcel Nos 4 27 and Parcel 4 28 and Drawing No 3654 3 as produced by their expert suiveyor witness has properly defined the boundaries of the

2 Underwond & Stryker v Slrulmh, e! a] Cue as 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

easement Defendants euntend the T57 R O W no longer exists because portions thereof were deeded away in 1961 and 1962 and the owners 01 Parcel No: 4 22A 4 228 and 4 26 have not granted Plaintiffs permission to traverse upon their private driveway to access Plaintiff: properties Detenddnts further contend the Dierssens did not construct the existing concrete paved road as they had no intention to create a road as they did with the three private road systems throughout the subdivision Thus Plaintiffs must therefore access their properties from the lower private road 1|4 Incorporated in this memorandum opinion are the findings at tact and LonL1Ll510nS of law based on the evidence adduced at trial evidence on the record stipulations by the parties the procedural Iecord exhibits and all additional evidence deemed pertinent l'he single mandate before this Court i: to establish the location and the scope of the implied easement as depicted on the T57map situated on Parcel Nos 4 26 4 27 and 4 28 Estate Tabor & Harmony As explained below, this Court finds the implied casement as depicted on T57 lies across Parcel Nos 4 22A 4 22B 4 26 4 27 and terminates at the boundary perimetet of Parcel No 4 28, in favor of the Plaintiifs Due to multiple conveyances over several decades and tor the purpose at clarity it is necessary for this Court to start by illustrating the property tramfers from 1958 until present

FINDINGS OF FACT

A Conveyances of Parcels

1 On June 6 1956 Marshall and Sidney Diersscn purchased Parcel No 4 Estate Tabor & Hannony Nos 5 & 6 East End Quarter St Thomas Virgin Islands consisting of 110 58 undeveloped acres Mama Exhibit 1 (Map A 3 62 T45) Mast” Exhzbzt 7 SlreLbzch v Underwood 74 V I 492 (2021)

2 In February 1958 the Diersscm fi1ed subdivision plan FWD B9 31 T57( T57 ) with 19 lots consisting of Parcel No 4 18 through Parcel No 4 36 Master Exhlblt 2 Stietblc/l at 492

3 The Estate Tabor & Harmony subdivision has one main mad which branches off into three

3 Umicrwrmd & Sirykar v Stalin}! LI ((1 cm as 2024 VI Super 19 Cue Ne SI 1995 CV 00459 Memorandum Opinion

private road systems which were fully established in 1958 such that the Dierssens were

able to commence property sales The T57 map depicts each road as a private road

drawn with detailed metes and bnuuds Masterlxhtbtt 2

4 During the development of Parcel No 4, the Dierssens also designated a particular area as

the right at way as depleted on T57 (the T57 R O W ) which traversed and impacted

Parcel Nos 4 22 4 26 4 27 and 4 28 Parcel No 4 26 PareelNo 4 27 and Parcel No 4

28 cue abutting parcels on a hillside facing the Atlantic Ocean Parcel No 4 22 was

subdivided into 4 22A and 4 22B with the entrance off the main road being situated on

Parcel No 4 22B Parcel No 4 22B abuts Parcel No 4 25 which is adjoined to Parcel No

4 26 Mastcr Exhlblt 2 i Parcel No 4 22A

5 Parcel No 4 22 consisted of2 42 acres which was subdivided inn: Parcel No 4 22A 1 03 acres pursuant to FWD No F9 741 F61 (T61) and Parcel No 4 22B consisting of 1 00 awe puxsudnt to FWD No C0 47 T62 (T62) This division left a remainder of 39 acre Maxie; Exhibit 2 Master Exhibit 3 Master Exhzb1t4 6 On May 25 1961 the Dierssens registered FWD Ne F9 741 T61 which defined the parcel boundaries of 4 22A '1 W0 portions of the T57 R O W are incorporated within the boundaries at 4 22A (with one portion being totally enwmpdssed 1n 4-22A) as shown on Defendants Surveyor 5 map ovulay Master Exhibit 3 Maslcr Exhibit 46 ID 102 ((zuarllafl Survey Report) 7 On March 15, 1962 the Dierssens conveyed Parcel No 4 22A to Robert F Mcrwin Trustee for the Richard A Merwin Trust (Trust No l) Masts] Evhtblt 10 8 The deed as well as all other deeds from the Dicrssens contained restrictions and covenants, including the following language TOGETHER with all the appurtenances and all the cst1tc title tights and interest 01 the parties of the first part, their heirs and assigns, in and to said premises including a perpetual easement to the party of the second part his heirs and assigns, to run with the land over all roads in Parcel No 4 which

4 Undemtoad & blryker v YIruhzc/I, ct a! Cue us 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

are now in existence or Shall hereafter be Lunstructcd for ingress to and egress fi‘mn the Public Road or otherwise and subject to the following restrictions ’

(i) Easements and rights of way are hereby expressly reserved tor the creation, construction and maintenance of utilities, such as gas, water, telephone telegraph, electricity storm drains and land drains public private and quasi puhiic as well as for any public private or quasi public utility or function deemed necessary aud/or expedient by the parties of the first part for the public health and welfare Such easements and rights of way shall be confined to the rear five (5) feet ofevery lot and five (5) feet along the side of every building plot and along every street of the subdivision The parties of the first part hereby reserve the exclusive right to dedicate the roads, street: and avenues abutting the aforesaid property and running through Parcel No 4 to public use;"

(i) The common roadways shall be constructed by and at the cost and expense of the Parties orthe first Part in a proper manner with adequate ditches, drains and culvelts to provide proper drainage Thereafter the parties of the first pan the party of the second part and 111 subsequent purchasers of Parcel No 4 Estate Tabor and Harmony shall maintain the road upon which their property abuts in Parcel No 4 in reasonably good condition on a pro rate expense basis according to the acreage of the sub divided residential parcels abutting on said mad, until such time as the Government accepts a dedication of said road ”

(k) The eovenants restrictions easements, and rights nf way set foxth above shall be included in all subsequent deeds of subdivision of Parcel No 4 Estate Tabor & Harmony

9 On July 3 2007 Richard A Merwin (successor trustee) individually and the Richard A Merwin Trust (Trust No 1) transferred Parcel No 4 22A to Bruce W Streibich Eli/abeth B Streibich, and John K Streibieh Maxim Exh1b1t29 10 On October 26 201 1 Bruce W Streibich Elizabeth B Streibich and John K Streibieh cunvcyed Parcel No 4 22A to Bruce W Stteibich Master Exhzbzt 31 1 1 T61 depicts the T57 R O W as an estate road that follows a similar path including the second switchbaek as shown an T57 Master Exhibit 3 ii Parcel No 4 2213

12 On August 29 1962 the Dierssens registered PWD N0 C9 47 T62( T62 ) which

5 Urza'Lrwoml & S'lrykcr v SIrLtlm/I Ll Ill Cm as 2024 V1 Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

created and defined parcel buundarics 01 4 228 Masler Exhzbzt 4 13 On November 9, 1962, the Dicrsscns conveyed Parcel No 4 228, l 00 acre,

pursuant to T62 (not including the R O W ) to Fhomas 0 Cook and Nancy 1-! Cook The deed specifically states [t]he whole compn'sing an area of1 0 U S Acre not including the fight of way Mas!" Exhtblt 12 14 On June 9 1964 the Cooks nonveyed Parcel No 4 228 by warranty deed to Arthur E Schmauder and Violet Schmauder M(lAlLr Exhlbxt 14 15 On July 26 1985 Violet E Schmauder conveyed Parcel No 4 22B to the Violet E SLhmaudcr Trust by quitclaim dead 2 Master Exhzbzt IR 16 On August 20 2007 Arthur R Schmauder Trustee of the Violet E Schmauder Trust conveyed Parcel No 4 228 by fiduciary deed to the Schmauder beneficiaries and a limited liability company Verna C Ruan Arthur R Schmaudcr Elizabeth A McGuire (Trust Beneficiaries) and Blue Wake“ Retreat LLC Master I xhlbtt 3(I 17 Blue Waters Retreat LLC consists ofa building that sits upon Parcel No 4 228 Aprrl 5 2023 Trans pp 6 8 18 T62 depicts the T57 R O W as the ‘ Secondary Estate Road and represents a similar path of the T57 R O W Master Exhllnt 4 19 The deeds for Parce1 No 4 22A (incorporating T61) and Parcel No 4 228 (incorporating T62) did not expressly reference T57 because T61 and T62 depicted the metes and bounds only for the purpose ofthc subdivided Parcel No 4 22 However T62 implicated T57 by the notation not including the R O W shown as the secondary estate mad The only R O W in existence in 1962 was the T57 R O W 20 T61 depicted an area designated as Estate Road extending from Parce1No 4 228 through Parcel No 4 26 across Parcel No 4 27 and ending at Parcel No 4 28 21 T62 depicted the same area as Secondary Estate Road extending from Parcel No 4 228 through Parcel No 4 26 across Parcel No 4 27 and ending at Parcel No 4 28 22 The Dicrrsens executed both deeds with maps T61 and T62 that depicted similar but not

1 The record is silent a: to what transpired between 1964 and 1985 as lhere i: no evidence 01's lramfcr from Arthur E Schmauder and Violet SLhmauder Io Violet E Schmauder

6 Underwoozldi Stalker v Slrerhzch, c111] cm as 2024 V1 Super 19 Case No ST 1995 CV 00459 M cmurandum Opinion

exact paths to the T57 R O W d5 it was the Dierssens intentions to grant access to Parcel Nos 4 22A 4 26 4 27 and 4 28 Withuut the T57 easement Parcel No 4 22A would have been landlocked 23 Therefore the T61 and T62 maps are relevant only to depict the sub division ofPareel No 4 22 iii Parcel No 4 25

24 On March 2| 1958 the Dicrssens conveyed Parcel No 4 25 consisting of] 31 acres to Robert Mesa by warranty deed, and incorporated by reference T57 Mama Exhzbtt 8 25 On May 23 1974 Verna C Ruan purchased Parcel No 4 25 3 26 Arthur R Schlnauder and Eli7abeth A McGuire inherited Parcel N0 4 25 from an Adjudication dated January 24 2017 OFthe Esmu 9f Verna Clark Rum; S F 2016 PB 00069

27 Ofpanicular note, Parcel No 4 25 is not affected by the T57 easement as it shares a point, not a boundary line in common with T57 Unlike the other parcels there is no overlapping o: eneroachmcnt 01 T57 over Parcel No 4 25, therefore no rights of the property owners axe affected Sac Master Exhzbzt 46 ID 101 to 1D [04 iv Parcel No 4 26

