United States v. Blackman

Present: All the Justices

UNITED STATES OF AMERICA
                                             OPINION BY
v.   Record No. 042404            JUSTICE LAWRENCE L. KOONTZ, JR.
                                            June 9, 2005
PETER F. BLACKMAN

       UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED STATES
        DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA


      Pursuant to Article VI, Section 1 of the Constitution of

Virginia and our Rule 5:42, the United States District Court for

the Western District of Virginia (“district court”), by its

order entered October 21, 2004, certified to this Court the

following questions of law:

      A. In Virginia in 1973, would a conveyance of a
      negative easement in gross by a private property owner
      to a private party for the purpose of land
      conservation and historic preservation be valid?

      B. In Virginia in 1973, would it be valid for a group
      of private property owners to grant to a private
      grantee restrictions for the purpose of land
      conservation and historic preservation on their
      individually-owned parcels of property, when (1) the
      property was not being transferred by a common
      grantor, (2) each grant was made in consideration of
      similar grants to the grantee, and (3) the grantee did
      not own any property benefited by the restrictions?

By order entered January 3, 2005, we accepted the certified

questions.

                              BACKGROUND

      The relevant facts are recited in the order of

certification as follows:
     The Green Springs Historic District (the
“District”) is an area of roughly 14,000 acres in
Louisa County that was settled in the 1700s. Much of
the land in this area has historically been used for
agricultural purposes, and this agricultural setting
remains today. Because the land has been continuously
farmed for almost three centuries, many of the homes
and farms have been preserved in their original
context with little alteration.

     In the early 1970s, the Commonwealth of Virginia
bought two hundred acres of land in the Green Springs
area with the intention of building a prison. There
was much local opposition, and some landowners
expressed the belief that the prison would damage the
character of their historic community. Reacting to
this opposition, the then-governor of Virginia
announced in 1972 that the state would not build the
prison facility in the area if that area could be
preserved. In response to the governor’s challenge,
local citizens organized a non-profit group dubbed
Historic Green Springs, Inc. (“HGSI”), which obtained
donations of easements for land conservation and
historic preservation from landowners and initiated an
effort to have the area designated as a National
Historic Landmark District. The Green Springs
Historic District was listed on the National Register
of Historic Places in March of 1973, and was
ultimately designated as a National Historic Landmark
in 1974. See Historic Green Springs, Inc. v.
Bergland, 497 F.Supp 839, 842-43 (E.D. Va. 1980)
(discussing the history of the District).

     By a “Deed of Easement” dated March 19, 1973 (the
“Easement”), D.L. Atkins and Frances Atkins granted to
HGSI an assignable easement over several parcels of
their property, including Eastern View Farm. The
Easement states in part that “in consideration of the
grant to the Grantee of similar easements in gross by
other owners of land in the said Green Springs
Historic District for similar purposes, the Grantors
[D.L. Atkins and Frances Atkins] do hereby grant and
convey to the Grantee [HGSI] an easement in gross
restricting in perpetuity, in the manner hereinafter
set forth, the use of the following described tracts
of land, together with the improvements erected
thereon.” In 1978, HGSI decided to convey its entire


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portfolio of easements to the United States. In the
resulting deed of easement to the United States, all
of the original grantors of similar easements within
the District acknowledged their agreement to the
conveyance by affixing their signatures to the deed.
The National Park Service (“NPS”) now administers
these easements, including the Easement at issue, on
behalf of the United States as part of the Green
Springs National Historic Landmark District. The
Easement at issue provides that the manor house on
Eastern View Farm:

     will be maintained and preserved in its
     present state as nearly as practicable,
     though structural changes, alterations,
     additions, or improvements as would not in
     the opinion of the Grantee fundamentally
     alter its historic character or its setting
     may be made thereto by the owner, provided
     that the prior written approval of the
     Grantee to such change, alteration,
     addition, or improvements shall have been
     obtained. This provision applies as well to
     those 18th and 19th Century outbuildings
     located on the described property.

