Thornton Tayloe v. Derrick Kinsey

• Court: Court of Appeals of Virginia
• Decided: July 15, 2025
• Docket: 2044231
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Ortiz, Raphael and White Argued at Virginia Beach, Virginia

THORNTON TAYLOE, ET AL. MEMORANDUM OPINION* BY v. Record No. 2044-23-1 JUDGE KIMBERLEY SLAYTON WHITE JULY 15, 2025 DERRICK KINSEY, ET AL.

FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY W. Revell Lewis, III, Judge

Norman A. Thomas (Ralph E. Main, Jr.; Charles M. Lollar; Norman A. Thomas, PLLC; Dygert, Wright, Hobbs & Hernandez, PLC; Lollar Law, PLLC, on briefs), for appellants.

Douglas E. Kahle (Zachary A. Handlin; Basnight, Kinser, Leftwich & Nuckolls, P.C., on brief), for appellees.

The principal question in this appeal is whether an easement to use a “Wharf Facility on

the easternmost portion of the lands of the Grantor” grants access to the entire waterfront parcel

or to only a pier on the easternmost portion of that parcel. Finding that the trial court correctly

interpreted the easement to grant access only to the pier on the easternmost portion of the parcel,

we affirm.

BACKGROUND

This matter arises from a dispute among neighbors who own property in tidewater

Virginia known as “The Shore.” The property includes three lots, each with different owners

who have enjoyed the use of the waterfront attached to one of the lots. The use of this waterfront

property is at the center of the disagreement. This case presents an appeal of the circuit court’s

* This opinion is not designated for publication. See Code § 17.1-413(A). interpretation of certain deeds, which grant two easements over the waterfront lot. The

easements at issue benefit Parcels B-1 and C, which are owned or occupied by the appellants (the

Tayloes). The easements burden the property of the appellees (the Kinseys), Parcel B-2, the

waterfront lot.

The disagreements with their neighbors over the use and location of the easements led the

Kinseys to sue the Tayloes. Those sued were Thornton and Kate Tayloe and their two minor

children; Salt Grove Properties, LLC, the company through which Thornton and Kate own

Parcel B-1; and Louise F. Tayloe and Edward D. Tayloe, II, who are Thornton Tayloe’s parents

and the owners of Parcel C. The Tayloes counterclaimed. Following a hearing on the issuance

of a preliminary injunction and a trial on the merits, the trial court granted relief sought by the

Kinseys. The Tayloes assigned error to numerous rulings by the trial court. We disagree that the

trial court erred and affirm its decision.

The Tayloes and the Kinseys are neighbors situated on three plots of land. The land is

located on the Chesapeake Bay side of the Eastern Shore, with one of the plots fronting on and

with access to both Cherrystone Creek and Eyre Hall Creek. Thornton and Kate Tayloe reside

on the parcel known as B-1; the Kinseys reside on the parcel known as B-2, the water-front

parcel at the center of the dispute; and Louise and Edward Tayloe reside on the parcel known as

-2- C.1 The deeds of conveyance created certain easements, the scope of which are the central issue

of this case.

The Creation of the Easements at Issue

In 1993, Salt Grove, L.C.,2 acquired the entire tract of land that now constitutes the three

parcels from David Steelman, II, and, at the same time, also put to record was a Declaration of

Restrictive Covenant and Grant of Easement (“Declaration”) affecting all three parcels, with

Trial Exhibit A, Plat Book 21, Page 59. 2 The principal member of Salt Grove, L.C., was Eyre Baldwin, whose interactions with the Tayloes become relevant later. -3- some provisions running with the land and others being personal to Steelman and not assignable.

Salt Grove, L.C., subdivided what was originally Parcel B into Parcels B-1 and B-2 in 1995.

The deed language Salt Grove, L.C., used in its initial conveyance includes, in relevant

part:

And together with an easement to use that certain Wharf Facility located on the easternmost portion of the lands of the Grantor. Such easement shall include the right and privilege to moor one (1) vessel of up to twenty-six (26’) feet in length, at the pier currently located on the premises or at any replacement pier constructed by the Grantor . . . . This easement includes the right to use the boat ramp now located on the premises, or any replacement ramp hereafter constructed at the Wharf Facility by Grantor . . . to provide ingress and egress to and from the waters of the Commonwealth. This easement includes a further right of ingress and egress to and from the Wharf Facility over such other portions of the lands of Grantor not exceeding twenty feet (20’) in width as may be reasonably designed and relocated by Grantor, at its expense . . . from time to time. This easement shall be appurtenant to and run with the lands conveyed herein, and shall be for recreational purposes only. The Grantees agree . . . that they shall be bound by the covenants and restrictions contained herein and in other instruments in the chain of title, and further agree to be bound by other covenants, rules and regulations applying to all users of the Wharf Facility as may be promulgated from time to time by Grantor, its successors or assigns.

The deed also sets forth that “[t]he Grantees and their heirs and assigns shall not utilize the

easements in any manner that unreasonably interferes with the use of the Wharf Facility by the

Grantor, its successors and assigns.”

Parcel C

In 1993, prior to the subdivision of Parcel B, Salt Grove, L.C., conveyed Parcel C to

Theodore and Ruth Flannagan (the “Flannagans”). The deed contained a utility easement and an

ingress and egress easement to access Parcel B across Salt Grove, L.C.’s “remaining lands.”

Salt Grove, L.C., also conveyed to the Flannagans “an easement to use that certain Wharf

Facility located on the easternmost portion of the lands of the Grantor.”

-4- In 2008, the Flannagans conveyed Parcel C to Louise and Edward Tayloe. The deed

conveyed to them the same easement to access and use the “Wharf Facility” in accordance with

the same terms. It likewise expressly made the conveyance subject to the recorded Declaration,

which is discussed below.