28 On November 9 1962 the Dicrssens conveyed Parcc1 N0 4 26, by warranty deed, conaiating of l 14 acres to Noman Brilliant and June Brilliant (the Bfilliants) and incorporated by reference map T57 Master Exhibit 11 29 On August 15 1969 the Brilliants Lonvcyed by wan‘anty deed Paree1 N0 4 26 to Sylvia B Weaver (Weaver), and incorporated by reference map T57 Master Exhllnt 15 30 On August 6, 1981 Weaver conveyed by warranty deed Parcel No 4 2610 Brentcm E Battles and Susan Luge Battles (the Battles) This deed provided Inter aha, the following

3 Verna C Ruan died on June 23 2015 and her estate Was admitted to probate on November 7 2016 Probate court Iccords renew that

7 UndLmoac/& Stryker v Strubmh Ltd] CITE us 2024 VI Super 19 Case No S'I 1995 CV 00459 M emorandum Opinion

language

SUBJECT HOWEVER to the covenants restrictions, easements rights of way and agreements set forth in or attached to a deed dated November 9 1962 from Marshall B Dierssen to Neiman Brilliant and June Brilliant recorded November 9 1962 in volume 6 L page 162 N0 3059 in said office and to the easements and rights at way or shown on said Drawing No B9 31 T57 Master Exhzblt 16

'11 Afier purchasing Parcel No 4 26 the Battles construnted the house in the 19805 that presently sits on the piopeny afler registering the building plans with the Virgin Islands Department of Planning, and Natural Resources Defendam s Lxhlbzt 1 (butldmg plans) Aprll 5 2023 Trims pp 24 27 32 The Battles used the T57 easement across Parcel Nos 4 22B and 4 22A to access their property to construct the home that now exists and did so comistently during their ownership of Parcel No 4 26 33 On August 17 1989 the Battles sold Parcel No 4 26 to Bruce and Katharine Streibich ‘ which deed incorporated by reference D9 4345 1 88 Master Exhzbzl 2] April 5 2023 Trans pp 24 25 34 The surveyor 5 report containing the boundary description on T88 provides the following xeference [h]earings are correlated with FWD N0 B9 31 T57 Master Exhszt 21 35 T88 depicts a wrridor marked by dotted lines (as opposed to estate roads which are drawn with solid hum) labeled as 20 easement to Parcels 4 27 and 4 28 and with the notations that din road is within this easement and exit to public road bee [T57] Snelbtch 74 V I 493 494 (2021) Mama Exhibit 5 36 The marked corridor is in a slightly dittcrent location from the R O W depicted on T57 Slnzblch 74 V I at 494 Master Exhibit 2 Mast” Exhlblt 5 37 Although the 1989 conveyance incorporated T88 all piior conveyances were subject to the easements of record through the Chain 01 title odercel No 4 26 and specifically

‘ At the time of filing Ihe laWSult in 1995 Bmce and Katharine Slreibieh were the owners ufPaicul No 4 26 but since then Katharine passed away on I cbruary 28 1999

8 Underwood & Strykcr v Struhtch er a1 Cm as 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

referenced T57 Streibich s T88 map boundary description survey also specifically referenced T57 therefore, Streibich was on record notice of the T57 20ft wide easement 38 Every purchaser or grantee of Parcel No 4 26 the Brilliants Weaver the Battles and the Streibichs all had record notice that Parcel No 4 26 was subject to the right of way as shown and described on T57 39 Throughout the Battles use and the Streihichs subsequent use of the same easement across Parcel Nos 4 223 And 4 22A Streibich utilized the same implied easement and continues to do so to this day Neither the Battles nor the Streibichs needed permission from the property owners 0t Parcel Nos 4 22A or 4 22B to use the easement

v Parcel No 4 27

40 Sidney C Diersscn died on June 29 1965 Two and a halfyears later Marshall B Dicrssen died on January 18 1968 5 41 On March 30 1990 Macdonald Budd Administrator d b n c I a 6 ofthc Estate q/Manhall B I)zerssen and the Estate q/Stdney C Drawer! appointed by the Probate Court of Farmington, Connecticut, executed an Administrator’s Deed whieh conveyed Parcel No 4 27 consisting of 1 15 acres incorporating by reterence T57, to Susan Laura Luge The Administrator 5 Deed provided, mter aim the fallowing language TOGETHER WITH all right title and interest of Grantur to use ofthe estate roads and lights of way shown 0fthe aforesaid survey for access for ingress and egress”

SUBJECT HOWEVER to easements restrictions covenants and agreements of record ” Marta I xhzbzt 22

5 As it pertains to Parcel No 4 27 the record is silent as to my activity during the 22 year period between 1968 and 1990 ‘5 Adminmrator d [7 n L 1 :1 refer: to de bums non, (um leslumemo ammo When an administrator is appointed to succeed another who has 160 the estate partially unsettled he is said to be granted administration d2 hams mm that is oflhe gawk not already adminiflered Black 5 Law Dictionary (2“d Ed ) hugs //thelawdictionng org/ Cum Immmemv annex) is defined as with the will annexed A term applied to fldmlniSIl’aliOfl granted where a lestatnr make: an incomplete will, without naming any executors, or where he names incapable peraons, or where the exeeutura named refuse Io act 13139163 Law Dictionary (2”I Ed ), him: //thelawdittionag orchum testamenlo annexe l

9 Underwood & S‘lIy/tcr v Strum]: (.111, Cm as 2024 V1 Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

42 On Scptcmbet 16 1992 Susan Laura Lugo LOnVCyCd by quitclaim deed Parcel No 4 27 to

Susan Laura Luge (Luge) and George H T Dudley (Dudley) and incorporated by

reference FWD No D9 4961 T90 Marta Exhlblt 23

43 On January 23 1994 Lugn and Dudley conveyed by warranty deed Parcel No 4 27 to

Karen Renee Underwood incorporating by reference FWD No D9 4961 T90, which

deed states in pertinent part TOGETHER W11 H all appurtenances thereumo belonging and all the estate, title, and rights ofthe Grantors in and to said premises;"

‘ SUBJECT, HOWEVER to the covenants rcsttictions and easements of record Master Exhzbzr 24

44 The warranty dead from I ugo and Dudley to Underwood expressly conveys a11right title and interest nfGIantor to use 0fthe estate roads and rights of way shown on the atoresdid survey for ingress and egress This conveys any right or interest that already benefits the property; it does not create a new one Stretblch 74 V l 504 fn 10

45 FWD T90 depicts a 203 wide ‘casement to public road that runs across both Panel No 4

26 and Parcel No 4 27 and terminates at the boundary of Parcel No 4 28 A surveyor s

notation at the top left comer 0fthe 20fl wide easement on T90 states see B9 "5 l T57

Thele is also an arrow pointing to the approximate location ufthc 20h wide easement

toward; Parcel No 4 28 This further supports the Plaintiffs contention that the Dicrsaens

intended to create an easement over Parcel No 4 26 to allow Underwood to freely

travelse the T57 casement Master Exhszl 6

46 Hence, the Diersscns‘ rights, title, and interest in the easement were t1 ansfet red to

Underwood when she acquired the property and Underwood had record notice that Parcel

No 4 27 was subject to the right of way shown and described on T90

47 On June 30 2016 Karen Renee Underwood conveyed by quitclaim deed Parcel No 4 27

10 Und£m00l1& Szrykcr v Slrclbxch a u! Cm as 2024 VI Super 19 (Ase No SI 1995 LV 00459 Memorandum Opinion

to her son, Charles Anthony delanek III and incorporated by reference T90 Master

Exhzbzl 32

48 Although the 1992 1994 and 2016 deeds t0 Parcel 4 27 did not directly reference T57 the

1990 Administrator 3 Deed did and with the notations on T90 referencing T57 Underwond

had record notice of the easement across Panel Nos 4 26 and 4 27

vi Parcel No 4 28

49 On April 23 1963 the Dicrsscns conveyed Parcel No 4 28 Lonsisting of] 08 acres to George and Jean Vander May by warranty deed Mmter ['Xhlblt 13 50 On January 6 1987 the Vander Mays conveyed Parcel No 4 28 by warranty deed to Noreen Fretz and incorporated T57 by rctcrence Master Exh1b1220 51 On March 30 2001 Noreen Fret: a/k/a Noreen McCarthy conveyed Parcel No 4 28 to Warren Stryker and Margaret Strykcr and incorporated T57 by reterence Master Exhxbzt 25 52 A11 conveyances from 1963 to present incorporated T57 by reference Therefore, the Strkycrs have been placed on record notice ofthc casement across Parcel Nos 4 26 and 4 27 terminating at the boundary perimeter 01 their pmperty, Parcel No 4 28

3 Procedural History

53 On June 20 1995 Karen Underwood filed suit in the Superior Coun [ofthe Virgin Islands]

requesting that the court declare that she had an easement over the alleged dirt road over

Parcel No 4 26 Vargficd Comp] (Jum 20 [995) Stretbtcll at 494 54 Underwood Hated four causes ofaction that she claimed she is entitled to (1) an express easement, (2) an easement by prescription (3) an easement by estoppcl and (4) an easement by implication Comp! pp 6 7

55 In her count asserting rights to an easement by implication Underwood argued that she

has acquhed a nght to use the existing [dirt road] by implication based upon the references in

ll U71dLrwnod& AlrykLrv Strains}! Ll a! Cm as 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

the deeds t0 [T57] showing a road and based upon the public policy ofavoiding the

economic waste that would occur ifshe were required to create a road in exact conformance

with that depicted on [T57] rather than using the road currently in existence ’ Lomplamt

part: 22 23 Strelbzch 74 VI at 509 56 Streibich filed an Answer on August 18, 1995 followed by several motions over a period at

time Strublch at 494 57 On May 14 2002 Warren and Margaret Strykcr owners ofParcel No 4 28 moved to intervene in this matter and adopted all pleadings and allegations filed by Underwuud [ntartcmng Camp! (May 14 2002) Strelbtch 74 V1 at 494 95 58 The Strykers’ motion to intervene was granted and by incorporating Undciwood s allegations, the Strykas asserted a claim to the same easement and further presented the tollowing six causes ofaction (1) an injunction prohibiting Streibich from preventing their use of the easement (2) trespass (3) nuisance (4) slander oftitlc (5) interference with a contractual relation, and (6) interference with prnspective wntractual relations Complaint m Inlcrthton pp 3 5 59 [n the memorandum opinion filed on February 25 2019, the Superior Court ruled on a motion for summary Judgment in favor of Plaintiff Underwood preventing Defendant Strcibich from blocking Underwood s acuess across the existing dirt road The Superior Court held an implied casement exists over Parcel No 4 2b, to the benefit ofthe owners at

