Palmer v. R. A. Yancey Lumber Corp.

**143Joanna Palmer challenges the circuit court's order approving modifications to an easement by necessity crossing her property. The court did so after finding that the modifications are reasonably necessary for the beneficial use of property owned by R.A. Yancey Lumber Corporation ("Yancey"). We affirm the judgment of the circuit court.

I. BACKGROUND

The parties stipulated to the following facts. Palmer owns approximately 44 acres located in Albemarle County adjoining State Route 736 (the "Palmer Property"). Yancey owns 317 contiguous acres located in Albemarle County and Nelson County (the "Yancey Property"). The Palmer Property and the Yancey Property derived from the common ownership of Richard Richardson, **144dating back to the time of his death in 1828.1 Richardson's property was subdivided at that time with the probate of his will and the Yancey Property was left landlocked. That is to say, there was no access from the Yancey Property to a public road by an express easement or any other means.

Consequently, when Richardson's property was subdivided, "an implied easement by necessity for access and reasonable use and enjoyment of the Yancey Property was created by the law burdening the Palmer Property and for the benefit of the Yancey Property." A private road (the "Access Road") has long been and continues to be "the sole means of ingress and egress from the Yancey Property to a public road," which "comprises some or all of Yancey's easement by necessity." The Access Road runs from the corner of the Yancey Property through two intervening tracts of land (the "Kiser Property" and the "Campbell Property"2 owned by third parties), and then through the Palmer Property to State Route 736. Yancey and its predecessors have used the Access Road "for ingress and egress purposes, including but not limited to access for timbering and timber related activity," and "[t]he ability to timber the property is reasonably necessary for the enjoyment of the Yancey Property." In their final stipulation, however, Yancey and Palmer state that they disagree over "the size and scope of the easement by necessity."

The disagreement arose when Yancey prepared to presently harvest timber from the Yancey Property. It last timbered the property in the late 1980's. Its plans are to cut *745approximately 83 acres of pines and then cut some of the mixed hardwood in the near future. Yancey also wants to haul the logs using tractor-trailers instead of ten-wheel logging trucks-which are the kind of trucks that Yancey's neighbor had recently used for four to five weeks to haul timber from the Campbell Property. This would necessitate improving and widening the Access Road in certain locations. Yancey was given an express nonexclusive easement to use the Access Road for ingress and egress of vehicles, "including without limitation customarily used tree harvesting equipment and transports," **145by the owners of the Kiser Property and the Campbell Property. Palmer rejected Yancey's request for such an express easement over the Palmer Property.

Yancey thereafter filed the instant declaratory judgment action against Palmer alleging, among other things, the facts set forth in the above-stated stipulations, along with the allegation that "[t]imbering is the best and highest use of the Yancey Property." Yancey further alleged that it is thus "entitled to use the Access Road for ingress and egress for all purposes, including timbering ... as an easement by necessity."3 Yancey asked the circuit court to (i) declare that it possesses such an easement as a "permanent easement, wide enough for ingress and egress of all vehicles [used for, among other purposes,] timbering," and (ii) enjoin Palmer from interfering with its right to so use the easement.

Prior to trial, the parties agreed to the above-stated stipulations and then a two-day bench trial was conducted. In its case in chief, Yancey presented the testimony of its president, Emmett Yancey ("Emmett"), who explained Yancey's plans for timbering both the pines and mixed hardwoods on the Yancey property. This includes Yancey's desire to modify the Access Road in order to enable the company to utilize tractor-trailers for transporting the logs from the Yancey Property to State Route 736, and from there to its sawmill at another location. Using tractor-trailers, according to Emmett, is the most efficient and cost-effective way to haul the logs-as opposed to using the shorter ten-wheel logging trucks. Moreover, it is the only way to haul the pine logs at full-length, which is the size best suited for Yancey's sawmill equipment and most demanded in the lumber market.

Yancey presented the testimony of William Foster, a land surveyor, who provided measurements of the Access Road on the Palmer Property to assist in specifically identifying the location and width of the modifications that Yancey was seeking to make to the Access Road. Foster testified that the Access Road is 30 feet wide at the entrance of the Palmer Property where it adjoins State Route 736. The roadbed, according to Foster, then varied in width from as **146wide as 15 feet to as narrow as 8 feet at the rock outcroppings along the edge of the roadbed near the Campbell Property.