Parcel B-1

By deed, in 1998, Salt Grove, L.C., conveyed Parcel B-1 to Earl Williams Walker. The

deed provided a utility and ingress and egress easement to access B-1 and made the conveyance

subject to the recorded Declaration. The deed also granted an appurtenant “transferable,

perpetual easement to use that certain Wharf Facility located on the easternmost portion of the

lands of the Grantor.” The deed nearly mirrored the language used in the 1993 Flannagan Deed,

although one relevant exception was that the deed allowed the grantee the “right and privilege”

to moor a boat of greater length, “up to thirty-one (31’) feet in length . . . at the pier currently

located on Parcel ‘B-2’ or at any replacement pier . . . .”

In 2003, Walker conveyed Parcel B-1 by deed to Louise Tayloe. The deed conveyed to

her the same “transferable, perpetual easement to use that certain Wharf Facility” as provided for

in the 1998 Deed from Salt Grove, L.C., to Walker. Louise then conveyed Parcel B-1 to Salt

Grove Properties, LLC, a company owned by Thornton and Kate Tayloe.3 The deed to Salt

Grove Properties, LLC, included conveyance of the “transferable, perpetual easement to use that

certain Wharf Facility . . . more particularly described in the deed dated February 9, 1998.” Both

deeds made Parcel B-1 subject to the Declaration.

3 Salt Grove Properties, LLC, is an entirely separate entity from Salt Grove, L.C. Salt Grove, L.C., originally sold Parcel B-1 to Walker and Parcel C to the Flannagans. -5- Parcel B-2

Salt Grove, L.C., eventually changed its name to Salt Grove Investors, LLC, and, by deed

dated June 24, 2021, conveyed Parcel B-2 to the Kinseys. The conveyance acknowledged that

Parcel B-2 is burdened with the easements benefitting Parcels B-1 and C. The deed made the

conveyance subject to “all the easements, conditions, covenants, restrictions, and reservations

contained in duly recorded deeds and plats and other instruments constituting constructive notice

in the chain of title to the property,” which includes the Declaration.

Today, Parcel B-2 contains various structures and attributes. An oyster watch house,

which is currently used by the Kinseys as a residence on Parcel B-2, is located on the western

end of the parcel. On the easternmost portion of the parcel is a pier, bulkhead, and boat ramp.

The Declaration of Restrictive Covenants and Grant of Easement

The Declaration is dated February 11, 1993, and declared covenants and granted

easements from Salt Grove, L.C., to Steelman—some running with the land and some personal,

not running with the land. Article I subjects both Parcels B and C to its provisions (now Parcels

B-1, B-2, and C). These provisions run with the land: “All of the Restrictions shall run with the

land, except as otherwise set forth herein . . . .” Article III, however, applies only to the property

of and the conduct of Steelman and his family: “Such easements are easements in gross, or

personal, and for the use of the Grantees . . . , and such rights are not assignable or transferrable,

and do not run with the land . . . .”

Between Articles I and III, Article II provides for the modification of the restrictions. The

article permits “modifi[cation], supplement[ation], delet[ion] or revis[ion] by the Declarant,” Salt

Grove, L.C., and “thereafter by the fee simple owners of the Property.” Later in the article, the

power to modify the restrictions is limited, but only so long as the Article III easement holder is

living. The limitation would require a majority of the adults holding the Article III easement in

-6- gross to agree to proposed changes. In addition, the limitation only applied to the restrictions on

the use of the facility contained in Article IV. While perhaps intending to refer to Article V, the

article which lists the restrictions running with the land, Article IV lists the responsibilities of

those for the upkeep of the Wharf Facility. The restrictions running with the land and applicable

to the entire property contained within Article V included the forbidding of:

(1) Condominiums;

(2) Restaurants;

(3) Crab processing;

(4) Use of Wharf Facility as commercial fuel dock;

(5) Nuisances;

(6) Keeping derelict or abandoned vessels; and

(7) Regular storage of seafood products.

The restrictions also required that all boat slips and dockage areas be kept in a clean and orderly

manner, that all boats be docked in a clean and orderly manner, that all boat owners using the

Wharf Facility to moor their boats keep those boats compliant with governmental regulations,

and that all seafood products “handled at the Wharf facility shall be properly packaged and

handled in strict accordance with [maritime and health regulations].”

The personal easement granted to the Steelman family allowed for the use of a pier and a

boat ramp, and for the ingress and egress to those structures. It further allowed for the mooring

of vessels of up to a specific length.

The Alleged Ambiguity

The deeds’ easement language does not expressly define the term “Wharf Facility.”

While the entirety of Parcel B-2 was historically referred to as the Wharf Facility, because for

many years its piers and bulkheads were leased to third parties engaged in the seafood industry,

-7- the Kinseys argue that the entirety of B-2 has more recently been referred to as Salt Grove by

both the Kinseys and the prior owner. The Kinseys argue that the term “Wharf Facility” is meant

to limit the easement only to those physical structures located on the easternmost portion of B-2,

and not to include the entirety of the parcel. The Tayloes contend otherwise.

The Use of the Property Before the Kinseys

Thornton and Kate Tayloe have lived in their home on Parcel B-1 since 2004. Louise

and Edward Tayloe use Parcel C as a second home. For some sixteen years, the Tayloe family

regularly used the entirety of Parcel B-2, as did the Flannagans. Salt Grove, L.C.’s member,

Baldwin, gave the Tayloes a key of their own to the office located on Parcel B-2, and allowed

them to use the bathroom there, as well as allowed them to draw and use the gasoline stored

there, requiring only that the Tayloes record their usage. He also allowed the Tayloes to use the

electricity, including to “turn on the lights under the pole shed and go fishing for rockfish.”

