McNeil v. Kingrey

377 S.E.2d 430, 237 Va. 400, 5 Va. Law Rep. 1957, 1989 Va. LEXIS 46
CourtSupreme Court of Virginia
DecidedMarch 3, 1989
DocketRecord 860469
StatusPublished
Cited by19 cases

This text of 377 S.E.2d 430 (McNeil v. Kingrey) 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
McNeil v. Kingrey, 377 S.E.2d 430, 237 Va. 400, 5 Va. Law Rep. 1957, 1989 Va. LEXIS 46 (Va. 1989).

Opinions

WHITING, J.,

delivered the opinion of the Court.

[402]*402In this case, we decide whether the claimants of prescriptive rights of way over a rural dirt road near the City of Roanoke have borne their respective burdens of proof. In addition, we determine who bears the burden of showing not only the nature and character of a proposed change in the prescriptive use, but also that such change will cast no additional burden on the servient tract.

Otey L. Kingrey, T.R. Leslie, Juanita Long Kingrey, Hortense K. Shimchock, William M. Kingrey, Jr.,2 and Calvin W. Powers (the Kingreys), and Jimmy C. Preas, filed a bill of complaint against Rodney Ware McNeil, Executor and Trustee under the will of I.N. McNeil, to establish prescriptive easements in a dirt road on a 12-foot wide strip of land owned by McNeil in Roanoke County. The dirt road, used by McNeil’s predecessors to reach their property south of Virginia State Route 419 (formerly Route 119 or Starkey Road) (the state highway), extends south from the state highway for a distance of about 400 feet. The Kingreys now own 1.2 acres on the east side of the dirt road, and Preas owns .68 acres on the west side.

The trial court found that the Kingreys and Preas had proven their rights to such easements by clear and convincing evidence, and that they had the right to use the dirt road in the proposed commercial development of their properties. Therefore, the trial court enjoined McNeil from interfering with those rights. McNeil appeals.

Because the Kingreys and Preas prevailed in the trial court, we state the evidence in the light most favorable to them. Litchford v. Hancock, 232 Va. 496, 497, 352 S.E.2d 335, 336 (1987). The Kingreys’ house and curtilage, which abutted the state highway, were taken when the state highway was widened. Prior to its widening, they and their predecessors used the state highway as their means of access. In the rear of their original two-acre lot, however, they engaged in some agricultural activities, requiring access along the dirt road. Their evidence showed that, beginning at least in 1930 and up until 1972, they regularly and continuously used and maintained the dirt road with the knowledge but without the permission of its owner, Callie Campbell, under the belief that they had a right to do so. They ran vehicles over the dirt road two to three times a month to carry feed to their chick[403]*403ens and hogs, twice a year to butcher hogs for themselves and others, twice a year to remove a hay crop, and two times annually thereafter to spray and harvest the apples from trees they planted to replace their haying activities. One of the Kingreys testified that they, a Mr. Warner, and “the Lyons boys,” who apparently also used the dirt road, and Campbell, maintained the dirt road by filling potholes and making other repairs any time they were needed, sometimes two or three times a year.

Preas’s .68-acre lot lies approximately 230 feet south of the state highway. This lot came from a larger tract of 2.014 acres which Gertrude Smithers York acquired through mesne conveyances from the Kingreys in 1924.

Vera York MacMackin, Gertrude York’s daughter, who lived in York’s house near the state highway, testified that the Yorks made use of the dirt road under the belief that they had a right to do so, with Campbell’s knowledge and without objection or permission. MacMackin indicated that, originally, the Yorks reached their house using a driveway abutting the state highway. After the state highway was widened, at a time not shown in the record, the Yorks had to travel up the first 30 feet of the dirt road to get to their new driveway, because the widening apparently required a cut and left a bank between the York property and the state highway. MacMackin remembered that from 1930 until 1951, her brother, Raymond York, helped “repair the road quite a bit” and that her grandfather and brother used it “whenever they wanted to.”

Albert Warner, who lived in the neighborhood from his birth in 1930 until 1955, said that “anybody used the road to play on that lived in the area,” presumably including the York children. Otey Kingrey testified that from 1930, the Yorks used the dirt road whenever they wanted to, just as everyone else did, and that Raymond York would walk or drive a vehicle on the dirt road in coming and going to mow the bank on the York’s side of the dirt road. None of the witnesses testified as to the frequency or regularity of such uses.

After Gertrude York sold her house and that portion of the lot adjoining the state highway in 1951, retaining what later became the Preas lot, MacMackin used the dirt road about twice a year until 1964 to see that the remaining .68-acre lot was mowed. She sold the lot to Albert and Girlie L. Childress in 1964. Thereafter, Mr. Childress kept a calf and planted a garden on the vacant lot. [404]*404These activities required him to use the dirt road two to three times a week, until 1969 or 1970, when his leg was amputated. After that, Mr. Childress never went back on the property, and he and his wife sold it to Preas on October 20, 1972. Preas brought a mobile home onto the lot shortly thereafter. He or his tenants have occupied it and have used the dirt road as their means of access ever since.

None of the parties introduced any evidence as to the kind or quantity of the proposed commercial traffic upon the dirt road.

One who claims a prescriptive easement over the property of another has the burden of producing clear and convincing proof of each of the necessary elements thereof. Pettus v. Keeling, 232 Va. 483, 486, 352 S.E.2d 321, 324 (1987). Those elements are: exclusive, continuous, uninterrupted, adverse use of the roadway, under a claim of right, with the knowledge and acquiescence of the owners of the land over which it passes for a period of at least 20 years. Id. at 485, 352 S.E.2d at 323. Although a failure to show the origin of the use raises a presumption that the easement originated either adversely or by grant, the presumption only arises after proof that “a way has been thus used, openly, uninterruptedly, continuously and exclusively for a period of more than twenty years . . . .” Williams v. Green, 111 Va. 205, 207, 68 S.E. 253, 254 (1910). The extent of the prescriptive easement “is measured by the character of the use.” Pettus, 232 Va. at 490, 352 S.E.2d at 326.

The first issue in this case turns on whether the Kingreys and Preas have each introduced sufficient evidence to support the trial court’s finding that they and their respective predecessors have made continuous and uninterrupted use of the easements for the required number of years. The required continuity will depend on “the nature of the easement and the land it serves, as well as the character of the activity . . . .” Ward v. Harper, 234 Va. 68, 72, 360 S.E.2d 179, 182 (1987). Although the use need not be “daily, weekly, or even monthly,” in the case of seasonal operations on mountainous land in a remote area, id. at 72, 360 S.E.2d at 182, it nonetheless must “be of such frequency and continuity as to give reasonable notice to the landowner that [such a] right is being exercised against him,” 2 Minor on Real Property § 990, at 1274 (F. Ribble 2d ed. 1928).

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McNeil v. Kingrey
377 S.E.2d 430 (Supreme Court of Virginia, 1989)

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Bluebook (online)
377 S.E.2d 430, 237 Va. 400, 5 Va. Law Rep. 1957, 1989 Va. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcneil-v-kingrey-va-1989.