Parcel Nos 4 27 and 4 28 60 On appeal the Supreme Conn of the Virgin Islands found that only two (2) express easements were created by the deed language (i) a utilities easement over the rear portion of each parcel and (ii) a roads easement held by all subdivision property owners to traverse the roads in Estate labor 84 Hannnny that had been constructed by the Dierssens Strelblch 74 V I at 502

61 The Supreme Court held there is no express easement over Parcel No 4 26 and affirmed the trial court S ruling that there is an implied easement over Parcel No 4 26

62 An implied easement exists when the gramme intended to create a servitude but neglected to

12 Um/Lrwvml & S‘Iryker v Slrubzch a (ll Cite as 2024 VI Super 19 C1se No ST 1995 CV 00459 Memorandum Opinion

do so expressly Strubzch 74 V I at 504

()3 An implied easement was created by reference to the maps that were incorporated into the

deeds 64 Plaintiffs determined there was no further need to pursue their original claims for casement by necessity easement by prescription, or casement by estoppcl due to the Supreme Court 5 rulinfgy therefore abandoned those claims 65 On September 27 2022 the Strykcrx by stipulatmn, dismissed counts 2 6 trespass nuisance slander of title intericrcnce with a contractual relation, and interference with prospective contractual rclatinns 66 Intervcning Defendants Anhur Sehmauder Elizabeth McGuire and Blue Waters Realty LLC title holders of Parcel Nos 4 22B and 4 25 did not become parties to this lawsuit until March 7 2022 when the Court 3 order granting their renewed motion to intervene was entered on the docket 67 Intervening Defendants were initially denied intervention based on their incorrect theury that they have a legally protected interest in preventing the use of an easement beeause it would increase traffic flow 68 A bench trial was conducted from April 3 2023 April 5 2023 Order dated lanuary 26 2023 69 On April 4 2023 a site visit was conducted to view the affected properties ineluding Parcel Nos 4 22A and 4 223 To ensure a comprehensive understanding ofthe estate, a convoy consisting of court personnel and interested parties drove across all roadways starting fi'mn the main road onto all three (‘4) roadways of Estate Tabor & Harmony until all attendees mnverged at the entrance of 4 22B to begin the walk uphill and across the existing concrete pavement and dirt road until aITiving at Parcel No 4 28 70 Master Exhibits 1 32 36 37 42 44 were stipulated 10 by the parties for admission 71 Several other exhibits were also admitted into evidence at trial 72 Photographs were taken by 3 Superior Court marshal however due to camera malfunction the pictures were lost and the Cum granted all parties the option of uploading their pictures of the site visit in a photo log

13 UmILr'waod& Slrykcr v S‘iruhlch, Lt ((1 C116 :15 2024 VI Super 19 Case No S] 1995 CV 00459 Memorandum Opinion

C Estate Tabor & Harmony Subdivision

73 There is one main road that leads from the entrance of the subdivision by two (2) stone pillars and continues down to the bottom of the hill with other private roads branching off into difi‘etent directions ”Phi: road is the only one by which people can access the Estate Tabor & Harmony subdivision (the “main maid")7 Master bxhlbll 2

74 T57 shows three roads, laheled as private road and drawn with detailed metes and

bounds ’ Master Exhibit 2 Strelblch 74 V I 31492 75 The private road that branches off to the right forms the lower parcel boundary of Parcel Nos 4 26 4 27, and 4 28 (the lower road ) and ends in a turnaround ’( the lower road turnaround") at Parcel No 4 29 Master Exhibit 2 76 T57 also shows a marked passage rctcrred to as R O W which has no metes or bounds or other descriptors Mast” Exhibit 2 Stretbtch 74 V I at 492 See also April 4 2023 Trans pp 60 62 (Wzsehart Indicating lOCtlllDfl ofsouthcm boundary and confirming T57 R 0 W straddles boundary belweuz Parcel Nos 4 22A and 4 26) 77 The area designated as the right 0 f way 0 n F5 7 begins by branching oft from the m aim r cad appioximately 75 feet from the nonthwest comer of the area designated Parcel 4 22 in T57 and [trisects] that area then it continues along the boundary line between the area designated Parcel 4 22 ’ and Parcel 4 26 (approximately half in each), then through PdrcelNo 4 26 into Parcel No 4 27 [terminating at Parcel No 4 28] Masai Exhibit 46 ID 000094 {(Jeographlc Background) Mavter Fxhlblt 4 (T62 Map showing the [61/T62 4 22A and 4 228 access as being from [he Mam Estate Road ) Master [xhlbzt 48 p 2 para 1 (Parcel 4 22 Mm not subdlwded until [961)

78 T57 establishes that the R O W is separate from the system of estate roads and rather than

form the boundaries of parcels it burdens individual parcels Strezbzch 74 V I 503 79 The alleged dirt road is not located within the R O W shown on 157 Strezbtch 74 V I

7 The main private road is not a formal label There are no formal labels for the road: in Estate Tabor & Harmony See Gauriloffs surveyor 5 report (Mum r E) 46 ID 0001143;

14 Underwood& StrykLrv Strum}: (Ia! (.HL as 2024 VI Supra 19 Case No ST 1995 CV 0045‘) Memorandum Opinion

at 508 5a also Master Exhtbzr 46 (Dej/eme expert) photos I 7 reflecting R 0 W ts going uphill along botmdmy April 4 2023 Trans pp 60 66 (Plaintiffs eaperl testimony Lan/irmmg that the sue Visit party was standing (on the dirt path) aumde 0f the T57 R 0 W [Vans pp 70 7I (Betcha) expert also indicating [ha R 0 W straddling boundary between ParcclNo 4 22A and Parcel No 4 26) pp 75 78 (Indicating T57]? 0 W m bruAh uphill/ram dlrt road m Parcel 4 26 up to the 4 27 boundary) pp 79 8] (Plaintiff: surveyor teslt/ymg T57 R O W m brush uphtllfmm dirt road In 4 26 up to [he 4 27 bmmdmy) pp [57 59(P1amltfls cxpcrt Lanfxrmmg [57R 0 W IS 710/ thc flat cleared dlrt mad) Aprtl 4 2023 Tram p [68 (Defense surveyor confirming the hghl blue murkmg on survcvm' cxhzblt IS dm‘ road m compzmsan to I57 R 0 W) p 180 (DQ/LIISE surveyar confirmed blue marking (m [D 000/ 03 ZS dirt road) 80 The Dierssens deeds created two (2) express easements one general but confined to the rear five (5) feet ofcvcry plot and five (5) feet along the Side ofevery building plot and along every street ofthe subdivision, and one over ‘all roads in Panel No 4 which are now in existence or shall hercaficr be constructed for ingress and egress {Tom the Public Road 01 otherwise Strezbzch 74 V I at 502 81 A11 deeds transferred from the Diersscns contained the folluwing language with the exception ofthe deeds to Parcel Nos 4 22A and 4 22B which did not expressly refer to T57 as mote fully shown on [T57], a copy at which is hereto annexed and made a pan hereof as though more ful1y set forth herein

TOGETHER with all the appurtenances and all the estate title rights and interest of the parties of the first part [the Dierssens] their heirs and assigns in and to said premises including a perpetual casement to the parties of the second part [the Grantees] their heirs and assigns, to run with the land (we; all roads in Parcel No 4 which are now in existence or shall hereafter be constructed for ingress and egress from the Public Road or otherwise, and subject to the following iestrictions

(i) Easements and rights of way are hereby expressly reserved for the creation, construction and maintenance of utilities, such as gas, water, telephone telegraph electricity swim drains and land drains public

15 Underwood & Strykcr v S'mrbzch a (ll Cite as 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

quasi public and private as well as for any public private or quasi public utility or function deemed netessary and/er expedient by the parties of the first part tor the public health and welfare Such easements and rights of way shall be confined to the rear five feet 0t every parcel and five feet along the side of every building parcel and along every street of the subdivision

0) The Lommon roadways shall be constructed by and at the cost and expense of the Parties of the first Pm in a proper manner with adequate ditches drains and culverts to provide proper drainage Thereafter the patties of the first part, the parties of the second part, and all suhsequent purchasers of Panel No 4 Estate Tabor and Harmony shall maintain the mad upon which their property abuts in Parcel 4 in reasonably good condition on a pro rata expense basis, according to the acreage of the sub divided residential panels abutting on said mad until such time as the Government accepts a dedication at said road ’

82 ‘ Further the deeds expressly reserved the title to and burden ufbuildiug roads to the Dierssens but they did not reserve any rights in the R O W Finally while the “roads“ term the bounds between parcels, the R O W instead burdens individual parcels The express easement over roads therefore does not apply to the R O W Stretbzch 74 V I at 503 83 The area designated as Parcel No 4 22 on T57 includes the listed acreage as 2 42 U S acres After the subdivision, portions of the T57 R O W that represent the remainder of 39 acre are scattered in several areas along the route of the T57 R O W over Parcel Nos 4 22A and 4 22B 84 Each map T61 and T62 defined the boundaries depicted thereon for Parcel No 4 22A and 4 22B respectively 85 On T61 the T57R O W is labelled Estate Road and on T62 it is labelled Seeundary Estate Road Mada Exhlbzt 3 Master EXhlbll 4 April 4 2023 [runs p 30 (mdzcatmg 4 228 boundary IS also the secondary estrus mud boundary) Trans pp 1 69 70 (Defendantv expert cargflrmmg [61 and T62 definedpnrul boundaries ) (Defendants expert Lonfirmmg T6] and I 62 generally are close 20 the location 0/ the right of way but not pram“ because a Lompas: a ruler and a scale were um! ta EstabIKh boundaries)

16 Urldcrwand (Q .5101ch v blruhxch, cull Cue as 2024 VI Super 19 Case No SI 1995 (/V 00459 Memorandum Opinion

86 The first deed for Parcel No 4 22A defines the boundaries of the parcel by reference to the

southern boundary of the T61 ‘ Estate Road within the remainder of the area designated Panel No 4 22 in T57 remaining in the Dicrssens name Maler Exhzbzt 46 p 3 Geographic BaLkground (Defemc expert report p 3)

87 The first deed for Parcel 4 22B defines the boundaries of the parcel in part, by reference to

T62 Secondary Estate Road ’ with the lower southwestern boundary of Parcel No 4 22B

defined by the northern boundary 01 the lower portion of the ’I 62 Sewnddry Estate Road

with the remainder of the area designated Parcel 4 22 ’ in T57 remaining in the Dierssens

name Mann I xhlbxt 46 p 3 ngmphlc Background (Defense expert [apart p 3)