The Tayloes entered Parcel B-2 and engaged in recreational activities, including boating

and kayaking, launching and retrieving their boats, crabbing and fishing from the bulkhead and

their designated pier, parking in the oyster-shell parking lot in front of their boat slips while out

on or servicing their boats, and checking on their boats when moored in their designated boat

slips. The Tayloe children would ride their bikes down to the piers to check crab pots, and adults

would sit and read.

Baldwin made improvements to Parcel B-2, including demolishing and converting older

structures. By 2016, the improvements included an “oyster watch house” described as a place to

watch oyster beds. He also created an upstairs apartment in the watch house, which he began

renting out. He also offered the property as a place to host weddings.

Thornton and Kate Tayloe grew unsettled with Baldwin’s wedding business. They

claimed that these events brought in significant numbers of people. Thornton and Kate

-8- explained that “there were people parked everywhere,” including in their yard on Parcel B-1.

They testified that guests would also park in front of the boat ramp located on Parcel B-2 “so we

couldn’t use it.” Thornton and Kate met with Baldwin about these issues. Baldwin assured them

that “it’s not a big deal; it’s only going to be three or four months during the summer every

weekend.” After two summers of the activities, Thornton and Kate complained to Northampton

County officials, who thereafter shut down the short-term apartment rentals and the property’s

usage for weddings and events. Thornton and Kate claim that, at that point, Baldwin began a

retaliatory campaign in response to their complaint.

In 2020, Baldwin unilaterally created an unsigned, unrecorded list of some twenty-eight

“Rules and Regulations” that purported to restrict the Tayloes’ use of Parcel B-2’s amenities. Its

provisions purported to “apply to all users, tenants, easement holders and/or their invitees upon

this property.” The Rules and Regulations claimed the power to terminate the easements

benefitting Parcels B-1 and C and to assess attorney fees and expenses.

The Tayloes and Kinseys

The Tayloes and Kinseys were friendly when the Kinseys first bought B-2 in 2021 from

Salt Grove, L.C. The initial good relationship deteriorated, and the Kinseys sought to enforce

Baldwin’s Rules and Regulations against the Tayloes, ultimately initiating this lawsuit to

terminate the Parcels B-1 and C easements.4

In bringing their suit, the Kinseys alleged that the Tayloes violated the terms of the

easements by exceeding their rights to use the Wharf Facility. The Kinseys alleged that the

Tayloes’ objectionable actions included placing kayaks on the main dock in a manner that

4 The Kinseys’ closing argument clarified that they were seeking neither injunctive relief against Louise and Edward Tayloe nor to terminate Parcel C’s easement. The Kinseys attempted to enforce the Baldwin Rules, but the trial court found them unenforceable. The trial court’s final order reflects that holding; the Kinseys assigned no cross-error to it. -9- blocked access by other users; sending their children down to the floating dock daily, from where

the Tayloe children would refuse to leave when asked by the Kinseys; fishing and crabbing from

the bulkhead; asserting and exercising a non-existent right to trespass onto areas not described in

the easements or designated as being within the ingress and egress easement; using the parcel for

commercial purposes; interfering with the rights of the Kinseys’ tenant and with the Kinseys’ use

and enjoyment of the oyster watch house, as the Tayloes would “film [them]”; and by calling the

police on the Kinseys’ guests alleging that those guests could not be on the property. The

Kinseys entered photos and statements into evidence which further demonstrated the Tayloes’

activities.

PROCEDURAL OVERVIEW

Count I of the Kinseys’ complaint sought injunctive relief against each of the Tayloe

family members, including the minor Tayloe children, to “cease and desist” trespassing or

“otherwise acting in any manner that exceeds” their easement rights. Count II of the complaint

was the Kinseys’ request that the circuit court terminate the easements and award them attorney

fees and expenses.

The Tayloes’ declaratory judgment counterclaim alleged the chain of title to their

respective parcels and asserted that the Kinseys (and their immediate predecessor in title) had

unreasonably interfered with and sought to “impermissibly restrict their easement rights to use

the Wharf Facility,” including through a series of purported Rules and Regulations. They

alleged that the Kinseys sought to limit: the “usage area of the Wharf Facility”; access to the

Facility; the “types of usage”; and the “times of usage.” Furthermore, they asserted that the

Kinseys intentionally hindered their recreational use of their easement through the “imposition of

restrictive rules having no nexus with the intended use of the Wharf Facility.”

- 10 - The Tayloes requested that the circuit court enter a declaratory judgment determining the

“physical scope of the Wharf Facility”; their “usage rights” as granted by the easements; whether

the Rules and Regulations constituted an unreasonable interference with their easement rights;

whether the Kinseys, as owners of Parcel B-2, could unilaterally impose restrictions on their

easement rights; and whether the Kinseys had a right to terminate their perpetual easements.

The Kinseys also sought a preliminary injunction. The trial court conducted a hearing on

the preliminary injunction in August 2022 and entered an order temporarily enjoining Thornton

and Kate Tayloe and their children from going “northwest of the line drawn by the Court” on a

copy of a Wharf Facility plat as “entered into the Court’s file.”

The trial occurred in June 2023, and the final order was entered on October 30, 2023. In

this final order, the circuit court held that the “Wharf Facility” relates to those man-made

improvements constructed along the easternmost portion of Parcel B-2 and not to the entirety of

Parcel B-2. The court identified those man-made improvements as the dock, the bulkhead, the

pier, the mooring pilings, and the boat ramp. The court clarified that

the Wharf Facility easements granted for the benefit of Parcels B-1 and C consists of: . . . the right and privilege to moor one vessel up to 31 feet in length [26 feet in length for Parcel C] with a beam not exceeding 11 feet, 4 inches at a dock located at the Wharf Facility, as may be reasonably designated and relocated by the owner of Parcel B-2 from time to time; . . . the right to use the boat ramp now located on Parcel B-2 or any replacement ramp to provide ingress and egress to and from the waters of the Commonwealth; and . . . a right of way of ingress and egress across Parcel B-2 to and from the Wharf Facility not to exceed 20 feet in width. The easements are appurtenant to and run with Parcels B-1 and C and are for recreational uses only.