     Peter F. Blackman (“Blackman”) purchased Eastern
View Farm on July 1, 2002. Blackman wishes to
renovate and rehabilitate the manor house.
Specifically, Blackman, inter alia, seeks to remove
the existing front porch on the manor house, replace
the siding, and create an addition. In support of
these intended alternations, Blackman submitted
several sets of renovation plans to the NPS for
review, but the NPS repeatedly denied certain aspects
of his plans. Rather than working with the NPS for
final approval of his plan, Blackman’s attorney stated
in a latter dated January 13, 2004 that Blackman would
“commence the Rehabilitation at a time of his
choosing, without further notice to [NPS], in
accordance with the attached elevations.”
Subsequently, Blackman removed the porch from his
house. The United States filed the complaint in this
case June 14, 2004, and on June 16, 2004 Judge James
C. Turk issued a temporary restraining order
restraining Blackman from “commencing and/or
continuing renovation work to the manor house located


                           3
     on the Eastern View Parcel, in the Green Springs
     National Historic Landmark District, unless he has
     first obtained written approval from the National Park
     Service.”

          In defense of his actions, Blackman argues that,
     inter alia, the original deed of easement granted to
     HGSI was invalid because at the time it was
     purportedly created, Virginia law did not recognize
     any kind of negative easement in gross, including such
     easements for the purpose of land conservation and
     historic preservation.

     In its order, the district court correctly states that we

have not directly addressed the issue of the validity of

negative easements in gross in our prior decisions.   While also

correctly noting that only certain types of easements were

recognized at common law, the district court references the

statement in Tardy v. Creasy, 81 Va. (6 Hans.) 553, 557 (1886),

that “there are many other easements which have been recognized,

and some of them have been of a novel kind,” for the proposition

that prior to 1973 “Tardy leaves open the possibility that other

easements, including negative easements related to land

conservation and historic preservation, would be valid if

sufficiently related to the land.”

                           DISCUSSION

     The first question certified by the district court presents

the issue of law whether, in 1973, the law of Virginia permitted

an individual landowner to grant a negative easement in gross to

a third party for the purpose of land conservation and historic




                                4
preservation.   As indicated by the district court, if the law of

this Commonwealth did not recognize the validity of such an

easement at that time, then the purported property restrictions

granted to HGSI are invalid and would be unenforceable by HGSI’s

transferee, the United States.

     Although previously we have not addressed the issue of the

validity of a negative easement in gross under the law existing

in 1973, the issue is of considerable significance beyond the

specific historic district involved in this case.   By the brief

of amici curiae filed in this case, we are advised that at least

seven other charitable entities hold conservation or historic

preservation easements, many of them easements in gross,

conveyed prior to 1973.∗   Underlying the issue is a degree of

apparent conflict between the common law preference for

unrestricted rights of ownership of real property and the public

policy of this Commonwealth as expressed in Article XI of the

Constitution of Virginia, ratified by the people of this

Commonwealth in 1970, that “it shall be the policy of this


     ∗
       The brief was filed on behalf of Historic Green Springs,
Inc., Association for the Preservation of Virginia Antiquities,
The Chesapeake Bay Foundation, Inc., Historic Richmond
Foundation, National Trust for Historic Preservation in the
United States, The Nature Conservancy, Piedmont Environmental
Council, and the Waterford Foundation. These organizations
assert that thousands of acres and numerous historically
significant sites and buildings located in this Commonwealth are
currently protected by easements of the type at issue in this
case.

                                 5
Commonwealth to conserve . . . its historical sites and

buildings.”   Accordingly, we take this opportunity to discuss in

some detail the relevant law.

     “An easement is ‘a privilege without profit, which the

owner of one tenement has a right to enjoy in respect of that

tenement in or over the tenement of another person; by reason

whereof the latter is obliged to suffer, or refrain from doing

something on his own tenement for the advantage of the

former.’ ”    Amstutz v. Everett Jones Lumber Corp., 268 Va. 551,

559, 604 S.E.2d 437, 441 (2004) (quoting Stevenson v. Wallace,

68 Va. (27 Gratt.) 77, 87 (1876); accord Brown v. Haley, 233 Va.

210, 216, 355 S.E.2d 563, 567-68 (1987).   Easements are

described as being “affirmative” easements when they convey

privileges on the part of one person or owner of land (the

“dominant tract”) to use the land of another (the “servient

tract”) in a particular manner or for a particular purpose.

