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Forbes v. Cantwell, Record No. 0212-22-3 (Va. Ct. App. Sept. 12, 2023)

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September 12, 2023

By: Juli M. Porto

Virginia Appellate Law Blog

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In a split decision, the Court of Appeals discusses easements and the parol evidence rule.


Facts. In 2005, Francis and Donna Cantwell owned land on Stoneview Circle in Lexington, Virginia, which they split into two lots: Lot 6 and Lot 7. When they sold Lot 7, they included the following easement in the deed:

“The Grantors do hereby RESERVE unto themselves, their heirs and successors in title, a 40-foot easement along the westerly boundary of Lot 7, for the purpose [of] providing ingress and egress over existing driveway, fencing and landscape buffer for the benefit of Lot 6; said easement being shown on the aforesaid plat.”

But no plat was attached. James and Desirea Forbes eventually bought Lot 6 (the dominant estate) and Jason Cantwell, Francis and Donna’s son, eventually bought Lot 7 (the servient estate).

The Forbeses and Cantwell went to court over several issues related to the easement, including whether Cantwell was required to remove fencing and gates within the easement area. The circuit court held a trial to determine the scope of the easement, interpret the express easement, and resolve the parties’ claims. At trial, the court held that the easement was ambiguous and allowed parol evidence to help interpret it. This included testimony from Francis, the drafter of the easement, about the intent and meaning of the language “fencing and landscape buffer.” Francis testified that the intent of that phrase was to ensure the privacy of Lot 6’s tenants by ensuring that existing landscaping and fencing would not be removed.

The trial court made several rulings, including that the ingress/egress easement was less than 40 feet wide; “the landscape component[s] of the easement” and “the fencing component of the easement” both extend 40 feet from the boundary with Lot 7 and constitute a negative easement; and Cantwell could fence within the easement area but could not install gates on the existing driveway. Forbes and Cantwell both appealed.


Issues. (1) Whether parol evidence was properly admitted. (2) Whether the deed contained a negative easement. (3) Whether Cantwell was entitled to erect fencing within the easement. (4) Whether Cantwell was entitled to construct gates across the easement.


Holdings. (1) Parol evidence was proper to determine the scope of the fencing and landscape easement because the scope of that component of the easement was ambiguous, but improper to describe the size of the ingress/egress easement because the size was unambiguous. (2) No. The deed and parol evidence established that an affirmative easement existed for Lot 6’s benefit over Lot 7’s servient tract. (3) Yes. It obstructed the Forbeses’ reasonable use of the ingress/egress easement. (4) No. His current gates were intended to interfere with the Forbeses’ use of the ingress/egress easement.


Notes. (1) Like all written documents, when interpreting a deed, a trial court may only look to parol evidence where the language of the deed is ambiguous. As an example, if the deed does not state the purpose of the easement, 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.” Here, the deed was unambiguous with respect to the size of the ingress/egress easement—40 feet wide—so parol evidence was not admissible as to that issue. (The dissent would have allowed parol evidence because the easement’s stated purpose to “provid[e] ingress and egress over existing driveway” is ambiguous. The deed does not describe the width of the driveway.) Parol evidence was admissible to establish the scope of the fencing and landscape component of the easement, however, because the scope of the easement was ambiguous. The term “fencing and landscape buffer” is not a phrase defined in any prior Virginia case.

(2) Affirmative easements permit the dominant estate owner to use the servient tract in a particular manner or for a particular purpose. Negative easements, or servitudes, on the other hand, do not create these entitlements. They only entitle the owner of the dominant tract to “the legal right to object to a use of the servient tract by its owner inconsistent with the terms of the easement.” Here, fencing rights and landscape buffering were affirmatively created by the easement. Since the scope of the fencing and landscape component of the easement is ambiguous, the Court of Appeals remands the case to the circuit court to establish that scope after hearing parol evidence. (The dissent objects to these directions for three reasons. First, since the trial court incorrectly held that the easement was a servitude, it will have to correct this on remand and can address the scope of the easement in that order. Second, the parties already had the opportunity to present parole evidence on the issue and did. Finally, the Forbeses did not ask that the record be reopened on remand in their assignments of error, therefore the dissent does not believe that the court can order it.)

(3) An easement “is a privilege to use the land of another in a particular manner and for a particular purpose” but does not give the dominant estate owner an ownership interest in the servient tract. When an easement is granted, it “must be used in a reasonable manner confined to the terms and purposes of the grant; it must not unnecessarily injure the rights of the other party; its use must be reasonable; and its use must be necessary for its reasonable and proper enjoyment.” Here, the Forbeses were granted a privilege to use Cantwell’s land within the bounds of the easement, so Cantwell “must part with those rights necessary to fulfill the intent of the easement.” Where an easement is of a certain width, “that width cannot be encroached upon.” Since the portion of Cantwell’s fence within the easement obstructed its use, it had to be removed; the fencing along the border of the easement did not obstruct its use, and was therefore permissible.

(4) A servient estate owner may erect a gate “solely for the dominant tenant’s use and convenience.” Code § 33.2‑110 states that a gate erected over a right-of-way easement may not obstruct any part of the right-of-way. Further, such a gate must remain unlocked and must be able to be “easily opened and closed.” Here, the trial court found that Cantwell’s gates were intended to and did impede the Forbeses’ use of the easement, thus his current gates were not legal. The Court of Appeals did not foreclose the possibility, however, that he could build different gates in the future that complied with Virginia law


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