Larry Endsley, a procurement manager for a lumber manufacturer, American Hardwood Industries, with nearly 40 years of experience in the timber industry, testified for Yancey as an expert witness regarding this industry, and specifically the economics and logistics of timber removal. This included expertise in road construction and modification for transporting timber over private properties. According to Endsley, timber industry standards dictate the use of tractor-trailers for timbering the Yancey Property based on both the volume and type of timber that Yancey plans to harvest. He testified that, under these standards, ten-wheel logging trucks would only be appropriate for smaller timbering operations, like the recent one on the Campbell Property, for economic reasons.4 These standards, he further explained, also call for tractor-trailers to haul pine logs because the shorter ten wheel-trucks lack the capacity to haul pine logs at full-length. This part of his testimony essentially reiterated Emmett's earlier testimony.

*746Endsley also provided extensive testimony regarding his recommendations for modifying the Access Road over the Palmer Property for purposes of accommodating tractor-trailers. This would involve making various improvements, including widening that portion of the Access Road in three limited locations. As such, two-thirds of the Access Road over the Palmer Property would not be widened at all. Furthermore, according to Endsley, the Access Road needs to be widened at those locations, whether Yancey were to haul the timber by tractor-trailers or ten-wheel trucks, as the widths of the roadway at those locations are currently not suitable for even ten-wheel trucks.5

Finally, Yancey presented excerpts from Palmer's deposition. In those excerpts, Palmer indicated that she "absolutely" preferred that the Yancey Property be used for timbering as opposed to anything else. She further acknowledged that "you have to have access for large vehicles," and that it was "not possible to bring a tractor-trailer in without widening the [Access Road]." However, she testified that tractor-trailers, as opposed to ten-wheel logging **147trucks, "take it a step beyond" what she prefers to have "driving in front of [her] house," which is located approximately 40 to 50 feet from the Access Road (with a stream running between them) and approximately 300 feet from where the Access Road intersects with Route 736.

In defending against Yancey's action, Palmer did not offer any expert testimony to rebut Endsley's testimony. She offered only (i) her own lay testimony, consisting mainly of her objections to the proposed modifications to the Access Road for esthetic reasons; (ii) the lay testimony of a long-time friend, who was familiar with the Access Road because he had been Palmer's "house sitter" many times over the course of several years; and (iii) the lay testimony of a nearby neighbor, who in previous years had frequently walked to a spring near Palmer's house using the Access Road. Each of these witnesses described the condition of the Access Road as it appeared over several years and compared that to how it currently appears. They also described the logging truck traffic on the Access Road that they had observed on various occasions over the years. Palmer testified in particular about her recent observations of ten-wheel trucks hauling timber from the Campbell Property for a period of four to five weeks. Her neighbor added that this amounted to "heavy traffic."

Palmer's overall objection to Yancey's action was that its proposed modifications to the Access Road would result in negatively impacting the character of her property. More specifically, Palmer stated that she objected to, among other things, the entrance to her property being widened because she did not want it to look like a commercial entrance; to any trees being trimmed or removed; and to the removal of any rock outcroppings.

The circuit court took the matter under advisement and thereafter held a hearing to issue an oral ruling. The court rejected Palmer's argument that as a matter of law the easement by necessity could not be widened by order of the court without her consent. The court concluded that it did have such authority. The court then determined that, based upon the parties' stipulations of fact that Yancey possesses what has long been an easement by necessity along the Access Road over the Palmer Property, "the sole dispute before the [c]ourt is the scope of the easement by necessity." Quoting from **148Keen v. Paragon Jewel Coal Co., 203 Va. 175, 179, 122 S.E.2d 543, 546 (1961), the court stated that the type of traffic permitted for a dominant landowner utilizing an easement by necessity is "determined by the reasonable necessities for the enjoyment" of the dominant property. The court reasoned that the factual dispute in the present case thus centers on what is reasonably necessary for Yancey to transport and market its timber from the Yancey Property.

Applying this common law standard and relying heavily on Endsley's expert testimony, the circuit court made factual findings that it is reasonably necessary for Yancey to use tractor-trailers to transport the timber, and to, in turn, widen its easement to accommodate such use by making certain modifications *747to the Access Road on the Palmer Property. In reaching this decision, the court indicated that it was relying, at least in part, upon the timber industry standard calling for the use of tractor trailers for timbering large properties like the Yancey Property. The court also indicated its reliance upon the standard in the industry of using tractor-trailers for harvesting pines in particular because, as the court found, "they are so long and ten-wheelers simply cannot accommodate the length of the logs."