88 Despite the northern boundaries at T61 andT62 not matching and the southern boundaries

efTél and T62 not matching both toads follow a similar pdth t0 the T57 R O W including

the bwitehbaeks depicted on both maps

89 Two portions of the T57 R O W were incorporated into Parcel No 4 22A as shown in

both Plaintiffs surveyor 3 report and Defendants surveyors map Two portions 0t T57

R O W were fulty incorporated into Parcel No 4 228 Master Exhlblt 48 p 2 (estate road

partly supplant: R 0 W wt/hm Parcel No 4 22) Master Exlublt 46 (surveyor overlays II)

10/ [a II) 104) Mama Exlzzhzt 4 Aprll4 2023 Tram pp [18 19 (Plamtzjfa expert

aLkr/awledgmg T571? 0 W Incorporated mm 4 22A partlally) pp [63 164 (Defendants

expert explaining calms on surveyor overlays ll) 10] ID 104 am] what [hose maps

depict) Master Exhibit 3 Maxim Exhzhzt 46 (GaurtloffReport) Trans p 132 (Plamlzf/s

expert testgfi/zng that T6] and [62 defmeparce/ boundaries) Strzebrch 74 VI affix 15

(zmpllcatwn ofan emcmmr baxed art a map)

D Expert Witnesses 90 Plaintifis expert Ryan Wisehart ofBridn Muselcy& Associates Inc was qualified as an expert in land surveying Master Exhzbtt 48 (ndacted verston dclctmg last 2 para

l7 Underwoozld’c StrykLr v Strezbzch, a a! CIR. as 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

graphs ofexert report) Aprtl4 2023 [runs [7 7 pp 102 03 (testifying t0 quaIg/lcalmm) 8 9] Defendants expert Harry Gaufiloff ofMarvin Beating & Assnciates wag qualified as an expert in land surveying Minter Exhibit 46 April 4 2023 Trans p 7 9 92 Detenddnts’ expert Paul Ferreras was qualified as an engineering expert and provided deposition testimony on engineering evaluation, cost, economic feasibility, and environmental impact of constructing a road for vehicular acccfis on the T57 R O W to Parcel Nos 4 27 and 4 28 in compliance with Virgin Islands Department at Public Works construction requirements and other zoning laws Master Exhibit 47 Master Exhibit 65 93 At the site visit teatimony was taken sequentially starting with the Defendants expert Each expert identified his respective flag markings as everyone traversed the concrete pavement and dirt road leading frum the intei section of the main road and the entrance ofPareel N0 4 228 to Parcel No 4 28

94 Plaintiffs expert used lime yellow flags to mark the boundary points ofthe T57 R O W as well as various points at which the T57 R O W intersected with the boundaries of Parcel Nos 4 22A 4 25 4 26 4 27 and 4 28 April 4 2023 Tram p 40 4] 95 Defendants expert placed pink flags to mark the boundary points of the T57 R O W as well as various points at which the T57 R O W intersected with the boundaries of Parcel Nos 4 22B 4 22A 4 26 and 4 27 April 4 2023 Trans p 9 96 A combination nt maps, deeds, bound post overlays (graphic reproductions), surveying instruments and science were used to establish the loeatiun and scope ot the T57 R 0 W

97 Defendants expert testified to his placement of flags from the entrance of the T57R O W

identifying both the northern and southern boundaries of the T57 R O W in relation to

PareelNo 4 228

“ Plaintiffs other proffered experts were nor pennitlcd I0 teslity as their Icsllmonlea were wholly irrelevant to the implied easement and neither were their repons considered Ste Stipulation dated March 27 2023 excluding Tyler Edwards and Corby Parfitt and Order dated March 30 2023 9 Defendants other proffered expert was not permitted to testify for the same reason; and neither was her report considered S(F Order March 28 2023 (excluding, appmztel b/IYVI Runyon Stipulation dam! March 27 2023)

18 Underwood & Stalker v Strerlneh et al C116 as 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

98 '1 he parties traversed the paved concrete road uphill where additional testimony was taken

from the Defendants expert The entire Loneretc mad including the two switchbacks is

approximately 8 in width and Situated entirely within the Secondary Estate Road as depicted

on T62 (Defendams expert surveyor averlm/ Master Exhzhlt 46 ID 102 & II) 104)

99 Defendants expat identified the inner and outer boundaries of the T57 R O W and those of

the T61 Estate Road and T62 Secondary Estate Road Aprzl 4 2023 Tram p 9

100 Defendants expert testified and demonstrated on his survey map that a portion of the dirt

rOdd is located within the R O W shown on T57 ’ Master Exhibit 46 [D 103 (iurieyor s

overlay With blue path dexctmg first pormm of dirt road wz/hm the T57 casement

smzdd/mg the boundary line ofappmxzmcttely the/irsz half (2/ Parcel No 4 26 The dirt

rand continuing Inward (east) upon Parcel No 4 26 veering outside 0/ the easemem arid the

I 5 7 easement t1 ackmg upht/l (Surveyor 5 exhibit photos 2 1 t0 2 7 depleting R 0 W

gamg uphill along baundmy 0f4 22A and4 26) Aprtl4 2023 Iran: pp 60 66 pp 80 8/

(confirming that the site 1/131! party was standmg outside the R 0 W) pp 70 71 (Defense

expert mdzcatng 0 W snaddlmg boundaty) pp 75 78 (mdzcatmg [57R 0 W

[S m brush uphill/ram dtrtload m 4 26 up to the 4 27 boundary both expat) agree on

wzdlh and distance 0/ T57R 0 W m 1hatarea) pp 79 8/ (Plamnfls surveyor festt/ymg

T57 R 0 W IS in brush uphillfrom dlrt road In Peru] N0 4 26 up to the 4 27 boundary)

101 Defense surveyor Lonfiiming the light blue marking on surveyor 5 exhibit is the dirt road of which approximately half is located within the 157 R O W and the other half is located within the boundary line of Farce! N0 4 26 Aprtl 4 2023 [runs p 180 102 Defense surveyor confinned blue marking on MasterExhibit 46,1D 103 is dirt road May16 2023 Photo Lag Phato 2 3 (shawmgjuxtapasltzon of dirt road and T57 R 0 W wtlh the [5 7 R 0 W SI‘lOWll’Ig overgruwn brush and vegetutmn)

103 Defendants expert confirmed a portion ofthe T57 R O W is not the flat cleared dirt mad

l9 UmIermd & ?lrykcr v Strulmh, 61 (ll Cm as 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

April 4 2023 Tram p [68 104 Defense expert testified the concrete paved road ia generally 8 to 10 feet wide and wider at the switchbacks April 4 2023 Fran? p 168 The concrete paved mad is not within the T57 R O W but is within T61 and T62 estate roads Master Exhibit 46 ID 104 105 Plaintiffs expert sutveyor s markings and testimony began at the intersection of Parcels No 25lo and N0 4 26, an area identified as the Point ochginning on tho expat 5 Drawing No 3654 3 of the T57 R O W [06 Parcel No 4 25 lies between Parcel Nos 4 2213 and 4 26 107 The Parties survey experts varied their location 01 the shared 4 22A/4 25/4 26 bound post by approximatelytbul and onehalt feet (4 1/2 fl ) Apr114 2023 Trans pp i9 41 pp 48 49 p11 55 56 pp 176 78 (Defendants expert confirmingphmm (g/properly [ML between 4 26 and 4 22A (Muster bxhzbn 46 II) 14310 ID 150)) April 5 2023 Tram p 36 May 16 2023 Photo Log photo 2 21 (showmgpmk and/"ar left llmeyellowflagged marker? lfldlCthlng Iwundpoxt IULatxans) photo 2 20 (uphill mw q/pmk and [mm yellow flagv) photo 2 [8 (mde angle wow 0fmarkLrs) 108 Plaintifls expert testified there is approximately four and one half teet (4% ft ) difierencc between the southwest hound post anarcel No 4 26 that he marked and the bound post that Guarilofl marked April 4 2023 Trans pp 41 55 109 Plaintiffs expert left lime yellow flag facing the ocean represent: the southwest corner of Parcel No 4 26 which is also the shared bound post ofParccl No 4 25 110 Plaintiffs expert right lime yellow flag facing the onean represents the intersection of the northern boundary ofthc T57 R O W and the bouthcm boundary ofParcel N6 4 26 l 11 Plaintith expert testified [‘57 is south of the boundary line between Parcel No: 4 22A and 4 26, resting in 4 22A with the northern line testing in the driveway of Parcel No 4 26 April 4 2023 Trans pp 61 63 (8'0th [X uphill Into the brush) 1 12 Plaintiffs expert further testified he used lime yellow tape to delineate the outer limits of

“7 Although the Illlcwcnlng Delendants are also joint ownm of Panel No 4 25 the mlemcuon at the 1‘57 cascmenl and 4 25 repre

20 Underwood & élrykcr v Strulmh 61 u! cm as 2024 VI Super 19 Case N0 ST 1995 CV 00459 Memorandum Opinion

the T57 R O W on both the north and the south side however he did not extend the tape across the north houndary due to Streibich 8 home improvements (entrance ofsteps) that blocked his ability to set the tape from one point In the other April 4 2023 Tram p 5] 113 Detendants expert testified the T57 R O W passes through the bound post ofParcel Nos

4 228 4 25 and 4 26 April 4 2023 Trans [1 56

1 l4 Plaintiffs expert also testified the approximate distance between the T57 south boundary

and the north boundary line is twenty (20) feet wide April 4 2023 Tram p 64 The T57 R O W mosses over along the hill April 4 2023 Trans p 75 115 Plaintifls expert Diawing No 3654 3 ofT57 R O W depict: a 20fi wide easement across Parcel Nos 4 26 and 4 27 l 16 Plaintiffs expert and Defendants expert both agree generally, on the location and the seope 0fthe T57 R O W April 4 2023 Tram p 77

117 With the exception ofminor variations ofa few feet at the Point efthe Beginning 0fthe

T57 R O W upon Parcel No 4 26 the Parties survey experts did not ditter in their

10e1tion of the TS7R 0 W 1 18 In 2022, Streibieh renovated and repaired the entrance to his home on Parcel No 4 26, he

iesurfdeed his existing entry stairs and added a handrail to make the entrance safe and he redesigned the edges ot the stairs ta divert Water and avoid flooding Aprll 5 2023 Tram pp 46 5] (Defense EXhlbUS 2 and 3 photos) 119 The improvements to the steps are important only to the extent that the steps were already built in the TS7R O W but are irrelevant to these proceedings because the repairs and enhancements did not expand any further into the F57R O W April 5 2023 Trans pp 24 27 (admitting Def Ex I {buzldmgplam as recczvcdfrom the Battles» pp 27 3/ Mav 16 2023 Ph010L0g213 214 2 2] & 2 22