Additionally, the owners of B-1 and C, and their invitees, are bound by the covenants and

restrictions appearing in their chains of title, as well as by the rules and regulations applying to

all users of the Wharf Facility as may be promulgated by the owner of Parcel B-2. The court

found that, appurtenant to Parcels B-1 and C, an implied reasonable turn-around easement exists - 11 - over the area adjacent to the Wharf Facility to enable vehicles with or without boats and trailers

attached thereto to turn around and an implied easement to park their respective vehicles in

designated parking areas. Made a part of the final order was a plat of what the trial court

considered the Wharf Facility.5

Finally, the court found that Thornton and Kate Tayloe committed civil trespass by going

on portions of Parcel B-2 that were not included within the Wharf Facility easement. As such,

Thornton and Kate were permanently enjoined from going on any portion of Parcel B-2 that is

outside the limits of the easements and were further ordered to post a $20,000 bond.

- 12 - ANALYSIS

The Tayloes assign several errors to the circuit court’s final order. Specifically, the

Tayloes assert that the circuit court erred in determining that the scope of the easement was

limited to those man-made structures located on the easternmost portion of Parcel B-2 and

instead contend that the term “Wharf Facility” refers to the entirety of Parcel B-2, thus allowing

the Tayloes access to all the Kinseys’ property. The Tayloes also argue that the circuit court

erred in limiting their activities conducted within the easement. Furthermore, based on that

interpretation of the deed language, the Tayloes allege that the circuit court’s creation of the

implied turn-around and parking easements is in error. The Tayloes also assert that the Kinseys

cannot impose rules upon the users of the Wharf Facility unilaterally. Finally, the Tayloes

contend that the court erred in finding that Thornton and Kate committed any civil trespass.

Ultimately, all of the assertions made by the Tayloes hinge upon the interpretation of the use and

the location of the easement.

Our review of the decision of the trial court requires that, with regard to those purely factual

determinations made by the circuit court, “we will not disturb those findings unless they are plainly

wrong or without evidence to support them.” Wetlands Am. Tr., Inc. v. White Cloud Nine Ventures,

L.P., 291 Va. 153, 160 (2016) (quoting Perel v. Brennan, 267 Va. 691, 698 (2004)). In reviewing

those findings, we view the evidence “in the light most favorable to the prevailing parties.” Id.

(quoting Carter v. Carter, 223 Va. 505, 509 (1982)).

“An easement is a privilege held by one landowner to use and enjoy certain property of

another in a particular manner and for a particular purpose.” Anderson v. Delore, 278 Va. 251, 256

(2009) (citing United States v. Blackman, 270 Va. 68, 76 (2005); Stoney Creek Resort, Inc. v.

Newman, 240 Va. 461, 464 (1990); Bunn v. Offutt, 216 Va. 681, 684 (1976)). Virginia law long has

recognized that this privilege encompasses an affirmative right to use and enjoy the encumbered

- 13 - property free from interference by the grantor of the easement or by other persons. Bunn, 216 Va. at

684. An easement appurtenant has both a dominant and a servient tract and is capable of being

transferred or inherited; easements appurtenant are frequently said to “run[] with the land,” meaning

that the benefit conveyed by, or the duty owed under the easement passes with the ownership of the

land to which is it appurtenant. Blackman, 270 Va. at 77.

In settling a dispute between landowners regarding the terms of an express easement granted

by deed, “we apply the customary rules governing the construction of written documents.”

Anderson, 278 Va. at 257. As with other contracts, we review a trial court’s construction of a deed

of easement de novo. Wetlands Am. Tr., Inc., 291 Va. at 160 (citing Marble Techs., Inc. v. Mallon,

290 Va. 27, 33 (2015)). Thus, we ascertain the rights of the parties from the words set forth in the

deeds. Pyramid Dev., L.L.C. v. D&J Associates, 262 Va. 750, 754 (2001).

A. The circuit court did not err in its interpretation of the deeds’ language nor of the boundaries of the easements at issue.

The Tayloes’ assignments of error question the circuit court’s interpretation of the deeds of

easements’ language. First, the Tayloes generally allege that the trial court misinterpreted the deeds

of easement appurtenant to and burdening Parcel B-2 as to the Wharf Facility, and therefore

incorrectly attenuated their property rights and privileges as Parcels B-1 and C’s owners. Second,

the Tayloes contend that the court incorrectly determined the boundaries, area, and constituent parts

of the Wharf Facility by limiting it to “the man-made improvements comprising [of] . . . the dock,

the bulkhead, the pier, the mooring pilings and the boat ramp.”

Supporting their claim of misinterpretation, the Tayloes first advance a statutory argument,

relying on the minimally interpreted Code § 55.1-305 relating to the reasonableness of easements.

They then advance the argument that the deed language was not ambiguous and that the

unambiguous language and scope of the deeds and easement were misinterpreted by the court. We

address each argument in turn. - 14 - i. Code § 55.1-305

The Tayloes begin with the assertion that “[t]he General Assembly established a mutual

reasonableness standard applicable to all easements in Code § 55.1-305.” They argue that

Virginia caselaw “recognizes this reasonableness standard.” Code § 55.1-305, relating to the

enjoyment of easements, was first enacted in 2003 by the General Assembly as Code § 55-50.1

and was recodified as Code § 55.1-305 in 2019. It reads, in relevant part:

Unless otherwise provided for in the terms of an easement, the owner of a dominant estate shall not use an easement in a way that is not reasonably consistent with the uses contemplated by the grant of the easement, and the owner of the servient estate shall not engage in an activity or cause to be present any objects either upon the burdened land or immediately adjacent to such land that unreasonably interferes with the enjoyment of the easement by the owner of the dominant estate.