The circuit court then explained generally the modifications to the Access Road on the Palmer Property that it would approve, which included several but not all of the modifications recommended by Endsley. The primary modifications announced by the court at that time, as relevant to this appeal, were as follows: an increase in the width of the Access Road's entrance from State Route 736 by a few feet on each side to establish a 40-foot entrance; placement of rock in the bottom of a ford where a stream crosses the Access Road; elimination of a rock outcropping located along the edge of the Access Road near the Campbell Property in order to widen it at that location; and trimming limbs from a grove of pines that extend into the Access Road.

Afterwards, Palmer and Yancey could not agree on the language contained in the proposed final order drafted by Yancey's counsel at the circuit court's direction. As a result of the disagreement, the court held another evidentiary hearing to further address the precise details of the modifications to be made to the Access Road on the Palmer Property as determined by the court to be reasonably necessary. At this hearing, the court again heard the testimony of **149Endsley, Yancey's expert witness, who provided additional specific information regarding his proposals for modifying the Access Road. The only other witness was Palmer, who again offered her lay opinion in support of her opposition to those proposals for esthetic reasons. The court then engaged in a lengthy colloquy with counsel for both sides addressing in detail each of the proposed modifications and the corresponding language for their inclusion in the final order.

The circuit court thereafter entered a final order in favor of Yancey. The order establishes Yancey's right to the easement by necessity located across the Access Road on the Palmer Property for the benefit of the Yancey Property, as the parties had stipulated. It then specifies that Yancey is entitled to use the easement for ingress and egress for all lawful purposes, including but not limited to timbering. As to the type of travel, the order states: "That right is not restricted to the type of vehicles or mode of travel existing at the time the easement was created, but for any vehicle which reasonable needs may require in the development of the Yancey Property. Based on the evidence at trial, the [c]ourt specifically finds that tractor trailers are reasonably necessary and may be driven across the Easement." The order then sets forth in detail the specific modifications to the Access Road that the court found to be reasonably necessary to accommodate such travel.6

**150*748II. ANALYSIS

On appeal, Palmer argues the circuit court erred by granting Yancey the right to modify its easement by necessity extending over the Access Road on the Palmer Property because the modifications will unlawfully increase the width of an established easement by necessity. Alternatively, she argues the court erred by granting Yancey the right to modify the easement in order to use tractor-trailers over the Access Road because this will unreasonably increase the burden on the Palmer Property.

A. PERMISSIBILITY OF WIDENING THE EASEMENT

Palmer asserts on brief that Virginia law is unclear as to the permissibility of widening an easement by necessity and argues in favor of a "bright-line rule" that such an easement, "once located, **151cannot be widened" without the consent of the servient landowner. Appellant's Br. at 9. She thus frames this argument as an issue of law in challenging the circuit court's ruling to the contrary, which we review de novo. Clifton v. Wilkinson, 286 Va. 205, 208, 748 S.E.2d 372, 373 (2013).

We hold that the circuit court correctly decided that it had the authority, as a matter of law, to grant a dominant landowner the right to widen an established easement by necessity without the servient landowner's consent.7 While this Court has not previously addressed this precise issue, our holding is consistent with both the Court's application of well-settled common law principles governing easements by necessity in numerous cases, and the holdings of courts in other jurisdictions that have similarly determined that such easements may be so expanded.8 See, e.g., Traders, Inc. v. Bartholomew, 142 Vt. 486, 459 A.2d 974, 978-80 (1983) (remanding case to trial court to determine increase in width of existing easement by necessity); Beck v. Mangels, 100 Md.App. 144, 640 A.2d 236, 249-50 (Md. Ct. Spec. App. 1994) (upholding trial court's ruling which increased width of existing easement by necessity).