Easements are described as being “negative” when they convey

rights to demand that the owner of the servient tract refrain

from certain otherwise permissible uses of his own land.   Bunn

v. Offutt, 216 Va. 681, 684, 222 S.E.2d 522, 525 (1976).

     Negative easements, also known as servitudes, do not bestow

upon the owner of the dominant tract the right to travel

physically upon the servient tract, which is the feature common

to all affirmative easements, but only the legal right to object


                                  6
to a use of the servient tract by its owner inconsistent with

the terms of the easement.   In this sense, negative easements

have been described as consisting solely of “a veto power.”

Prospect Dev. Co. v. Bershader, 258 Va. 75, 89, 515 S.E.2d 291,

299 (1999).

     At common law, an owner of land was not permitted at his

pleasure to create easements of every novel character and annex

them to the land so that the land would be burdened with the

easement when the land was conveyed to subsequent grantees.

Rather, the landowner was limited to the creation of easements

permitted by the common law or by statute.   See Tardy, 81 Va. (6

Hans.) at 557.   The traditional negative easements recognized at

common law were those created to protect the flow of air, light,

and artificial streams of water, and to ensure the subjacent and

lateral support of buildings or land.    See Andrew Dana & Michael

Ramsey, Conservation Easements and the Common Law, 8 Stan.

Envtl. L.J. 2, 13 (1989); see also Tardy, 81 Va. (6 Hans.) at

557, 563.

     Easements, whether affirmative or negative, are classified

as either “appurtenant” or “in gross.”   An easement appurtenant,

also known as a pure easement, has both a dominant and a

servient tract and is capable of being transferred or inherited.

It frequently is said that an easement appurtenant “runs with

the land,” which is to say that the benefit conveyed by or the


                                 7
duty owed under the easement passes with the ownership of the

land to which it is appurtenant.       See Greenan v. Solomon, 252

Va. 50, 54, 472 S.E.2d 54, 57 (1996); Lester Coal Corp. v.

Lester, 203 Va. 93, 97, 122 S.E.2d 901, 904 (1961).      The four

negative easements traditionally recognized at common law are,

by their nature, easements appurtenant, as their intent is to

benefit an adjoining or nearby parcel of land.      See Federico

Cheever, Environmental Law: Public Good and Private Magic in the

Law of Land Trusts and Conservation Easements: A Happy Present

and a Troubled Future, 73 Denv. U. L. Rev. 1077, 1081 (1996).

     In contrast, an easement in gross, sometimes called a

personal easement, is an easement “which is not appurtenant to

any estate in land, but in which the servitude is imposed upon

land with the benefit thereof running to an individual.”      Lester

Coal Corp., 203 Va. at 97, 122 S.E.2d at 904.      At common law,

easements in gross were strongly disfavored because they were

viewed as interfering with the free use of land.      Thus, the

common law rule of long standing is that an easement is “never

presumed to be in gross when it [can] fairly be construed to be

appurtenant to land.”   French v. Williams, 82 Va. 462, 468, 4

S.E. 591, 594 (1886).   For an easement to be treated as being in

gross, the deed or other instrument granting the easement must

plainly manifest that the parties so intended.      Prospect Dev.

Co., 258 Va. at 90, 515 S.E.2d at 299.


                                   8
     Because easements in gross were disfavored by the common

law, they could neither be transferred by the original grantee

nor pass by inheritance.   Lester Coal Corp., 203 Va. at 97, 122

S.E.2d at 904.   By statute, however, Virginia long ago abrogated

common law restrictions on the transfer of interests in land “by

declaring that any interest in or claim to real estate may be

disposed of by deed or will.”   Carrington v. Goddin, 54 Va. (13

Gratt.) 587, 599-600 (1857) (internal quotation marks omitted).

Pursuant to this statutory change in the common law rule,

currently embodied in Code § 55-6, we have recognized that an

affirmative easement in gross is an interest in land that may be

disposed of by deed or will.    City of Richmond v. Richmond Sand

& Gravel Co., 123 Va. 1, 9, 96 S.E. 204, 207 (1918).    Following

this Court’s decision in Lester Coal Corp., which in dictum made

reference to the common law rule that easements in gross

remained non-transferable by deed or will, 203 Va. at 97, 122

S.E.2d at 904, Code § 55-6 was amended “to make clear the

transferability of easements in gross.”   1962 Va. Acts ch. 169.