Code § 55.1-305.

The Tayloes maintain that the circuit court’s interpretation of the scope of the easements

violated Code § 55.1-305 by its “judicial attenuation of the easement rights benefitting parcels

B-1 and C.” This, however, is not the case.

Here, Code § 55.1-305’s language clearly applies to and governs the specific conduct of

the parties involved in a given easement, not the interpretation of the scope of an easement.

Where statutory language is unambiguous, this Court is “bound by the plain meaning of that

statutory language.” Jones v. Commonwealth, 296 Va. 412, 415 (2018) (quoting Alston v.

Commonwealth, 274 Va. 759, 769 (2007)). Although there may be a reasonableness standard

custom in Virginia caselaw when interpreting the scope of the use of an easement or the apparent

conduct of parties regarding an easement, Code § 55.1-305 regulates only the conduct of parties,

and not the interpretation of the easement by a court. Thus, Code § 55.1-305 is irrelevant to this

analysis.

- 15 - ii. The language of the deeds is unambiguous.

Just as we review the interpretation of a deed of easement, we also review de novo the

fundamental question of whether a deed is ambiguous. Wetlands Am. Tr., Inc., 291 Va. at 160

(“[t]he question whether a writing is ambiguous is not one of fact but of law” (quoting Langman v.

Alumni Ass’n of the Univ. of Va., 247 Va. 491, 498 (1994))); see also Dye v. CNX Gas Co., 291 Va.

319, 323 (2016) (explaining that whether a deed is ambiguous is a “strictly legal issue”).

This Court’s function in construing a deed is to give effect to the parties’ intention as

expressed by them in the words they have used. Camp v. Camp, 220 Va. 595, 597-98 (1979).

“Where the language of [the] deed clearly and unambiguously expresses the intention of the parties,

no rules of construction should be used to defeat that intention.” Swords Creek Land P’ship v.

Belcher, 288 Va. 206, 212 (2014) (quoting CNX Gas Co. v. Rasnake, 287 Va. 163, 166-67 (2014)).

In interpreting the meaning of a deed of easement, “[w]e normally give the words used by the

parties ‘their usual, ordinary, and popular meaning. No word or clause in the [deed] will be treated

as meaningless if a reasonable meaning can be given to it, and there is a presumption that the parties

have not used words needlessly.’” Wetlands Am. Tr., Inc., 291 Va. at 161 (second alteration in

original) (quoting Squire v. Va. Hous. Dev. Auth., 287 Va. 507, 516 (2014)).

Relatedly, “[e]ffect should be given to every part of the instrument, if possible, and no part

thereof should be discarded as superfluous or meaningless.” CNX Gas Co., 287 Va. at 168 (citing

Auerbach v. County of Hanover, 252 Va. 410, 414 (1996); Foster v. Foster, 153 Va. 636, 645

(1930)). Thus, “[t]he whole of a deed and all its parts should be considered together” to determine

the controlling intent. Id. (citing Auerbach, 252 Va. at 414).

When the deed, so construed, is plain and unambiguous, we are “not at liberty to search for

its meaning beyond the instrument itself.” Va. Elec. Power Co. v. N. Va. Reg’l Park Auth., 270 Va.

309, 316 (2005). An instrument will be deemed to be unambiguous if its provisions are “capable of

- 16 - only one reasonable construction.” Clinch Valley Physicians, Inc. v. Garcia, 243 Va. 286, 289

(1992) (citation omitted). A deed will be deemed ambiguous, and thus require judicial

interpretation, however, if its “language admits of being understood in more than one way or refers

to two or more things at the same time.” Amos v. Coffey, 228 Va. 88, 92 (1984) (quoting Renner

Plumbing v. Renner, 225 Va. 508, 515 (1983)). “‘Only when the language is ambiguous may a

court look to parol evidence, or specifically, to the language employed in light of the circumstances

surrounding the parties and the land at the time the deed was executed’ in order to discern the

parties’ intent.” Marble Techs., Inc., 290 Va. at 33 (quoting Pyramid Dev., L.L.C., 262 Va. at 754).

But a deed is not ambiguous “merely because the parties disagree as to the meaning of the

language employed.” Amos, 228 Va. at 92 (quoting Wilson v. Holyfield, 227 Va. 184, 187 (1984));

see Worsham v. Worsham, 74 Va. App. 151, 171 (2022) (observing that “ambiguity is not created

. . . even when ‘courts in different jurisdictions’ disagree” about the proper interpretation (quoting

Bartolomucci v. Fed. Ins., 289 Va. 361, 371 (2015))). Similarly, the fact that analysis is required

does not, standing alone, suggest ambiguity. See Wetlands Am. Tr., Inc., 291 Va. at 161 (“Each part

of a deed ‘must be construed with reference to the whole, so as to make it harmonious and sensible

as a whole.’” (quoting Hinton v. Hinton, 209 Va. 544, 545-46 (1969))).

The Tayloes argue that the deed language granting the easements is unambiguous. They

state that, in February 1993, the Steelmans conveyed the entirety of Parcels B and C to Salt Grove,

L.C. Parcel B had not yet been subdivided, and it was not subdivided into Parcels B-1 and B-2

when Salt Grove, L.C., conveyed Parcel C to the Flannagans in September 1993. The deed from

Salt Grove, L.C., to the Flannagans for Parcel C conveys, “an easement to use that certain Wharf

Facility located on the easternmost portion of the lands of the Grantor.”

