Waskey v. Lewis

294 S.E.2d 879, 224 Va. 206, 1982 Va. LEXIS 283
CourtSupreme Court of Virginia
DecidedSeptember 9, 1982
DocketRecord 800887
StatusPublished
Cited by26 cases

This text of 294 S.E.2d 879 (Waskey v. Lewis) 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
Waskey v. Lewis, 294 S.E.2d 879, 224 Va. 206, 1982 Va. LEXIS 283 (Va. 1982).

Opinion

RUSSELL, J.,

delivered the opinion of the Court.

In this case we must decide whether a recorded right of way, granted “without let or hindrance,” may be restricted by gates erected by the owner of the servient tenement. Appellees Lewis, Powell and Green, owners and tenant of a dominant tenement, brought a chancery suit against appellant Waskey, owner of the servient tenement, seeking the removal of certain gates and gateposts which Waskey had erected upon a right of way which crossed his land. The trial court found the right of way to be six *209 teen feet wide, enjoined Waskey from erecting any gates or obstructions thereon, and retained the case on the docket for the determination of damages. We affirm the decree.

In a partition deed dated September 17, 1919, Waskey’s predecessor in title conveyed to the predecessor in title of appellees Lewis and Powell, three tracts aggregating 287.7 acres in Brunswick County. The conveyance included an appurtenant right of way over an existing road through the grantor’s remaining land. The conveyance referred to a plat, but did not specify the width of the easement. The plat was present at trial and was referred to by counsel and the trial court. It was not, however, introduced in evidence and is not contained in the record. The deed provides:

The said parties of the first and of the second and of the third parts do hereby mutually agree and covenant that that certain road which, as the same appears delineated on the said plat, extends through the said tract hereinabove conveyed by the said parties of the second and of the third parts to the to the (sic) said N.T. Lewis, and the said tract herein-above conveyed by the said parties of the first and of the second parts to the said W.A. Lewis, to the said tract herein-above conveyed by the parties of the first and of the third parts to the said Ashton S. Lewis shall be and remain perpetually a right of way, as at present located and defined, appurtenant to the three said parcels of land hereinabove mentioned containing 95.9 acres, each, and shall be perpetually accessible to, and available by, the present and future owners, occupiers, and tenants of all and singular the said premises without let or hindrance on the part of any person whomsoever: and the said parties do further mutually agree and undertake for themselves, their heirs, and assigns that this covenant and agreement shall be, and the same is hereby constituted, a covenant that shall run with all and singular the said lands: . . .

The owners of the dominant tenement have used this right of way continuously as a farm road and as access to State Route 644 since 1915. In 1973, Waskey became the owner of the servient tenement. In 1976, he erected an electric fence across the road to enclose his cattle. The electric fence carried approximately 800 volts and, according to the evidence, proved fatal to a mule which *210 strayed through it. Lewis drove through it with a tractor. His act resulted in proceedings against him in the general district court. Thereafter Waskey replaced the electric fence with a gate. In 1977 he placed three additional gates farther along the road where, he testified, he intended to erect cross-fences. No cross-fences had been erected, however, when the case came to trial over two years later. The gates then stood as isolated obstructions, crossing the road at three points beyond the entrance gate. All of the gates were operated by hand.

In October 1977, Waskey placed large padlocks on all the gates. He mailed keys to the appellees Lewis and Powell by registered mail, which they refused to accept at the Post Office. He later unlocked the three inner gates. The outer gate remained locked at the time of trial.

The gateposts are very substantial, consisting of eight deeply buried sections of creosoted “light line poles” spaced twelve feet apart. Appellee Green, a tenant of Lewis and Powell, testified that he had formerly used a combine fourteen feet wide, in connection with the grain crops, but that the gateposts were now too close together to permit its passage along the right of way.

Appellant contends that the case is controlled by Code § 33.1-202:

Landowners may erect and maintain gates across private roads. — Any person owning land over which another or others have a private road or right-of-way may, except when it is otherwise provided by contract, erect and maintain gates across such roads or right-of-way at all points at which fences extend to such roads on each side thereof; provided, however, that a court of competent jurisdiction may, upon petition, where it is alleged and proved by petitioner that the gates have been willfully and maliciously erected, may require that said landowner to make such changes therein as may be necessary and reasonable in the use of said roads for both the landowner and the petitioner.

Appellees respond that the words “without let or hindrance,” contained in the grant of the right of way, constitute an exception “otherwise provided by contract,” which removes this case from the operation of the statute. We agree.

*211 Appellees argue that the phrase “without let or hindrance” prohibits any obstruction of free passage. The term “let,” in conveyancing, has the same meaning as “hindrance.” Gustafson v. Ursales, 3 Ohio App. 136, 139 (1914). Black’s Law Dictionary 1048, (Rev. 4th Ed. 1968). The verb “hinder” is defined: “(vt) ... to make slow or difficult the course or progress of: RETARD, HAMPER . . . hold back: prevent, check . . . (vi) to delay, impede, or prevent action: be a hindrance.” Webster’s Third New International Dictionary 1070 (1976). Thus the expression, while including the concept of a permanent obstruction, is also broad enough to include something far less. Unlike a cattle guard, a gate requires the traveller to stop, alight, open it, reenter his vehicle, move it past the gate, stop again, close the gate, and again reenter the vehicle.

“In the construction of language contained in a deed the grantor must generally be considered as having intended to convey all that the language he employed is capable of passing to the grantee, and where the description admits of two constructions, it will be construed most favorably to the grantee.” Hamlin v. Pandapas, 197 Va. 659, 664, 90 S.E.2d 829, 833 (1956); cf Bunn v. Offutt, 216 Va. 681, 685, 222 S.E.2d 522, 526 (1976). Applying these principles, we hold that the term “without let or hindrance,” contained in the language granting a right of way appurtenant to lands conveyed, precludes the erection of manually-operated gates.

We now turn to the trial court’s finding that the easement had a width of sixteen feet. Where no width is expressed in the instrument creating a new right of way, the determination of width is made by reference to the intention of the parties to the grant, as determined by the circumstances existing at the time and affecting the property. Annot., 28 A.L.R.2d 253 (1953).

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Bluebook (online)
294 S.E.2d 879, 224 Va. 206, 1982 Va. LEXIS 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waskey-v-lewis-va-1982.