120 Engineering expert Paul Ferreras offered three alternative options for creating a road to access Panel Nos 4 27 and 4 28 Option 1 Use ot the existing dirt road, except such traffie would be detrimental to Parcel No 4 26 because it prevents any suitable roadway to be Constructed that would align with the dirt road and zoning laws and construction

21 Underwood & Stryker v SlMlblc/l Lta/ Cm as 2024 V1 Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

requirements Option 2 a joint driveway constructed on the lower road ta accommodate both panels; and Optlan 3 separate driveways eonstructcd 0n the lower mad 121 While these options may be more economically feasible than blasting the rock on the southern hillside within the T57 R O W , the engineering options are completely irrelevant to these proceedings became an implied easement exists on the T57 map E [‘he Parties

122 Defendants Blue Waters Realty LLC Anhur Schmaudei and Elizabeth McGuire : wishes to have minimal traffic flow, when weighed against the Plaintifts unfettered rights In continual and uninterrupted ingress and egress upon the T57edsemcnt, are irrelevant and inconsequential There is no evidenee to show construction of homes on Parcel Nos 4 27 and 4 28 will negatively impact the Defendants, besides normal road wear and tear and conatruction activity 123 The T57 map delineation oi the R O W is schematic yet sufficient to define its location Its beginning and ending are plainly illustrated without ambiguity the [servient] parcels are clearly labeled (Master Exhibit 48 p 2) 124 The 57 R O W pre existed the sale ofParccl No 4 22B in 1962 to Thomas 0 Cook and Nancy H Cook Therefore, the Cooks and all subsequent purchasers were on record notice that an easement tor ingress and egress existed across Parcel No 4 223 for the benefit of the inner parcels 125 The easement is depicted on 1‘62 as the Secondary Estate Road with specific notation that the property boundaries do not include the right of way This is evident of the Dierssena intent to create acne» to the other parcels 126 The 57 R O W pre existed the sale of Parcel No 4 22A in 1961 to Robelt Merwin Therefore, Ruben Mcrwin and all subsequent purchasers were on recon} notice that an easement for ingress and egress existed across Parcel No 4 22A for the benefit of Parcel Nos 4 27 and 4 28 127 The Court recognizes fragmented portions 0fthe easement were conveyed in fee simple by the Dierssens to the owners ofParccl Nos 4 22A and 4 223 by warranty deed 128 Yet although the subdivision creating 4 22A and 4 22B out of Parcel No 4 22 left

22 Underwoaddi Slrykcr v Strelbtth LI «1 Cm as 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

remaining portions in 4 22 such remainder did not cancel out the Dicrssens strong intent of Lredting access to the inner parcels 129 Further the Schmduders placement of gravel in an area 0t approximately 20ft square space to create their driveway is not indicative of the Dierssens intentional failure to complete an access road upon the right of way to Parcel No 4 28 [30 Dispmportionate and fragmented portions of the T57R O W were deeded away inadvertently but it remains evident that the Diensens intended to have a right of way by creating T61 and T62 maps with an estate read This estate read (secondary estate road right of way) is the only read that exists which leads to the upper portion of Parcels 4 26 4 27 and 4 28 I31 The term secondary also suggests this road was not intended to be part of the private road system with ditches and drains but to represent a right to pass over the land 0t others to access the inner parcels l32 l'he inadvertent conveyance is not a basis to conclude the entire F57R O W is merely a driveway tor the sole benefit of Parcel Nos 4 22A 4 22B and 4 26

133 The Dierssens did not intend to deed away parts ofthe T57R O W when conveying Parcel

Nos 4 22A and 4 228 because they explieitly incorporated by teferenee T61 and

T62 into the respective deeds to those parcels which created an estate road (and secondary

estate road) which suggests their intent was to grant aeoess to Plaintiffs to traverse the

T57R O W even though the three similar paths (T57 T61 andT62) are not identical by

coordinates 134 The Dierssens intent was to create aeeess to Parcel No 4 22A from the main mad failing which the lot would have been landlocked and by mere observation of the topography the most suitable way to gain aeeess to Parcel No 4 22A is through Panel No 4 ZZB 135 The most suitable way to gain access to Streibich a property and Blue Waters Retreat LLC is by way cf the same estate road through Parcel No 4 228 130 As such, the Court can similarly conclude the Dierssens intended to also provide access to Parcel Nos 4 27 and 4 28 particularly since the T57 map depicts a lengthy right of way

23 Underwvozlnfi Stryku v SlrLlhzch s10] Cm as 2024 VI Super 19 Cue No SI 1995 CV 0045‘) Memorandum Opinion

across all four Parcel Nos 4 22B 4 22A 4 26 and 4 27 137 The distance in length between the entrance from the main road to the Point of Beginning measures approximately 600 feet Maxter Exhlblts ? 4 138 The distance in length between the Point of Beginning to the wcstem boundary 01 Parcel No 4 28 measures 446 56 feet Plamttjfiv expert drawmg no 3654 3 139 Moreover the subdivision between Parcel Nos 4 22A and 4 22B into one acre lots is eonsistent with most of the other 17 one acre lots of Parcel 4 in 13:15:10 Tabor & Harmony Master bthtbtt 2 140 By defining the bounddlies ofPareel No 4 22A and Parcel No 4 22B including using the borders 01 T61 and T62 to define parcel boundaries T61 and ’l 62 effectively defined the boundaries of the Estate Road and the Secondary Estate Road 141 This unambiguously demonstrates the estate road was intended to provide accces to all five parcels 4 22A 4 22B 4 26 4 27 and 4 28 MastLr Exhlbtt 3 Master Exhtbzl 4 Mnytcrlxhlblt 10 Master EXhlbll 12 & Muster Lxhlbzt 46 (ID 103 106)

142 When the Department of Planning and Natural Resources (DPNR) issued the August 27,

2002 permit to Warren Strykcr to groom the easement and to spread gravel it was

intended to clear Parcel Nos 4 22A 4 26 and 4 27 as depicted on the pennit Master

Exhtbzt 42

143 Tu conclude the permit was limited to Parcel No 4 28, would he illogieal beeause the

casement terminated at the boundary of 4 28 and this would defeat the purpose of the

government issuing the permit

144 The reasoning that Plaintitts abandoned the implied easement is faulty as it is evident

Plaintitts attempted to use the right Of way on several occasions since 1994, but were

stopped by Deteudant Streibieh on more than one occasion No evidence was presented

to show either Underwood Kaplanek 111 or the Strykers abandoned their interest in the

Estate Road

24 Underwood & Stryker v Siretbzch, at a! Cm: as 2024 V1 Super 19 Case N0 S1 1995 CV 00459 Memorandum Opinion

145 On May 5 2003 Stieibich placed a nute on a vehicle threatening mun action ifthe owncr/operator 0f the vehicle on the premiecs did not move the vehicle Master Exhzbzt 45 K

146 Warren Stryker testified he had been blocked by Strcibich Trans Aprll 3 2023 pp 69

147 Further the reasoning that the predeeesaorb in interest ofParccl Nos 4 27 and 4 28 should have stopped Brenton and Susan Battles fmm consttutting the house on Parcel No 4 26 so close and within the easement i: also irrational as the predecessors had no control over what the Battlce or othe! property owners did with their property

148 Both expert surveyor: agree on the location of the implied easement as depicted on T57

which starts at the intersection of the main road and continues along the concrete paved

roadway that is currently in regular use by the Defendants and continues uphill beyond the

two switchbacks and along the hillside straddling the boundary lines of Parcel Nos 4

22A and 4 26 and across 4 27 149 [ntervenin;,y Defendants incorrectly claim there was a need to mention the T57 map in the 1962 transfer from the Dierssens t0 the Brilliants This theory is mispldted because the purpose of creating the T6lmap had no bearing on Parcel No 4 26 T61 s only purpose was to depiet the subdivision of 4 22 into two parcels The Estate Road as depicted on T61 is the same R O W on the T57 map although not identical with bearings and distances but with variations as shown by Defendants’ expert, therefore negligible uporddic portions ofT57 were inadvertently conveyed to the Mcrwin Trust in 1962 150 Further, the T62 notation to T57 was sufficient to put potential buyers on notice of the existing R O W Dire“ reference ofT57 in the 4 22A and 4 228 deeds did not need to be specifically mentioned in the subdivision ofParcel No 4 22 or any 0ft11e subsequent conveyances of Parcel Nos 4 22A and 4 2213 151 Intervening Detendants argument that there was an insufficient amount of time between the rccordation of Parcel Nos 4 22A and 4 26 on November 9 1962 to reveal the T57mdp in the title search is irrelevant

25 Undume & SIIy/(Lr v Strubich 81 (ll Cite as 2024 VI Super 1‘) Case No ST 1995 CV 00459 Memorandum Opinion

152 Intervening Defendants arguments failed in their entirety because even if they were allowed to intervene on their original motion, the Supreme Court’s decision wuuld remain the same because the purpose 0t creating T61 and T62 was limited in scope and had absolutely no impaet on the pro existing T57 map 153 Heme no property Owner needs permission from the owners of 4 22A 4 22B 4 25 or 4 26 to traverse the tight uf way because the Dierssens by their actions, intended to create vehicular access to the inner parcels 154 Defendants arguments fail to overcome the convincingly overwhelming evidence that the Dicrssens intended to grant a R O W to future buyers of Parcel Nos 4 26 4 27, and 4 28

CQNCLUSIONS OF LAW

A Jurisdiction and Venue 1 This court hasJurisdietion over this matter pursuant to Title 4 V I C § 76

2 The subject matter of the claims and defenses are claims relating to real property lying on

the island of St Thomas United States Virgin Islands 3 Venue is proper in thisjudicial district 4 The Plaintiffs filed complaints in this Court thus voluntarily appearing and waiving any objection to personal jurisdiution 5 Defendant Streibich was properly served and the Court has personal Jurisdiction 6 Intervening Defendants affirmatively sought to be made parties to this case thus waiving any ohjection(s) to personal jurisdiction 7 I'his Conn has peisonal and subject matterjurisdintion B Easement bx Implication Mag Reference Grantor’s Title and the Intended Scone 0f the T57 R O W

8 An implied easement exists when the grantors intended to create a servitude hut

neglected to do so expressly Slrezbzch v Underwood 74 V I 488 504 (V I 202!)