The Tayloes maintain that, at that moment in time, the “easternmost portion” of Salt Grove,

L.C.’s “lands” was what is now known as the entirety of Parcel B-2. They contend that this

- 17 - unambiguous deed language did not refer to any “man-made improvements” nor did it use any other

limiting terms that might differentiate the entire peninsula from something “on” that peninsula, and

that “[t]here is nothing in the record to indicate that the language used in each of the deeds means

anything other than it meant when first used by Salt Grove, L.C.” According to the Tayloes, the

meaning of Wharf Facility within the deeds unequivocally refers to the entirety of Parcel B-2.6

The Kinseys, on the other hand, rely on the fact that the term “Wharf Facility” is not

explicitly defined in neither the deeds nor the Declaration to assert that the deed language is, in fact,

ambiguous. The Kinseys contend that the circuit court’s contextual interpretation of the scope of

the easement is correct. While we disagree with the Kinseys and hold that the deeds of easement

are unambiguous as they pertain to the term “Wharf Facility,” the unambiguous language was

correctly interpreted by the circuit court to limit the scope of the easement to the man-made

structures built along the easternmost portion of Parcel B-2.

The deeds of easement here grant “a transferable, perpetual easement to use that certain

Wharf Facility located on the easternmost portion of the lands of the Grantor.” The deeds then

enumerate the allotted uses of the easement, including mooring a vessel of specified length at a pier,

using the boat ramp, a right of ingress and egress to the water, a right of access of a specified size to

the property, and that the easement be used only for recreational purposes.

6 The Tayloes allege that the Kinseys assumed successively inconsistent and contradictory positions in their pleadings and at trial and that it was in error for the circuit court to fail to hold the Kinseys to their pleadings. We may easily dispose of this argument, as the Tayloes failed to specifically identify this argument in any of their assignments of error and failed to cite to any portion of the record where this argument was actually made before the trial court. Under Rule 5A:20, therefore, this argument is waived. Furthermore, the Tayloes’ argument is fundamentally flawed. The Tayloes argue that because the Kinseys discuss the history of the disputed property in their pleadings, they have made a party admission that the “easternmost portion” of “that certain Wharf Facility” in the deed language refers to the entirety of Parcel B-2. - 18 - The trial court consulted the dictionary definitions of the words “wharf” and “facility” to

confirm their meaning. Although dictionary definitions are not binding, they are often consulted in

cases such as this one. See Wetlands Am. Tr., Inc., 291 Va. at 167. We simply regard such

dictionary definitions to be appropriate for consideration in determining the proper meaning of

“Wharf Facility” in the context of the easements where this term is undefined. Id. We do this as

part of our necessary duty to, in interpreting the meaning of a deed of easement, “give the words

used by the parties their usual, ordinary, and popular meaning.” Id. at 161 (internal quotation marks

omitted).

Webster’s Third New International Dictionary defines “wharf” as a

structure of timber, masonry, cement, earth, or other material built along or at an angle from the shore of navigable waters (as a harbor or river) and made with a sometimes partially covered platform so that vessels may lie close alongside to receive and discharge cargo and passengers; specif: a structure of open rather than filled construction extending parallel to the shoreline.

Wharf, Webster’s Third New International Dictionary 2599 (1993). “Facility” is defined as

“something that is built, constructed, installed, or established to perform some particular function or

to serve to facilitate some particular end.” Facility, Webster’s Third New International Dictionary,

supra, at 812-13. Read together, the term “Wharf Facility” unequivocally refers to man-made

improvements upon a portion of land running adjacent to, or near, a body of water—not to the

entirety of Parcel B-2.

Indeed, had the original grantors intended the easements to extend to the entirety of what is

now Parcel B-2, they likely would not have specifically designated the easements with reference to

the “easternmost portion” of “that certain Wharf Facility,” limiting the scope of the property

intended for use. Furthermore, the grantors identified that the easements were for the “use” thereof,

and described those certain uses, which were mooring a boat by use of a certain pier and using a

certain pier for certain recreational purposes. Such described uses only pertain to the actual physical - 19 - improvements located on the easternmost portion of the grantor’s original land. Additionally, the

original grantors conveyed an access easement not to exceed twenty feet in width for the purpose of

traversing across “other portions” of the grantor’s lands. By its nature, the grantors would not have

had to grant such an access easement had their intention been to convey the right to use the entirety

of the Parcel B-2.

While a deed may expressly create an easement, it may still fail to specifically define its

dimensions. Our Supreme Court has recognized that, when this situation occurs, and the deed

language does not state the object or purpose of the easement, the determination of the easement’s

scope “is made by reference to the intention of the parties to the grant,” ascertained from the

circumstances pertaining to the parties and the land at the time of the grant. Waskey v. Lewis, 224

Va. 206, 211 (1982); accord Cushman Va. Corp. v. Barnes, 204 Va. 245, 252 (1963). Where the

granting language does state the object or purpose of the easement, however, the dimensions of the

easement may be inferred “to be such as are reasonably sufficient for the accomplishment of that

object.” Anderson, 278 Va. at 257 (quoting Hamlin v. Pandapas, 197 Va. 659, 664 (1956)).

“Instruments ‘creat[ing] an easement must be strictly construed, with any doubt being resolved

against the establishment of the easement.’” Forbes v. Cantwell, 78 Va. App. 454, 466 (2023)

(alteration in original) (quoting Burdette v. Brush Mt. Ests., LLC, 278 Va. 286, 297 (2009)).

In the absence of any specific definition of the term “Wharf Facility” and in light of the

limiting language “easternmost portion,” as well as the physical location of the only man-made

improvements on Parcel B-2 that were identified in the easement grants, the trial court’s

interpretation of the deed language was supported by the evidence. The trial court correctly

determined that the easements did not extend beyond the physical implements it defined as the

“Wharf Facility,” which are reasonably sufficient to accomplish the specific uses described in the

easements, and for ingress and egress therefrom, as recited in the final order.