Since 1962, Code § 55-6, in pertinent part, has expressly

provided that “[a]ny interest in or claim to real estate,

including easements in gross, may be disposed of by deed or

will.” (Emphasis added).   We subsequently acknowledged the

intent of this statutory amendment in Corbett v. Ruben, 223 Va.




                                  9
468, 472 n.2, 290 S.E.2d 847, 849 n.2 (1982) and Hise v. BARC

Elec. Coop., 254 Va. 341, 344, 492 S.E.2d 154, 157 (1997).

     Code § 55-6 unambiguously speaks to “easements in gross” as

interests in real estate capable of disposition by deed or will.

There is no suggestion in this language that the statute was

intended to apply only to affirmative easements in gross and not

to negative easements in gross.    The significance of this

statutory change in the common law is manifest.   Easements in

gross, whether affirmative or negative, are now recognized

interests in real property, rather than merely personal

covenants not capable of being disposed of by deed or will as

was the case under common law.    Moreover, as pertinent to the

present inquiry, such was the case well before 1973 in this

Commonwealth.

     The 1962 amendment and clarification of Code § 55-6 with

regard to the transferability of easements in gross has

facilitated, in part, Virginia’s long recognition of the value

of conserving and preserving the natural beauty and historic

sites and buildings in which it richly abounds.   In 1966, the

General Assembly enacted the Open-Space Land Act, 1966 Va. Acts

ch. 461.   This Act, currently found in Code §§ 10.1-1700 through

-1705, is intended to encourage the acquisition by certain

public bodies of fee simple title or “easements in gross or such

other interests in real estate” that are designed to maintain


                                  10
the preservation or provision of open-space land.    Code § 10.1-

1703.    By definition, open-space land includes land that is

preserved for “historic or scenic purposes.”    Code § 10.1-1700.

Additionally, in 1966, the General Assembly enacted statutes

creating the Virginia Outdoors Foundation, 1966 Va. Acts. ch.

525, and the Virginia Historic Landmarks Commission, 1966 Va.

Acts ch. 632.    As currently expressed in Code § 10.1-1800, the

purpose of the Virginia Outdoors Foundation is “to promote the

preservation of open-space lands.”     The Virginia Historic

Landmarks Commission, now known as the Virginia Board of

Historic Resources, was charged with the designation of historic

landmarks and districts.    1966 Va. Acts ch. 632, § 4(A).     These

statutes evince a strong public policy in favor of land

conservation and preservation of historic sites and buildings.

        As noted above, this public policy was expressly embodied

in Article XI of the Constitution of Virginia which, since 1970,

has provided:

             § 1. To the end that the people have clean air,
        pure water, and the use and enjoyment for recreation
        of adequate public lands, waters, and other natural
        resources, it shall be the policy of the Commonwealth
        to conserve, develop, and utilize its natural
        resources, its public lands, and its historical sites
        and buildings. Further, it shall be the
        Commonwealth’s policy to protect its atmosphere,
        lands, and waters from pollution, impairment, or
        destruction, for the benefit, enjoyment, and general
        welfare of the people of the Commonwealth.




                                  11
          § 2. In the furtherance of such policy, the
     General Assembly may undertake the conservation,
     development, or utilization of lands or natural
     resources of the Commonwealth, the acquisition and
     protection of historical sites and buildings, and the
     protection of its atmosphere, lands, and waters from
     pollution, impairment, or destruction, by agencies of
     the Commonwealth or by the creation of public
     authorities, or by leases or other contracts with
     agencies of the United States, with other states, with
     units of government in the Commonwealth, or with
     private persons or corporations.

     In further support of this public policy, the General

Assembly in 1988 enacted the Virginia Conservation Easement Act

(“VCEA”), Code §§ 10.1-1009 through -1016.   In pertinent part,

as defined in the VCEA a conservation easement is “a

nonpossessory interest of a holder in real property, whether

easement appurtenant or in gross . . . the purposes of which

include retaining or protecting natural or open-space values of

real property . . . or preserving the historical, architectural

or archaeological aspects of real property.”   Code § 10.1-1009.