9 An implied easement was Lredted by reference to the maps that were incorporated into

the deeds

26 UndLrwaad & Slry/(u v StrLIbIc/z e! u] Cm as 2024 VI Super [9 Case No ST 1995 CV 00459 Memorandum Opinion

10 The rule expressed in Restatement (Third) 0t Property Servitudes § 2 13(2000) is the

soundest rule for the Viigin Islands Strum}; 74 V I at 506 (V I 2021)

l 1 Section 2 13 provided in pertinent part

In a conveyance or contract to convey an estate in land description of the land conveyed by reference to a map or boundary may imply the creation of a servitude, if the granmr has the power to cxeate the servitude and if a different intent is not expressed or implied by the circumstances (1) A deseription of land conveyed that refers to a plat or map showing streets, ways, parks, Open space, beaches, or other areas tor common use or benefit, implies creation of a servitude restricting use of the land shown on the map to the indicated uses (2) A description of the land conveyed that uses a street or other way, as a boundary implies that the conveyance includes an easement to use the street or other way Rum! 3d afProp Servztudes 3\ 2 [3 (2000) See (1/50 Stretbzch at 505

12 T57 creates an inference that the parties intended for there to be an easement, which any

other party may rebut by pointing to evidence 0f a contrary intent, with the strength of the

evidence needed to rebut the inference of an easement varying based on the strength of the

evidence particularly the explieimess at the map used to support the inference Id at

506 See also Brodhursti Framer 57 V 1 365 370 (VI 2012)

13 T57 explicitly states that there is a R O W and while the word easement does not appear

on T57 a ‘ right of way in 1957 was by legal definition an easement granting the holder

the right to pass through property owned by another 1d at 507

14 Right of way ‘ [t]he right ofpassage 0r ofway is a servitude imposed by law or by

convention, and by virtue of which one has a right to pass on foot, or homebaek, or in a

vehicle through the estate of another When this servitude results from the law the

exercise of it is confined to the wants 0fthe person who has it ” Black s Law Dictionary

(2 lLd)

27 Um/crwoodd’z Twyla!“ v Slrerlmh a (II Cue as 2024 VI Super 1‘) Case No ST 1995 CV 00459 Memmandum Opinion

15 Right 01 way in its strict meaning is the right ofpassage over another man 5 ground and in

its legal and generally accepted meaning it is a mere easement in the lands ofothers

Id

16 While there is no expressed R O W Agreement, the Dicrssens intended for there to be a

right of way by such depiction on the T57 map

17 The Supreme Court ofthe Virgin Islands recognized the R O W when it stated 1t]he

R O W appears to bisect Parcel No 4 22 then continue along the boundary line between

Parcel Nos 4 22A and 4 26 (approximately half in each parcel) and into Parcel No 4 27

Slrelblch at 492

1 8 The chain 01 title for the parcels and the maps dancnstmte the Dietssens intent was to include in the

scope of the merit vehicular access 19 Examination oi the three Public Works maps T57, T61, and T62 demonstrates that while all three maps depicting the right of way Are not prceisely consistent, by metes and bounds, it is indisputable that all three paths are similarly situated in the same area plus or minus a few feet within each other 20 The Estate Road depicted in F61 lies across Panel No 4 22B and 4 22A in a similar manner to the path of the Secondary Estate Road in T62 which, in turn they both follow the pattern 0fthe R O W in T57 including the two switchbaeks

21 The Dierssens explicitly designated an area as the Estate Road on T61 and Secondary

Estate Road on T62 T62 specifically lays out the acreage conveyed which does not

include the right of way (secondary estate mad) The original deeds 0f4 22A and 4 22B

conveyed by the Dierssens used the southern and lower southwestern boundaries of the

roads to define the respeetive portions of the parcel boundaries 22 This is also Lonfin‘ned by Defendants” surveying expert in his report depicting the color coded parcels and map uverlays showing the concrete paved road the existing dirt road and

28 Underwood & Stryker v SIILIhILIi L10] Cue as 2024 V1 Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

the T57 casement along with e010!” Loded overlays 0fthe T61 and T62 estate roads See Maxtcr I Ahlblt 46 1D [03 andID 104 23 This is also confirmed by Plaintiffs expert in his survey report and drawing scientifically calculating specific distances at the portion of the easement which starts at the Point of Beginning at Parcel No 4 26 on the [‘57 R O W and extends 446 56 icet in length to the boundary ofParcel N0 4 28 24 No use may be made 0121 right of way different from that established at the time ofits

creation so as to burden the scrvient estate to a greater extent than was contemplated

McIntosh v Prince 9V1 3 11 (V1 Super Ct 1971) Stretbuh at 509 fn 17 25 It is important to note that the R O W derived from the map and the use ofthe term right of way gives [the Plaintiff and lntervcning Plaintiffs] only the right to pass across the R O W and no more " Stretbzch, 74 V 1 at 509 fn 17 (citations omzltcd) 26 The T57R O W is only for ingress and egress of the ddjuining properties ofthe Plaintiffs 27 Defendants argument that the R O W was never used as a road or area for Vehicular

access except on one occasion when Underwood cleared away debris and bush has failed

to overcome the overwhelmingly strong evidence that tho Dierssens intended the T57

easement to serve as an access road to Parcel Nos 4 26 4 27 and 4 28

28 Intervening Defendants arguments that the area is full Ofbush and was never Lleared ale

equally unavailing because failure to clear bush is not an indicator of abandonment nor

does it signify the cxtinguishment ofa right

29 A servitude benefit is extinguished by abandonment when the beneficiary ielinquishes the rights treated by a servitude UndLmoadV Strezbmh 70 V 1 179 193 (V I Super Ct 2019) See Rena! 3d (2/ Prop Scrvztudes § 7 4 30 The prevailing rule still applies that an easement cannot be lost by mere non use thus in order to establish abandonment of such right the onus rests on the defendant to show both an intent to abandon as well as some overt act or failure to act which LlelES the implication that the ownel neither claims nor retains any interest in the easement Smtth v

29 Underwood & Slry/tu \ Stroll)th e! (ll Ute as 2024 V1 Super 19 Case No ST 1995 CV 0045‘) Memorandum Opinion

Defrutm 329 F 2d 629 634 (3d Cir 1964)

31 When a eenain path is the only or the main access to property or to some of its plots and the right of way is indicated on the maps the right of way even ifit is not registered may not be dislodged by later owners of the servient estate [d m 533

32 Abandoning an easement requires the evidence presented before the court to show that both

the non use and a showing that the [Plaintiff] has taken an affirmative step demonstrating a

clear intention never to make use of it again Simple neglect makes little sense given that no

ether property interest can be lost this way Malloy v Rcym 61 V I 163 178 (V l 2014) 33 Defendants have not offered any evidence of any overt act or failure to ant which would

suggest or imply any 0fthe Plaintifis failed to claim any interest in the implied easement or

that they failed to retain any interest in their easement

34 Unpaved roads are not uncommon in the Virgin Islands and the Supreme Court has noted

land in the Virgin Islands is scarce and restrictive covenant[s] will be strictly construed

against limitations on the free use ofland, with all doubts to be resolved in favor 0fthe

unfettered use ofland ” Strelbtch at 506 See (1150 Thomas v VI Board quand HAL

Appeals 60 v1 579 593 (VI 2014) 35 [Plaintiffs] me the holders nfan easement allowing them passage over the R O W as

depicted in T57 Strubzch at 508 509 36 Easement by prescription is defined in Restatement (Third) of Piepexty § 2 16 as

(1) a use that is adverse to the owner of the land or the interest in land against which the servitude is claimed or (2) a use that is made puisuant to the terms at an intended but imperfectly ex eated servitude or the enjoyment of the benefit of an intended but imperfectly created servitude

37 Easement by necessity is defined under § 2 15 which states A conveyance that would otherwise deprive the land conveyed to the grantee or land retained by the grantor of rights necessary to reasonable enjoyment uf the land implies the creation of a servitude granting 0r reserving such rights unless the language or circumstances of the conveyance clearly indicate that the parties

30 Umlcrwoml'd’z $”ka v Slrerbth, c! u! Cm as 2024 V1 Super 19 Case N0 31 1995 (,V 00459 Memerandum Opinion

intended to deprive the property of those rights Restat 3d of Prop S(rvztudcs § 2 15 (3rd 2000)

38 Plaintiffs properly abandoned their pursuit of easement by prescription and easement by necessity because both Llaimb are inapplicable as there is an implied easement over T57 map 39 Defendants improperly assert that ueuessity must still be addressed because it is probative ofthe Dierssens intent Fhis is incorrect because the Dierssena intent is abundantly evident when taking into consideration that all deeds except for the 1992 1994 and 2016 conveyances of Parcel No 4 27 incorporated T57 by reference The other exeeption is the 1989 conveyance of Parcel No 4 26 which referred to a 1988 map T88 however referred to the original T57 40 Defendants have not set iotth any evidence to rebut the Dierssens actions demonstrating their intent to create a right 0t way 41 All original conveyances from the Dierssens and many subsequent ennveyances incorporated T57 42 Even though the original and subsequent conveyanees 0f Parce1 N0 4 22A did not refer to T57 the Dierssens created an ect'ite road running along the same path ofthe T57 R O W As for Parcel No 4 2213 the original Dierssens deed expressly stated [tjhe whole Comprising an area of 1 0 U S Acre, nut including the fight of way ” The T62 map illustrates a eimilar annotation establishing the boundaries ofthe parcel ‘ not including the ROW

43 The Dierssens intent is unequivocal theiefore the need to establish an easement by neeessity is no longer relevant 44 Marshall Dierssen s estate WAS properly admitted in the Piobdte Court of Farmington

Connecticut on or about May 9 1968 On May 9, 1968 Judge W Spencer Hulburt issued

the following orders

ORDERED that the Administrator with the Will Annexed be and he is hereby authonzed and empowered (a sell the personal estate of said estate either at public auction or private sale, as he may deem for the interest 01 the

31 (/ndLm'nm] & Stryknr v Strains]: e! 11/ Cite as 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

estate

ORDERED that the Administrator with the Will Annexed make and file with this Court, an inventory under oath ofall 0f the property nfSaid deceased, duly apptaised, within two months from the date hercoi and that said Administrator with the Will Annexed exhibit his aeLount to this Court for allowance within twelve months From the date hereof And it is fimhcr ORDERED that disinterested persons be and they are hereby appointed appraisers at said estate

Further, Mandonald Budd, Administrator d b n c l a oi the I state ofMarshall IJIerxsen

was granted several interim account distributions during the LOUISE at this probate

including one on July 14, 1992, and issuing checks on the final account on January 20,

45 A will executed without the Virgin Islands in the mode preseribed by the law either ofthe

place where executed or of the (estate: 5 domicile Shall be deemed to be legally executed,

and shall be 0fthe same force and effect as ifexeeuted in the mode prescribed by the laws

01 the Virgin Islands provided such will is in writing and subscribed by the testator Title

