Boxley v. Crouse, Record No. 0183-23-3 (Va. Ct. App. Dec. 28, 2023)
In a rare Thursday opinion, the Court of Appeals discusses easements.
Facts. Lisa Boxley and Estel and Vickie Crouse owned adjoining parcels of land. To access their property from State Route 220, the Crouses had to drive down Hawk Trail, which cut across the Boxley lot. The first use of Hawk Trail to access the Crouse lot was in 1976 by the predecessor owners of the Crouse lot, the Pleckers. They never asked permission to use Hawk Trail nor were they prohibited from using it. The Pleckers also maintained, improved, and widened portions of Hawk Trail. In 1988 the Pleckers sold their lot to DeWitt, who in turn sold the to the Crouses in 1989. Like the Pleckers, the Crouses never asked permission to use Hawk Trail nor were they prohibited from using it. In 1995, the predecessor owner of the Boxley lot, Corbett, built a lockable gate on his property across Hawk Trail. Corbett never locked the gate but mailed the Crouses a key to the gate with no letter or explanation. Boxley obtained the lot through a trust in 2014. In 2020, she installed a different lock on the gate and did not give the Crouses a key.
The Crouses filed an action against Boxley seeking a declaratory judgment that they held a prescriptive easement across Hawk Trail and an injunction to remove the gate altogether. The trial court granted the Crouses’ requested relief and ordered Boxley to remove the gate under Code § 33.2‑110(A). Boxley appealed.
Issues. (1) Whether the Crouses held a prescriptive easement across Hawk Trail. (2) Whether Code § 33.2‑110(A) required Boxley to remove the gate across Hawk Trail.
Holdings. (1) Yes. (2) Yes. Servient landowners may only erect gates across rights of way if the gate has fences that extend to each side of the right of way.
Notes. (1) A person who claims a prescriptive easement has the burden of proving by clear and convincing evidence that their use of the property was “adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the land over which it passes, and that the use has continued for at least 20 years. To establish an adverse claim of right, the claimant must show a “hostile” possession, or an intent to appropriate and use the land as their own to the exclusion of all others. Permission to occupy the property “negates hostility,” but if the use is “open, visible, and continuous throughout the required prescriptive period,” there is a presumption of hostility. This presumption, however, cannot be rebutted with solely circumstantial evidence.
Here, the Crouses established their continuous and uninterrupted use of Hawk Trail for at least 20 years, and that this use was adverse to Corbett’s, and then Boxley’s, property rights. The Crouses were entitled to a presumption that their use “arose adversely” because their use was open, visible, and continuous. The only evidence that Boxley offered to establish that Corbett permitted the Crouses to use Hawk Trail was that he “mailed the Crouses a key to a gate that was never locked. This circumstantial evidence was insufficient to rebut the presumption in favor of the Crouses.
(2) This one is easy and was decided by the Supreme Court in Ridgewell v. Brasco Bay Corp., 254 Va. 458 (1997). In that case, the Court interpreted the predecessor of Code § 33.2-110 and held that because a servient landowner did not have fences that extended to each side of the right of way, they did not establish a right to erect a gate.