     Mindful of this background, we now consider the validity of

the negative easement in gross granted to HGSI by the Atkinses

in the 1973 deed and subsequently conveyed, with the Atkinses’

concurrence, to the United States in 1978.   The validity of that

easement is dependent upon whether it was a type of negative

easement that would have been recognized by the law of Virginia

in 1973.   For the reasons that follow, we conclude that the 1973

deed created a valid easement.



                                 12
        Blackman contends that a negative easement in gross for the

purpose of land conservation and historic preservation was not

valid in this Commonwealth until 1988 with the enactment of the

VCEA.    The thrust of this contention is that the VCEA would have

been unnecessary if such easements were already valid.    We are

not persuaded by this contention.

        Blackman’s contention suggests an analysis devoid of due

consideration of the pertinent statutory and constitutional

provisions in effect in the Commonwealth long before the 1988

enactment of the VCEA.    As discussed supra, Code § 55-6 since at

least 1962 has recognized easements in gross, whether

affirmative or negative, as interests in real property capable

of being transferred by deed or will.    Because easements in

gross were not transferable at common law and, indeed, were

strongly disfavored, it is self-evident that this statute

materially changed the common law and recognized “interest[s] in

or claim[s] to real estate” beyond those traditionally

recognized at common law.     Moreover, in the subsequent 1966

enactment of the Open-Space Land Act, the General Assembly

specifically recognized easements in gross when it authorized

acquisition by certain public bodies of easements in gross in

real property which is preserved for historic purposes.    Such

easements under that Act, under certain circumstances, would be

negative easements in gross.    Accordingly, while we continue to


                                  13
be of opinion that “the law will not permit a land-owner to

create easements of every novel character and attach them to the

soil,” Tardy, 81 Va. (6 Hans.) at 557, the easement at issue in

the present case is not of a novel character and is consistent

with the statutory recognition of negative easements in gross

for conservation and historic purposes.

     More specifically, it does not necessarily follow that

conservation easements were not valid in this Commonwealth prior

to the enactment of the VCEA.    There is ample evidence that

similar interests in land were already recognized by statute

under the Open-Space Land Act.   Moreover, as referenced by the

amici curiae in their brief, it is a matter of public record

that conservation easements or similar interests in land, far

from being unique to the Historic Green Springs conservation

effort, have been in common use in Virginia for many years

before the adoption of the VCEA.

     In enacting the VCEA, the General Assembly undertook to

comprehensively address various land interests that can be used

for conserving and preserving the natural and historical nature

of property.   In so doing, the General Assembly addressed the

use of such easements in a manner consistent with Code § 55-6,

the Open-Space Land Act, and the public policy favoring land

conservation and preservation of historic sites and buildings in

the Commonwealth as expressed in the Constitution of Virginia.


                                 14
The readily apparent purpose of the VCEA was to codify and

consolidate the law of conservation easements to promote the

granting of such easements to charitable organizations.     When so

viewed, it is clear that the VCEA did not create a new right to

burden land by a negative easement in gross for the purpose of

land conservation and historic preservation.   Rather, it

facilitated the continued creation of such easements by

providing a clear statutory framework under which tax exemptions

are made available to charitable organizations devoted to those

purposes and tax benefits and incentives are provided to the

grantors of such easements.

     The fact that such easements were being conveyed without

these benefits and incentives prior to the enactment of the VCEA

does not support Blackman’s contention that these easements were

invalid at that time.   To the contrary, Virginia not only was

committed to encouraging and supporting land conservation and

the preservation of historic sites and buildings in the

Commonwealth, as evidenced by the constitutional and statutory

expressions of that public policy discussed supra, but also

recognized negative easements in gross created for these

purposes as valid in 1973.    Indeed, as noted by the district

court, the granting of conservation easements by the landowners

in the Historic Green Springs District was the direct result of




                                 15
the encouragement by the Governor for the express purpose of

preserving the historic and natural beauty of that unique area.

     For these reasons, we hold that the law of Virginia in 1973

did recognize as valid a negative easement in gross created for

the purpose of land conservation and historic preservation.

Accordingly, we answer the first certified question in the

affirmative.

     Because we deem our answer to the first certified question

to be dispositive, we will not address the second certified

question.

               First certified question answered in the affirmative.




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