15 V I C 55 15

46 Where real property situated within the Virgin Islands or an interest therein is devised or

made subject to a power of disposition by a will in writing, subscribed by the tcstator

duly executed in cnntormity with the laws ufthe Virgin Islands or ofthc place where

executed or of the testatur s domiLile and established or admitted to probate without

the Territory and filed or recoxded in the proper offiee as prescribed by the laws ot the

State or tmeign country where the will was established or probated a copy oi such will

or of the record thereof and of letters testamentary granted thereon authenticated as

prescribed in such section "46 0fthis title, may be retarded in the office ofthc recorder of

deeds in the judicial division in which such real property is situated, except that where it

32 Underwoozl& Stalker v 8‘1}?thch cl (1] C115 as 2024 V1 Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

zipped” that such will was executed without the Territory no copy of proofs ur the

teeurd thereof and no statement of the substance of such proofs 01 of the record thereof

shall be required; and such record in the uffice of the recorder of deeds or an exemplified

copy shall be presumptive evidence of such will and of the execution thereof and of the

letters testamentary granted hereon and of such petition for letters of administration and of

the letters ofadminietration granted thereon in any action or special proceeding relating

to such real propelty Ittle 15 VIC §35

47 Accordingly the Administrator (I b n c I a ofMarshall Dierssen a estate had legal authority

to convey Panel No 4 27 recorded in the probate tile and approved by the Probate Court

of Farmington, Connecticut

48 The Administrator 5 Deed conveyed to Susan Luge on March 30, 1990, is not a void deed

therefore, Susan Luge had the authority to convey Parcel No 4 27 to Katen Underwood

49 The Restatement ( Third) of Property Scrvitudes Created by Implication § 2 11 states that (a) “[t]he creation of a servitude burden may be implied by the Lireumstances surmunding the conveyance ofanother interest in land and (b) [t]he identity ofthe beneficiary may be implied by the facts or eircumstances of the transaction creating the servitude 50 Section 2 ll(e) further provides “eervitudes are implied 0n the basis ofthe infen'ed intent ofthe parties to the conveyance The inference may be based on language used in the conveyance, the object of the transaetion, a use at the property made prior to severance, the language used in referring to maps or boundaries, or restrictions imposed on the conveyed land I he inference may also arise tram the fact that, without a servitude, the land conveyed or retained by the grantor would be landlocked [he inference is based on the conclusion that under the circumstances it is reasonable to infer that the parties intended to create a servitude but failed to give full expression to their intent Karat 3d Q/l’mp Scnztmlts S‘ 2 [I (3r1l2000) 51 Section 2 13 provides “in a conveyance or contract to convey an estate in land, description of the land conveyed by reference to a map or boundary may imply the ereation at a servitude, ii the grantor has the power to create the servitude, and if a diftcrcnt intent is not

33 Underwood & StrykLr v Ytrerhzch L10] Lila as 2024 VI Super 19 Case No SI W95 CV 00459 Memorandum Opinion

expressed or implied by the circumstances (1) A description of the land conveyed that refers to a plat or map showing streets ways, parks, open space, beaches, or other areas for common use or benefit, implies creation of a servitude restricting use of the land shown on the map to the indicated uses

(2) A description ofthc land conveyed that uses a street or other way as a boundary implies that the conveyance includes an easement to use the street or other way (emphaizs added)

52 Finally, Section 2 14 further explains, “unless the facts or circumstances indicate a contrary intent, conveyance ofland pursuant to a general plan ofdevelopmeut implies creation of servitudes implied benefits that provides each lot included within the general plan is the implied beneficiary of all express and implied scrvitudes imposed to carry out the general plan

53 The Dierssens subdivided Parcel No 4 and constructed private roads with the intent to promptly generate property sales to recover costs T57 map was created to include an easement to support the general subdivision plan to ensure all property owners had easy access to their respective properties C Scoge 0fthe Imglied Easement

54 The most common type ofimplicd casement (also referred to as an easement by

implication) is an easement that is implied based on past use Strezbich 74 V l 504

However due to no past use here it is necessary to consider an easement implied by an

indication on a map that is incorporated into the deed 55 [T]he scope nfan casement is what its holder may do with it the purposes for which it may be used McBLIrney v Paqum 28 A 3d 272 277 (Conn 2011) (citations omitted)

56 “Typically, to discern the scope ofan easement, ‘the deeds, maps, and recorded instruments

that created the easement must be considered in 1i ght of the surrounding circumstances to

determine its nature and extent Mcls‘umey at 277

57 When construing the scope of an easement a map clearly designating an area as devoted

to a particular use creates a strong inference that a servitude will be created to implement

34 Underwood & Strykcr v Strubzch a a] CUE as 2024 VI Super 19 Last, N0 ST 1995 CV 00459 Memorandum Opinion

that planned use Id at 281

58 The easement was designated by specific indication on the T57 map depicted as a R O W

that has been incorporated into all original property deeds conveyed by the Dicrsscns tor

Parcel Nos 4 26 4 27 and 4 28

59 The first portion of Parcel No 4 22 is designated as Parcel No 4 22B

60 Both surveyor experts agree on the location 0fthe T57 ROW Both agree there is a valid

twenty feet (20 )widc easement shown as the right of way as depieted 0n T57 The

R O W begins at the intersection ofthe main road at the entrance to Parcel No 4 22B

running through Parcel No 4 22B uphill, passed the two Switchback; and along the

boundary line of Panel No 4 22A and 4 26 (approximately halt in each parcel) running

across the southern side 0t Parcel No 4 27 and terminating at the boundary line 0t Parcel

No 4 28

61 'l he R O W starts at the intersection of the main road by branching off75ft more or

less from the northwest comer of Panel No 4 22 on the 1 571mm and 166fi at the

northeast comer heading uphill with the width measuring 20fi and in some areas 36tt

wide Gaurzlofl' Report Mayer EA/‘IZIIZ’ 46

62 Starting at the entrance to Parcel No 4 22B and through the middle ot the entire parcel

uphill in a zigzag pattern the existing concrete paved road follows the right of way but the

road is not situated in the right of way The right of way runs uphill towards the boundaries

ofParccl No 4 26 and Panel No 4 22A Based on T62 the R O W is within the secondary

estate road and the road measures at 36tt in width at the switchbacks and then narrows

after the second switchback to approxiimtely 27 feet in width and continues on the path of

the right of way Gaunlq/f Report Masler Exhzbzt 46 Master Exhibit 4

63 The right at way continues over Parcel No 4 22A for another 252 in length more or less,

35 Unduwnndd’c $”ka v Strains}! a (1/ Cm as 2024 V1 Super 19 Case No ST 1995 CV 0045‘) Memorandum Opinion

on T62 until it narrows to 10 13 feet in width at the intersection ofPareeI No 4 22A and

Parcel No 4 26 which then widens to 20 as it continues along the fist halt of the

boundary line of Parcel No 4 22A and Parcel No 4 26; veers inland and aerass Parcel

No 4 27 and terminates at the western pelimeter line ofParcel No 4 28 Mastcr [xhzbzt 4

(Wtsehart s Drawmg N0 3654 3)

64 From the Point of Beginning (where Parcel Nos 4 26 and 4 22A intersect) continuing along

the boundary line ufthose parcels until the right of way tenninates at the western perimeter

of Parcel No 4 28 measures 7 964 square feet more or less, 201’: in width and consists of

183 acre (Wnchart s Report Drawmg N0 3654 3)

65 The T57 R O W , in its entirety, was never conveyed, destroyed, or abandoned

66 Priortu 1961 the right of way bisected Parcel No 4 22

67 The surveyor 5 expert reports the respective maps (including exhibits and site inspection)

and experts’ testimony reveal no significant difference in the opinions ofthe respeetive

export surveyon as to the precise location and scope ofthe T57 R O W

68 The difference between the experts survey maps represents approximately four and one

half feet (4 V: ft) between the hnund posts ofParcel N0 4 25 and Parcel No 4 26 which

is immaterial

69 The size ofthc R O W is a valid indicator the Dierssens did not intend for any portion of

the easement to be limited to a tootpath 0r bieycle path rather they intended for it to be

used as a perpetual easement for vehieular access across Parcel Nos 4 22A, 4 22B, 4 26

and 4 27 until it reaches Parcel No 4 28

70 Plaintitfs have the legal right to traverse the Estate Road lying between Parcel Nos 4

22A and 4 22B Defendants regularly use the same Estate Road tor access to their

properties at 4 22A 4 22B and 4 26 therefore they cannot legally prevent or restrict

36 Undenmutl & Slryker v Strublch LI [1/ Cue as 2024 V1 Super 19 Cast. No SI 1995 CV 00459 Memorandum Opinion

vehicular acne» to Parcel No 4 27 or Parcel No 4 28

71 Plaintiffs have a legal right t0 the twenty toot (20 )widc easement for unrestricted

vehicular access aucss Parcel Nos 4 22A, 4 22B and 4 26 to reach Parcel Nos 4 27 and 4

72 The Defendant, Intervening Defendants, and their successors in interest have no legal

right tn prevent or restrict vehicular access across any section of the Estate Road depicted

on T61 or the Secondary Estate Road shown on T62

73 '1 he Defendant Intervening Detendants and their successors in interest have no legal right

to prevent or restrict vehicular aceess across any section ofthc T57 R O W as has been

located by this Court in these proceedings

74 Plaintiffs can traverse the proposed estate road because the Dicrssen deeds explicitly

provide for an easement over “all roads in Parcel No 4 which are now in existence or shall

hereafter be constructed tor ingress and egress from tho Publie Road or otherwise

Sfrelbtch at 502

75 T57 R O W was specifically designed and mapped for ingress and egress only from the

main road

76 The Supreme Court acknowledged that T57 is a complete map ofthc entire planned

subdivision while T61 and T62 ate limited in scope to Parcel Nos 4 22A and 4 22B only

These drawings are therefore of limited significance in determining the Dienscm’ intent

towards the remainder ofthe R O W Slrclhlch at fn 15

77 Hence Plaintiffs do not need to show that the Dierssens had the right to convey an

easement over Parcel N05 4 22A and 4 22B Rather Plaintiffs only needed to prove that

they have the right to use the estate toad across 4 22A and 4 22B and as such Plaintiffe have

prevailed

37 UmlLrwaad & Stryker v Stretbzch, e! u! Cm as 2024 VI Super 19 Case No ST 1995 CV 0045‘) Memorandum Opinion

D T57ROW Upon4 26

78 Defendants arguments that Plaintiffs and Intervening Plaintifls must use the lower road as

it was intended by the Dierssens are equally unavailing as there is absolutely no evidence

that the creation of the lower road (.de first in time, thereby extinguishing the use of the

easement 0f tenord

79 When Streibich purchased Parcel No 4 26 in 1989 he was on notice that there was a 20

foot wide easement of record burdening Parcel No 4 26 When Streibich purchased Parcel