Palmer cites no authority on point from any jurisdiction in support of the rule that she advocates on brief for application to easements *749by necessity, referring to it as "Palmer's rule." Appellant's Br. at 9 & 20-22. She instead relies principally on cases addressing express easements and easements by prescription, which have their own set of rules separate and apart from the rules governing easements by necessity, as fashioned in the course of their own unique historical development.9 The easement by necessity rules, discussed infra, are the antithesis of the static rule that **152Palmer has advocated to the circuit court and to this Court on brief-to freeze the parameters of an easement by necessity to those that existed at the time of its inception. Under this view, an easement by necessity that began as a footpath, a horse trail, or a wagon road would be forever fixed by those physical limitations if the servient landowner so desired, without regard to the resulting limits on the useful development of the dominant estate compared to the incremental burden, if any, on the servient estate that would result from an expansion of the easement. Accordingly, if the easement by necessity was, for example, three feet wide at the time of its inception in the 1800's and conducive to transporting only one log at a time by horse, such limited use of the easement in relation to timbering would necessarily be enforceable today, under Palmer's untenable rule.10

Palmer challenges the circuit court's decision with assertions based on an erroneous premise. She asserts that "[t]he physical dimensions of the easement [at issue here] were agreed to when the location was set many years ago." Appellant's Br. at 9. "Changing [its] width, many years later," she concludes, "would thwart the implied understanding between the original dominant and servient owners." Id.But there is absolutely no evidence of any agreement or understanding, express or implied, between the original landowners regarding any aspect of an easement. Indeed, it **153was for that reason that the easement by necessity along the Access Road arose when Richardson's property was subdivided in 1828 and the Yancey Property became landlocked, as the parties stipulated.11 *750To be sure, Yancey's easement, like all easements by necessity, is characterized in the law as an "implied easement." Carter v. County of Hanover, 255 Va. 160, 168-70, 496 S.E.2d 42, 46-47 (1998) (comparing implied easements from prior use to easements by necessity, both of which "arise by implication"); see also Davis v. Henning, 250 Va. 271, 276, 462 S.E.2d 106, 108 (1995) (holding that "the required elements of an implied easement by necessity" were met); American Small Business Inv. Co. v. Frenzel, 238 Va. 453, 457, 383 S.E.2d 731, 734 (1989) ("[T]he implied easement of necessity must arise contemporaneously with the severance of the unity of title."). Such easements are implied, however, by operation of law based on long-standing policy considerations under the common law. In Keen, we explained:

"A way of necessity is an easement arising from an implied grant or implied reservation; it is of common-law origin and is supported by the rule of sound public policy that lands should not be rendered unfit for occupancy or successful cultivation. Such a way is the result of the application of the presumption that whenever a party conveys property, he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses."

203 Va. at 178-79, 122 S.E.2d at 546 (quoting 17A Am. Jur. Easements§ 58 (1957) ); see Parker v. Putney, 254 Va. 192, 195, 492 S.E.2d 159, 161 (1997) (implied easements by necessity are "based on [this] common law presumption" (quoting **154Davis, 250 Va. at 276, 462 S.E.2d at 108 )); see generally, 4 Powell on Real Property § 34.07(1) (Michael Wolf ed., 2017) ("These fictional implications of 'intent' are actually rooted in considerations of public policy."); James W. Simonton, Ways by Necessity, 25 Col. L. Rev. 571, 601 (1925) ("The so-called presumed intent is pure fiction; the easement [by necessity] arises by operation of law, and it arises because the courts are influenced by the social interests involved.").

In establishing an easement by necessity, "[t]he fact of the necessity" thus becomes an issue of "great importance in determining whether an easement should be implied." Jennings v. Lineberry, 180 Va. 44, 48, 21 S.E.2d 769, 771 (1942) (quoting 17 Am. Jur. Easements§ 48 (1938) ). Under Virginia law, it has long been the rule that the "necessity" is "not a physical or absolute necessity but a reasonable and practicable necessity." Smith v. Virginia Iron, Coal & Coke Co., 143 Va. 159, 164, 129 S.E. 274, 276 (1925) ; see Parker, 254 Va. at 196, 492 S.E.2d at 161 ; Davis, 250 Va. at 276, 462 S.E.2d at 109 ; Frenzel, 238 Va. at 456, 383 S.E.2d at 734 ; Hurd v. Watkins, 238 Va. 643, 653-54, 385 S.E.2d 878, 884 (1989) ; Middleton v. Johnston, 221 Va. 797, 803, 273 S.E.2d 800, 803 (1981) ; Fones v. Fagan, 214 Va. 87, 90, 196 S.E.2d 916, 918 (1973) ; Keen, 203 Va. at 179-81, 122 S.E.2d at 546-48 ; Jennings, 180 Va. at 48-49, 21 S.E.2d at 771. By adopting this rule, this Court aligned Virginia with the majority rule. Middleton, 221 Va. at 803, 273 S.E.2d at 803 ; Jennings, 180 Va. at 48-49, 21 S.E.2d at 771.

