Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons and
Agee, JJ., and Russell, S.J.

ERNEST L. ELLIS, ET AL.                 OPINION BY
                              SENIOR JUSTICE CHARLES S. RUSSELL
v.   Record No. 042842              September 16, 2005

GARLAND P. SIMMONS, ET AL.

           FROM THE CIRCUIT COURT OF BEDFORD COUNTY
                  James W. Updike, Jr., Judge

     This appeal presents the question whether a landowner,

seeking to establish a prescriptive easement over the lands of

neighboring owners, must show the boundaries of the land he

claims to be the dominant estate.

     The essential facts are undisputed.    Reid Jones, Jr.

acquired a number of contiguous parcels of land in the Diamond

Hill area of Bedford County, beginning in the 1960’s.   Jones

died in 1996 and devised all of this property, then containing

about 232 acres, to The Joco Foundation.    Joco employed a

surveyor, Donnie W. Slusher, who subdivided all of the 232

acres into new tracts in 2002 and recorded the plat.    The

Slusher plat did not show the property lines of the numerous

parcels Jones had originally acquired.   The new tracts on the

Slusher plat had boundary lines entirely different from those

of the parent parcels Jones had acquired.

     In 2003, Garland P. Simmons and Carolyn P. Simmons (the

complainants) purchased 161 acres of the Joco property, shown

as Tract 11 on the Slusher plat, at a public auction.   The
plat showed an existing “old road bed” extending northward

from a cemetery on Tract 11.*   The “old road bed” connected to

a “soil road” continuing northward to the northernmost point

of the Joco property.   From that point, the road departed from

the Joco property and continued across three neighboring

tracts to Diamond Hill Road (State Route 655).   The owners of

the three neighboring tracts were, respectively, Ernest Lee

Ellis and Janet H. Ellis, Clayton P. Hurt and Emily F. Hurt,

and Edwin C. Ellis and Elsie B. Ellis (collectively, the

respondents.)

     The complainants brought this suit, alleging that they

and their predecessors in title had used the old road for a

period in excess of 20 years under circumstances giving them a

right to a prescriptive easement and that the respondents had

obstructed the roadway by installing a locked gate.   The

complainants sought injunctive relief and a determination of

their right to continuing and uninterrupted use of the road.

The chancellor heard the evidence ore tenus and held that the

complainants had met their burden of proving, by clear and

convincing evidence, that the “right of way described in the

Bill of Complaint is an easement appurtenant to the property


     * It is conceded by the parties before the court that
those who may have an interest in the cemetery have not been
made parties to the suit and that their interests are
unaffected thereby.


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now owned by the complainants,” fixing its width at twelve

feet and enjoining the respondents from interfering with its

use.   We awarded the respondents an appeal.

       There are two assignments of error:    (1) That the

complainants failed to establish by clear and convincing

evidence that a prescriptive easement had been established,

and (2) that the chancellor erred in failing to require proof

of the boundaries of the property to which the easement was

appurtenant.   Because we find the second assignment of error

to be dispositive, the evidence may be summarized briefly.

       The evidence showed that Reid Jones, Jr., around 1986,

asked permission from the respondents and their predecessors

in title to continue the use of the old road for ingress and

egress.   They all agreed.   Later, Jones asked them to sell him

an easement over the road, but they refused.     They never

obstructed his use, but they and he evidently regarded his use

as permissive.

       The old roadway was shown on plats and was mentioned in

descriptions in deeds as early as 1919.      Its physical location

was shown on a U. S. Geological Survey map of the area.       The

evidence showed that several families whose farms and homes

had been dependent upon the road for ingress and egress had

used it openly and continuously for many years prior to Jones’




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acquisition of their properties.    One witness testified to

personal knowledge of such use as early as 1937.   Those

families were some, but not all, of the complainants’

predecessors in title.   There was no evidence that their use

was permissive and no evidence that the respondents’

predecessors had ever objected to or interfered with it.

     The Slusher plat, which had subdivided all of Jones’ 232

acres and which showed the complainants’ land as “Tract 11,”

failed to show the locations and boundaries of the lands of

the several former owners who had used the road.   Slusher

testified at trial that Jones had owned “other land” that had

been included in his subdivision of the Joco property but the

evidence failed to show the area or location of such “other

land.”   The complainants’ Tract 11 contained more acreage than

the combined area of the parent tracts shown by the evidence

to have been the former dominant estates.   The conclusion is

inescapable that Tract 11 contains some “other land” which was

never shown by the evidence to have been appurtenant to the

prescriptive easement.

     The chancellor found that the complainants had

established, by clear and convincing evidence, that Jones’

predecessors had exercised open, visible, continuous and

unmolested use of the roadway across the respondents’ property

for a period in excess of 20 years, raising the presumption


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that their use was under a claim of right.   The chancellor

further held that the presumption had not been rebutted, and

that the prescriptive right they had obtained had become

appurtenant to Jones’ predecessors’ lands before Jones

acquired their properties and was not lost by Jones’

subsequent permissive use or by his effort to purchase an

easement.   The chancellor also found the evidence sufficient

to establish the road’s location and 12-foot width.