- 20 - B. The circuit court did not unduly burden or restrict the Tayloes’ easement rights.

The Tayloes argue that the circuit court erred by expressly forbidding crabbing and

fishing from the Tayloes’ designated pier on the Wharf Facility’s bulkheads. By doing this, they

allege, the court “appeared to intend to forbid any ‘recreational use’ activity other than boat

launching, mooring, recovery and maintenance.” Instead, the Tayloes assert that a correct

interpretation of the easements’ rights would allow any recreational uses of the Wharf Facility, to

include crabbing or fishing from the piers designated for Parcels B-1 and C’s uses and parking a

vehicle or boat trailer on any portion of the property. The Tayloes are steadfast in their position

that so long as the activity is recreational and does not unreasonably interfere with the Kinseys’

use of the Wharf Facility, the easements allow it. We disagree.

The original easement language is clear in that its purpose was to allow the grantee and

successors to be able to use the Wharf Facility for recreational, as opposed to commercial,

boating. The language granted mooring space at a pier for a boat of a particular length; it

allowed “ingress and egress to and from the waters of the Commonwealth”; the easement

included a further right access of a specified size to and from the Wharf Facility. The original

language is clear in the omission of any other use.

“The omission of a term from a written contract evidences intent to exclude it.”

Robinson-Huntly v. George Washington Carver Mut. Homes Ass’n, 287 Va. 425, 430 (2014).

Here, the easements are express in that they are for the “use” of “that certain Wharf Facility

located on the easternmost portion of the lands of the Grantor” and that the only uses described

are those related to the use of the physical Wharf Facility’s improvements on the easternmost

portion of Parcel B-2, and for ingress and egress therefrom. Just as we have held, that if the

original grantors intended the entirety of Parcel B-2 to be made servient the grantors would have

specified it, so too would the grantors have specified if the easement created other recreational

- 21 - rights than those listed, including crabbing or fishing from piers. Furthermore, the act of

specifying particular use rights in both easements “shows an intent to exclude” the term “use”

therein from meaning or referring to any other specific rights or activities, such as those prayed

for by the Tayloes. See, e.g., Bently Funding Grp., L.L.C. v. SK&R Grp., L.L.C., 269 Va. 315,

330 (2005).

C. The Tayloes’ specific parking spaces to park and turn around on Parcel B-2 are gratuitous grants by the trial court but are not required by the easements.

Attached to its final order, the court included an exhibit that assigns parking spaces “G” and

“H” to the owners of Parcels B-1 and C.7 The order itself states “[t]hat appurtenant to Parcels B-1

and C is an implied reasonable turn-around easement over the area adjacent to the Wharf Facility in

order to enable vehicles . . . to turn around” and that “the owners of Parcels B-1 and C shall have an

implied easement to park their respective vehicles, but not trailers, in the parking areas designated

for them and depicted on the attached plat.”

The Tayloes argue that, based on its misinterpretation of the deeds and the scope of the

easements, the circuit court incorrectly limited their access to Parcel B-2 by specifically designating

certain parking spaces. Furthermore, they allege that the parking spaces that the court designated

are “within the 20’ access easement to the Wharf Facility and intrude and infringe upon that access

easement.”

Instead, the Tayloes assert that a correct interpretation of Parcels B-1 and C’s easement

rights does not restrict parking on the entirety of Parcel B-2 in any particular area or space, so long

as the parking of a vehicle, trailer or other conveyance does not unreasonably interfere with the

rights of the Kinseys. The Kinseys did not object to the trial court’s establishment of the new

implied easement.

7 See supra footnote 5 for reference to the exhibit cited. - 22 - As discussed, the deed language unambiguously limits Parcel B-1 and C’s easement rights

to those man-made structures located on the easternmost portion of Parcel B-2. Thus, the Tayloes

do not have unrestricted access to park or turn around on Parcel B-2 based on the unambiguous

language of the deed. Aside from the Tayloes’ argument alleging deed misinterpretation, they also

claim that those parking spaces encroach on “the 20’ access easement” and thus the “court-ordered

encroachment improperly burdens the easement rights of Parcels B-1 and C’s owners.”

This argument is premised on a fundamental misstatement of the access easement. In

asserting the existence of this impermissible “encroachment,” the Tayloes incorrectly refer to a

“[twenty-foot] access easement.” Instead, both easements refer to a right of ingress and egress over

the “other portions of the land of the Grantor not exceeding twenty feet (20’) in width as may be

reasonably designated and relocated by Grantor . . . from time to time.” (Emphasis added). Salt

Grove, L.C., consistent with its right to designate the location of the access easement, designated the

location by means of physical survey. Salt Grove, L.C., also designated parking spaces for the

Tayloes’ use, although the subject easement did not grant the Tayloes any right to park vehicles on

Parcel B-2.

The Tayloes are correct that the unambiguous deed language does not call for the prescribed

parking spots. Because the deed language is unambiguous, the court was not entitled to search

outside of the documents or to create, on its own accord, a new easement based on the existing

language. Va. Elec. Power Co., 270 Va. at 316. While the trial court’s creation of an implied

easement for parking may be contrary to law, it is not for those reasons asserted by the Tayloes:

only that they claim access to the entirety of parcel B-2 and that the spaces encroach upon the

claimed access easement.8 Further, the Kinseys do not assign any cross error on appeal to the

8 The failure of the appellant to expand their argument and cite authorities beyond those made in support of a reversal of the trial court’s interpretation of the easement prevents us from further consideration of this issue. Rule 5A:20. - 23 - circuit court’s enumeration of parking spots “G” and “H” nor of the turn-around space. For this

reason, this Court will not reverse the trial court’s order establishing the parking spaces.