No 4 22A in June 2007, this lawsuit was pending, and he was an notice that there was a

20 foot wide easement or R O W at report} burdening Panel No 4 22A

80 At trial, Defendants offered no evidence of any overt act or failure to act which implies that

Plaintifls neither claimed nor retained any interest in their easement

8| T0 the contrary Plaintiff immediately attempted to use the easement right aficr purchase

Plaintift Underwood promptly brought this action in 1995 when she reali7ed she was

restricted from having the use ot the R O W and Plaintiffs have fervently pursued the right

to use the 2011 wide easement in the same manner as the Defendants do

82 At trial Defendants offered absoiutely no evidence to refute Plaintiffs position that the

use 0fthc T57 R O W is tor vehiLular use and is not restricted to a fcotpath or a

bicycle path Defendants’ own expert surveyor report and graphic map overlays

demonstrate vehicular use 83 lntervening Defendants argument that the Dierssens deeded away much of the R O W prior to the sale at 4 27 and 4 28 is innorrect Although the Diersscns inadvertently deeded away approximately four random portions of4 22A and 4 22B the only purpose of creating the T61 and T62 maps was to depict the subdivision of Parcel No 4 22 Nothing more 84 While there is no record 0fthe Dicrssens conveying title in Parcel No 4 22, the Court can draw a reasonable conclusion that the Dicrssens intent was not to single out 4 22 to make

38 Underwood & Slrykcr v Szrubrclz c141! Cite as 2024 V1 Super 1‘) Case No ST 1995 CV 00459 Memorandum Opinion

it an exception to the pre existing T57map and neither was the intent to create a private driveway tor Parcels 4 22 and 4 26 only It can be surmised the intent was to subdivide the 2 acre parcel of land consistent with most of the other 1 acre parcels in the general development plan ofParccl N0 4 to increase sales and recoup costs 85 Thus the Dierssens inadvertently deeded away sporadic insignificant portions of the easement and likely did not intend to do so Otherwise, Parcel No 4 22A would have become landlocked without the easement 86 Even without the subdivision of Parcel No 4 22 the T57 map pre existed all other maps and the right at way was already established 87 The Court concludes it would he illogical for there to exist an implied easement to Parcel No 4 26 and not to Parcel Nos 4 27 and 4 28 when these three adjoining lots are situated on the same ridge facing the Atlantic Ocean 88 Therefore all purchasers were on record notice of the T57easement E lnlunctive Relief 89 When determining injunctive relief, the Supreme Court of the Virgin Islands held the soundest rule for this jurisdiction is a sliding scale test, wherein a strong showing an one factor may decrease the weight assessed to other faetors allowing an injunction where the probability of success on the merits is low if the Court determines that the moving party 5 likelihood ofirreparable harm is great and the nonmoving party s likelihood of irreparable harm is very low Yuvcfv Ilamcd 59 V I 841 854 (V l 2013) 90 Here the Supreme Court has affirmed the trial court 5 ruling that there is an implied easement across Parcel No 4 26 91 Plaintiffs have suceessfully proven at trial that Drawing No "4654 3 survey map ofthc T57 R O W with bearings and distances depicts a 2011 wide easement across Parcel No 4 26 92 Defendants expert surveyor report and map Overlays of the T57 easement T61 and T62 maps depict T61 and T62 maps track a similar path ofthe T57 R O W 93 The Intervening Defendants argument that the Supreme Court may have ruled differently it they were allowed to intervene earlier in these proceedings is misplaced because the Supreme Court acknowledged the specific purpose of the T61 and T62 maps serve limited significance

39 Underwood & Stryker v élrubult LI 411 CIR. as 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

and were only relevant to those two panels, whereas T57 is relevant to the entire subdivision 5661/;th at 508 fn 15 94 T61 and T62 arc of limited significance in determining the Dicrrsens‘ intent towards the remainder 01 the R OW 1d 95 Judging from the size of the right of way it is evident the Dierssens intended to make the right of way available for ingress and egress to prospective property owners ofPareel Nos 4 26 4 22A 4 27, and 4 28 and their successors 96 Defendants have tailed to show an implied easement does not exist which ironically is the same implied easement that Defendant Streibich argued was abandoned that is in constant use by him and the Intervening Defendants 97 A movam suffers irreparable harm where there is certain and imminent harm for which a monetary award does not adequately compenmte 1’14)er HtlmLtI 59 V I 841 854 (V I 2013) 1fthe movant will suffer damages that will be ditficult to ascertain, they are considered inadequate " 98 The implied easement existed approximately 37 years before any 0m, of the current Plaintiffs purchased any of the properties Afier the first purchase in 1994, Defendant Streihich prevented Plaintitts fiom enjoying the use and benefit of their properties 99 The Supreme Cuurt ofthc Virgin Islands held [i]n contrast to legal remedies like money damages, irreparable harm is an equitable relief ”‘2 3R6 & (a v Emma [making Syi Inc 63 V1544(V12015)

100 Defendants engineering expert Paul Ferreras, evaluated the topography and existing slopes of the easement in light of govcmment regulations and safety concerns th1t establish safe dnvable limits (the gTade slupe, width etc that a vehiLle can sately traverse) for road construction Defendants argued the lowel road which requires uphill road construction should be used Master Exhzbzt 65 pp 7 8 54 55 66 67 Master Exhlbzl 47 pp I 3 101 Irrepardble harm has already occurred as tho Plaintiffs have been unable to use the implied easement for almost 30 years Further the hann is compounded when forced to excavate the lower road uphill to access theii properties when an implied easement already exists on the

” Sb‘RMCOA LICI Muldwuae ReulL'vmlt Immimem LLC 62 VI 168 188 (2015) ' 1d at 553

40 Underwood & Sfrykcr v Wrath“)! a (1] (m a5 2024 V1 Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

upper road thereby inevitably forcing Plaintitts to extinguish a property right they already have to ingress and egress 102 increased traffic flow, as the Intervening Defendants claim, is not a reason tojustify denial ofinjunetive reliefneither does the temporary disruption oftratlic flow during construction on Parcel Nos 4 27 and 4 28 outweigh the Dierssens intent to grant the easement for access to thnse properties 103 As it pertains to the boundary line ofthe implied easement runnin;,y through Delendant Streibieh’s property at the entrance to his house, harm ifany, can be minimized by using the southem portion ofthe ZOfieasement away from Streibich 5 property 104 While both surveyors placed their respective Surveyor 5 flags in plate both agreed that the boundary of the easement mus through the entrance of Parcel No 4 26 but the easement was in place from 1957 prior to construction of the home built by the Battles in the 19805 105 Streibich does not have a statutorily or contractually granted right to arbitrarily relocate the easement away 110m his house The Court recognizes Streibieh’s desire to protect and avoid any property damage to his entrance (as the steps are partially within the easement) 106 The Court finds however that there is sufiieient width for unrestricted vehicular traffic, to pass without interfering with the Streihieh property Also the hill can be excavated (even partially) to allow for ingress and egress traffic away from the Streibieh entrance 107 Greater harm will result to the Plaintiffs if they are continuously deprived of the right to tiaveree the implied easement the Diet ssens intended for vehicular use to access their properties 108 Greater harm will result to the Plaintiffs than to the Defendants if Plaintiffs are not granted injunctive relief Neither Detendant has an exclusive right to the easement and because there is no exclusive interest or right to the right of way the Court finds that Defendants gutter no harm from unrestricted vehicular use of the easement that they currently enjoy 109 Increased traffic flow during construction or additional residents in the neighborhood does not outweigh Plaintiffs entitlement to the right 0t way 1 10 Where the discernment oh grantor’s intent is necessary to detennine the actions of 0f the parties, public poliLy dictates that the grantor s intent and wishes must be honored

41 Underwood & S'lrykLr v élrubmh cl (1! Cm as 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

1 l 1 Maps that are ineurporated into deeds by reference serve a specific purpose and must be interpreted in conjunction with the deeds and Ali g“ with the intent of the gamer l 12 Based on the evidence presented the implied easement is not a footpath 0r bicyele path rather Marshall and Sidney Dierssen intended to provide unrestrained perpetual vehicular access along T57 right of way for ingress and egress only 1 l3 Therefore, the Court Adopts and incorporates into the deeds and title of record the survey

map prepared by Ryan Wisehart as the Cout finds the map to be more preeise through the

inclusion of the exact GPS coordinates bearings and distances to put patties and all

subsequent purchasers on notice of the exact location of the T57 casement F Conclusion

WHEREFORE pursuant to these Findings of Fact and Conclusions of Law judgment is entered in fawn of the Plaintiffs Plaintiffs have prevailed by establishing that the scope of the T57 implied easement is 101 permanent vehicular use Both expert Surveyors agree on the location and the scope of the easement Considering that in 1958 Marshall and Sidney Dierssen established the original right 0t way across Parcel No 4 22 and had already begun the process of selling land from the subdivision, the intent was to create access to Parcel No: 4 26, 4 27, and 4 28 The subsequent division and sales within Parcel No 4 22 a few years later in 1961 had no bearing on the pre existing easement The easement ensured Parcel No 4 22A would not become landlocked In 1961 and again in l962 the Dierssens re emphasized their intent to grant a right of way when they mapped out the estate mad and the secondary estate road on T61 andT62

Further both experts agree the easement is 20 feet wide across Parcels 4 26 and 4 27 There is only one path that leads from Parcel No 4 22B to Parcel No 4 28 and both experts agree the easement is located at the entrance of Parcel No 4 22B and terminates at the westem perimeter line of Parcel No 4 28 Drawing No 3654 3 and graphic map reproductions depicting the T57 easement estate roads and parcels are illustrative of Marshall and Sidney Diersaem intent to provide a right at way as part of the general development plan of Parcel No 4

42 UnlILVWDOd& Stalker v S'irubxch a [ll cm as 2024 VI Super 19 Case No ST 1995 CV 00459 Memorandum Opinion

The Court accepts the calculations and GPS Coordinates submitted with bearings and distances defined by Drawing No 3654 3 produced by Ryan Wiseharl The drawing shall be filed with 1m. Government of the Virgin Islands, Office of the I ieutmant Governor Recorder of Deeds office placing all purchaser: on notice 01 the permamm easement for vehicular ingress and egress only situated at Parcel No 4 Estate Faber & Harmony - e rials order accompanies this xmmorandum opinion

/ ’ / W ate r w I I ./ Renee s Carly m Senior Sit g Judge Superior Court 0 he Virgin Islands

ATTEST Tamara Charles Clerk of the Court

By M Donna D Donovan .9 Court Clerk Supervisor QL/ Q91 aafl/