     We will assume, without deciding, that the evidence

supported the chancellor’s ruling in all the foregoing

respects.   Nevertheless, the complainants’ failure to prove

the boundaries of the dominant estate is fatal to their claim.

     The chancellor’s decree established a prescriptive

easement over the lands of the respondents for the benefit of

all the land owned by the complainants.   The decree thus had

the effect of making Tract 11, as shown on the Slusher plat,

the dominant estate to which the easement was appurtenant.

The evidence, however, lacked any means of relating the modern

Tract 11 to the parent parcels whose owners had used the road

for ingress and egress to their respective farms and homes.

Tract 11 contained additional land that had not belonged to

the owners of those parent parcels, but the evidence failed to

specify the location or area of such additional land.    The

chancellor, therefore, was unable to tailor the final decree


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to restrict the dominant estate to the property to which the

easement had, historically, been appurtenant.   The result was

to increase the burden of the easement upon the servient

estates to an unknown extent.

       The imposition of a prescriptive easement is the taking

of a property right of the servient owner without payment of

compensation.   Amstutz v. Everett Jones Lumber Corp., 268 Va.

551, 562, 604 S.E.2d 437, 443, (2004).   For that reason, we

said, in Eagle Lodge, Inc. v. Hofmeyer, 193 Va. 864, 877, 71

S.E.2d 195, 202 (1952), “[T]he law is jealous of a claim to an

easement.”   It is also one of the reasons underlying our

decision in Pettus v. Keeling, 232 Va. 483, 485-87, 352 S.E.2d

321, 323-24 (1987), to hold a claimant to a prescriptive

easement to the burden of proving his case by clear and

convincing evidence.   Amstutz, 268 Va. at 562-63 604 S.E.2d at

443.

       The foregoing reason underlies the rule that the owner of

the dominant estate may not increase the burden of the

easement upon the servient estate.   Indeed, such an increase

may, in some circumstances, cause the easement to be

extinguished.   “[I]f the easement arises by prescription, a

change in the dominant estate calling for a burden upon the

servient land exceeding that devolving upon it by its

customary use during the prescriptive period, if the increased


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use is inseparable from the former use, will operate an

extinguishment of the easement.”    1 Frederick D.G. Ribble,

Minor on Real Property § 110, at 150 (2d ed. 1928) (emphasis

in original).

     In Va. Hot Springs Co. v. Lowman, 126 Va. 424, 430, 101

S.E. 326, 328 (1919), we held that the proposed future uses of

a prescriptive easement must be of the “same nature and

character” as those exercised during the prescriptive period

and that an increase “in degree only” would be within the

prescriptive use but only if “no additional burden is put upon

the servient estate.”   In McNeil v. Kingrey, 237 Va. 400, 406,

377 S.E.2d 430, 433 (1989), however, we went further and

placed upon the claimant to a prescriptive easement the burden

of showing affirmatively that any proposed change in his use

of the easement will impose no additional burden upon the

servient estate.   Indeed, we noted in Mobley v. Saponi Corp.,

215 Va. 643, 645, 212 S.E.2d 287, 289 (1975), that “injunctive

relief is routinely afforded to restrain the overburdening of

easements.”

     An increase in the area of the dominant estate increases

the burden of an easement upon the servient estate as a matter

of law.   In Clark v. Reynolds, 125 Va. 626, 634, 100 S.E. 468,

470-71 (1919), we held that a party entitled to the use of a

prescriptive easement could not “use it as an easement for the


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benefit of any other place than that for which it was

originally established.”   In Robertson v. Robertson, 214 Va.

76, 81, 197 S.E.2d 183, 187 (1973), we held that the owner of

a dominant estate cannot use an easement for that tract to

benefit any additional lands he may own because “such a

result, which would necessarily enlarge the burden on the

original right of way, is impermissible.”   Accord, Conrad v.

Strickler, 215 Va. 454, 461, 211 S.E.2d 248, 253 (1975).

Thus, any increase in the burden of a prescriptive easement

upon the servient estate, whether caused by a change of use or

by an increase in the area of the dominant estate, is

prohibited in Virginia.

     Here, the burden was upon the complainants to prove, by

clear and convincing evidence, the boundaries of those lands

of their predecessors in title that had become entitled to a

prescriptive easement over the lands of the respondents.    The

complainants failed to carry their burden of proof.   Instead

of showing the boundaries of the original dominant estate, and

thus enabling the chancellor to restrict the benefit of the

easement to those boundaries, the complainants’ evidence, by

showing that additional land had been annexed to the original

dominant estate, showed an impermissible increase in the

easement’s burden upon the servient estates.   The chancellor




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therefore erred in declaring the easement to be "appurtenant

to the property now owned by the complainants."

     For the foregoing reason, we will reverse the

chancellor’s decree and enter final judgment for the

respondents.

                                   Reversed and final judgment.




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