D. The Tayloes are “bound by rules and regulations applying to all users of the Wharf Facility as may be promulgated from time to time by the owners of Parcel B-2” and the rules and regulations regarding the Wharf Facility need not be unanimously approved by the owners of Parcels B-1, B-2, and C.

In its final order, the circuit court ruled that “the . . . Declaration . . . does not govern the

issues involved in this case.” It also held that “the owners of Parcels B-1 and C and their invitees

are bound by the covenants and restrictions appearing in their chains of title, and also to the rules

and regulations applying to all users of the Wharf Facility as may be promulgated from time to time

by the owner of Parcel B-2.”

The easements granted to Parcels B-1 and C are subject to the “covenants and restrictions”

contained in their chain of title, and the owners of those parcels are bound by “other covenants,

rules and regulations applying to all users of the Wharf Facility as may be promulgated from time to

time by Grantor, its successors or assigns.” While the Tayloes acknowledge this language is

contained within their chain of title and the Declaration, they disagree with any interpretation of

these provisions that would effectively enable the Kinseys to unilaterally impose rules and

regulations on the Wharf Facility. The Tayloes argue that the court was incorrect in deciding that,

in part, the Declaration was inapplicable to the easement interpretation issue and further assert that

the Declaration makes clear that any modifications in restrictive covenants must be unanimously

agreed upon by all owners of the properties. We disagree.

The Tayloes’ argument conflates the Declaration and the deeds in their chains of title

granting the easements. For this portion of the analysis, the court was correct to separate the two

documents.

The Declaration, while partly applicable to the owners of B-1, B-2, and C, contains certain

covenants and grants a terminable easement in gross to members of the Steelman family. The - 24 - Steelman easement, while similar to that contained later in deeds, is separate and distinct from those

easements granted to the owners of Parcels B-1 and C as set forth in the deeds in their respective

chains of title. Because the easement specified in the Declaration is not the same as those specified

in the deeds, the circuit court was correct to determine that the Declaration does not govern this

issue—this issue being one that specifically relates to the easement that runs with the land and now

benefits the Tayloes, not the terminable easement granted to members of the Steelman family.

The Declaration was executed in 1993, prior to the subdivision of Parcel B into Parcels B-1

and B-2. While the Declaration contains restrictions governing the use of Parcels B and C, and

provides that some of those restrictions “may not be modified, deleted or revised without the

consent of a majority of the then living adults,” the Tayloes fundamentally misunderstand this

limitation. Indeed, this limitation on the ability to modify the restrictions found in the Declaration

has no bearing on the easement rights granted to Parcels B-1 and C through the deeds. Instead, the

Declaration’s plain language clearly establishes its applicability to only those modifications to the

restrictive covenants affecting the Steelman easement and only to the responsibilities for the upkeep

of the Wharf Facility and further limit the “majority” to those comprising the Steelman family.

Turning to the deed language that created the appurtenant easements for Parcels B-1 and C’s

benefit on Parcel B-2, the Tayloes recognize and acknowledge that they are bound by restrictions in

their chain of title, and also, “agree to be bound by other covenants, rules and regulations applying

to all users of the Wharf Facility as may be promulgated from time to time by Salt Grove, L.C., its

successors and assigns.” Thus, the trial court correctly held, consistent with the unambiguous

language of the deeds, “That the owners of Parcels B-1 and C and their invitees are bound by the

covenants and restrictions appearing in their chains of title, and also to the rules and regulations

applying to all users of the Wharf Facility as may be promulgated from time to time by the owner of

Parcel B-2.” (Emphasis added).

- 25 - Unlike the limited majority approval requirement to modify the restrictions which affect the

Steelmans’ terminable easement in gross contained within the Declaration, there is no similar

requirement contained within the deeds granting the appurtenant easements at issue here.

Therefore, the circuit court did not err in its ruling, and the Kinseys are entitled to unilaterally

promulgate such reasonable rules and regulations, which apply to all users of the Wharf Facility.

E. The trial court did not err in holding that Thornton and Kate committed civil trespass and did not err in enjoining any of the Tayloes.

In August 2022, the circuit court entered a temporary injunction enjoining the Tayloes

from going upon any portion of the Kinseys’ property northeast of a line the trial court marked

on a copy of the physical survey (Exhibit 5). In its final order, the circuit court found that

Thornton and Kate Tayloe committed civil trespass by going on portions of Parcel B-2 that were

not included within the Wharf Facility easement. Thornton and Kate were permanently enjoined

from going on any portion of Parcel B-2 that is outside the limits of the easements and were

further ordered to post a $20,000 bond.

The Tayloes again rely upon their contention that the scope of the Wharf Facility extends

to the entirety of Parcel B-2 to assert that the trial court lacked a factual basis: (a) to rule that

Thornton and Kate Tayloe “committed civil trespass by going on the portions of Parcel B-2 that

were not part of the Wharf Facility easement”; (b) to enjoin them from “going on any portion of

Parcel B-2 that is outside the limits” of the man-made improvements specified by the court as the

scope of the Wharf Facility; or (c) to require them to post a bond. This argument fails.

As we have held, the trial court’s interpretation of the term “Wharf Facility” to refer to

those man-made structures on the easternmost portions of Parcel B-2 is supported by the

evidence. Further, the scope of the activity allowed by the easement as held by the trial court is

supported by the evidence. Therefore, the court had ample factual and legal basis to determine

- 26 - whether Thornton and Kate had already trespassed, or would trespass in the future, onto portions

of Parcel B-2 that were not part of the Wharf Facility easement.

The trial court had ample evidence to rule that Thornton and Kate Tayloe had trespassed

such that its bond requirement to ensure compliance with the final order was appropriate. The

trial court did not abuse its discretion.

CONCLUSION

Based on the foregoing, the decision of the trial court is affirmed.

Affirmed.

- 27 -