Under this majority rule, moreover, use of an easement by necessity is not limited to what was associated with the purposes for which the dominant estate was adapted at the time of the easement's creation-i.e., the time of severance from the servient estate. Keen, 203 Va. at 179-81, 122 S.E.2d at 546-48. As we explained in Keen, "[t]he prevailing view in this country is that a way of necessity is not limited to such use of the land as was actually made and contemplated at the time of the conveyance, but is a way for any use to which the owner may lawfully put the granted land at any time." Id.at 180, 122 S.E.2d at 547 (quoting Crotty v. New River & Pocahontas Consol. Coal Co., 72 W.Va. 68, 78 S.E. 233, 234 (1913) ); see Fones,214 Va. at 90, 196 S.E.2d at 918 ("The particular use requiring a way of necessity need not have **155existed at the time of the conveyance." (citing Keen, 203 Va. at 179, 122 S.E.2d at 547 )). In short, the "scope" of the easement by necessity "may increase to meet the increased necessities of *751the property." Keen, 203 Va. at 179, 122 S.E.2d at 546.12

Such an increased necessity may require increasing the "sort of and quantity of traffic over" the easement, as occurred in Keen (discussed infra). Id. ; see Ashby v. Maechling, 356 Mont. 68, 229 P.3d 1210, 1218 (2010) ("[M]odern vehicle access ... may be allowed as part of an easement by necessity even though the easement arose as a legal matter before the general use of such improvements."); Schumacher v. Department of Natural Resources, 256 Mich.App. 103, 663 N.W.2d 921, 923-24 (2003) (rejecting contention that subject easement by necessity was limited to modes of transportation used when easement was created in early 1900's).

The increased necessity may also require widening the easement, as addressed by the Court of Special Appeals of Maryland in Beck. In most jurisdictions, the court explained, "a right-of-way of a specified width generally does not grow as the size of vehicles, etc., increases. The same is not true for implied ways of necessity." Beck, 640 A.2d at 249 (internal citation omitted). The court in Beck noted with approval that "[f]oreign jurisdictions generally agree that the scope of ways of necessity may be increased." Id. Accordingly, the court there held that the scope of an easement by necessity, including its width, "may reasonably increase with the dominant estate's necessary and reasonable needs as those needs **156exist, present and future." Id.at 250. Based on that holding, the court further held that the trial court's ruling approving an increase in the width of an existing easement by necessity was not error. Id. See Adams v. United States, 3 F.3d 1254, 1259 (9th Cir. 1993) ("Under the common law, a party having an easement by necessity is entitled to only one route, is entitled to reasonable use, and is entitled to an easement width that allows such reasonable use."); Prince v. Edington, 1983 WL 3254, at *3, 1983 Ohio App. LEXIS 14549, at *8 (Ohio Ct. App. Aug. 10, 1983) (observing that "[a]n easement by way of necessity ... is not limited in its use to the original use of the lands, but expands and fluctuates to meet the growth, development and changed condition of such lands." (citing Erie Railroad Co. v. S.H. Kleinman Realty Co., 92 Ohio St. 96, 110 N.E. 527 (1915) )); Bartholomew, 459 A.2d at 980 (holding that the "scope of an existing way of necessity" may be "enlarged," including the easement's width).

Applying the "reasonable necessity" rule in Keen, we affirmed the trial court's judgment in favor of the defendant/lessee coal mining company, holding that it had the right to haul coal over the road crossing plaintiff's property, the servient estate, under an easement by necessity. Keen, 203 Va. at 180-81, 122 S.E.2d at 547-48. We determined that the record supported the trial court's finding that the removal and transportation of the coal was reasonably necessary for the beneficial use of the dominant estate on which the company was mining the coal. Id.at 176-81, 122 S.E.2d at 544-48. Significantly, this determination was not altered by the fact that at the time of severance the properties comprising the dominant and servient estates were "in a state of nature, and there was no *752roadway in actual use" over the plaintiff/servient landowner's property. Id.at 180, 122 S.E.2d at 547. We ultimately concluded that the trial court, in balancing the interests of the separate estates, correctly found that the company's use of the easement over plaintiff's property "did not go beyond what was reasonably necessary" for transporting the coal. Id.at 181,