PRESENT: All the Justices

JOANNA PALMER
                                                             OPINION BY
v. Record No. 160664                             JUSTICE ELIZABETH A. McCLANAHAN
                                                          September 14, 2017
R. A. YANCEY LUMBER CORPORATION



                   FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                                Cheryl V. Higgins, Judge

       Joanna 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, dating 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



       1
        Yancey’s founder began acquiring the tracts of land comprising the Yancey Property in
1958. Palmer acquired the Palmer Property in 1998.
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

approximately 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,” by the owners of the Kiser Property and the




       2
       The Access Road was specifically referenced in a deed in the chain of title for the
Campbell Property that was recorded in the Albemarle County land records in 1903.


                                                  2
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.




       3
        Yancey proceeded only on the claim of easement by necessity under Count I of its
Amended Complaint after the parties agreed to the dismissal of Counts II and III on claims of
easement implied by prior use and prescriptive easement, respectively, without prejudice.



                                                  3
       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 wide

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.

Endsley also provided extensive testimony regarding his recommendations for modifying the

Access Road over the Palmer Property for purposes of accommodating tractor-trailers. This




       4
         Compared to that timbering operation on the Campbell Property, which took four to five
weeks, Endsley estimated that harvesting the hard wood alone from the Yancey Property would
involve 15 times as much volume and would take from 6 to 12 months to complete.


                                                 4
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 trucks,

“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



       5
           See Part II(B)(2), infra (addressing this portion of Endsley’s testimony in detail).


                                                   5
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 Keen 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-




                                                 6
trailers to transport the timber, and to, in turn, widen its easement to accommodate such use by

making certain modifications to 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

Endsley, 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




                                                  7
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




       6
           The modifications are set forth in paragraph 19 of the final order as follows:

                i. The entrance to the Access Road from State Route 736 (the
       “Entrance”) may be widened to a width of forty (40) feet and will taper back to a
       width of twenty (20) feet by the first nail (a “station marker”) located
       approximately 37.10 feet from the entrance.
                ii. A pipe may be installed approximately 5 to 15 feet from the Entrance,
       running parallel along the width of the Entrance to help direct the stream crossing
       located near the Entrance. So long as it is installed, this pipe shall be maintained
       by Yancey.
                iii. Yancey may add gravel to the Easement as necessary.
                iv. Yancey may add stone and/or fill and may grade as necessary to fill in
       ruts in the Easement.
                v. Yancey may fill in the large hole and otherwise repair the Easement
       located approximately 97 feet from the Entrance.


                                                   8
        vi. Trees, branches, foliage and overgrowth may be trimmed or cut if
they are rubbing, interfering with or obstructing the path of vehicles traveling
over the Easement.
        vii. From approximately the second station marker located approximately
117.10 feet from the Entrance to the third station marker located approximately
209.30 feet from the Entrance, Yancey may grade, shape and drain the Easement.
If grading doesn’t eliminate the berm, Yancey may install outlets by cutting or
digging gaps in the berm as needed to allow for drainage.
        viii. Yancey may remove the oak tree on the south side of the Easement
obstructing the path of truck traffic approximately located from the sixth station
marker (approximately 382.07 feet from the Entrance) to the seventh station
marker (approximately 450.82 feet from the Entrance).
        ix. The stream crossing approximately located between the seventh
station marker (approximately 450.82 feet from the Entrance) to the eighth station
marker (approximately 488.28 feet from the Entrance) may be armored and
reinforced using stone, large rocks or other material as necessary and required by
state regulations. This area is to remain passable by personal passenger vehicles.
The Court orders that the Access Road may be shifted three feet into the berm. It
is permitted to be stoned and the trees may be trimmed but not removed.
        x. Between station marker eight to eleven, the curve may be widened to
no more than eighteen feet, including the original roadbed.
        xi. Rocky outcroppings approximately located between tenth station
marker (approximately 593.84 feet from the Entrance) to the twelfth station
marker (approximately 693.84 feet from the Entrance) may be graded to the level
of the road providing a maximum road width of eighteen (18) feet. The large rock
may not be disturbed. The Easement also needs to be straightened and shifted
north approximately ten (10) feet at approximately the eleventh station marker
(approximately 643.84 feet from the Entrance).
        xii. From approximately the eleventh station marker (approximately
643.84 feet from the Entrance) to the thirteenth station marker (the western
boundary of the Palmer Property located at approximately 838.48 feet from the
Entrance), Yancey may grade, shape and drain the Easement.
        xiii. After the repairs, modifications and/or improvements described in
this Order have been completed, the resulting Easement will be a width of 20 feet
(except for the width of the Entrance as described in (i) above) including the
roadbed measured 10 feet on either side of the centerline as shown on the Survey
[attached to the Order as Exhibit A] and includes necessary maintenance and
repairs, which the Court finds is reasonably necessary for the purpose of
timbering the Yancey Property. The roadbed itself cannot be altered or modified
except as set forth in this Order.




                                        9
                                            II. 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, cannot 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




          7
         Whether the circuit court erred in exercising that authority when deciding upon the
reasonability of Yancey’s proposed easement modifications, which presents an issue of fact, is
the subject of our analysis in Part II.B., infra.



                                                   10
other jurisdictions that have similarly determined that such easements may be so expanded. 8

See, e.g., Traders, Inc. v. Bartholomew, 459 A.2d 974, 978-80 (Vt. 1983) (remanding case to

trial court to determine increase in width of existing easement by necessity); Beck v. Mangels,

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 by 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



       8
          We note that just as the terms “easement” and “right of way” are used in case law and
legal treatises interchangeably in the context of roads, so too are the terms “easement by
necessity” or “easement of necessity” and “way of necessity,” as will be seen in the following
discussion. See, e.g., Clifton, 286 Va. at 210-11, 748 S.E.2d at 374-35; Middleton v. Johnston,
221 Va. 797, 803, 273 S.E.2d 800, 803 (1981); Keen, 203 Va. at 178-81, 122 S.E.2d at 546-48.
       9
          In addition to her reliance upon inapposite Virginia cases addressing express easements
and easements by prescription, Palmer, on brief, relies heavily on three out-of-state cases as
authority for her position: Dudgeon v. Bronson, 64 N.E. 910 (Ind. 1902); Johnson v. Lunsford,
168 S.E. 382 (W. Va. 1933); and Gacki v. Bartels, 859 N.E.2d 1178 (Ill. App. Ct. 2006). She
there asserts that the courts in those cases held that “width expansion” of easements by necessity
is “not allowed” without the express or implied consent from the servient landowner.
Appellant’s Br. 10. She is mistaken in that assertion as there is no such holding in any of those
cases. In Dudgeon, the court addressed the unavailability of an easement by necessity where the
dominant landowner possessed an express easement. Dudgeon, 859 N.E. at 910-11. The court
held that the allegations that the express easement had become “inconvenient” was an
insufficient basis for claiming “an additional strip [over the servient estate] as a way of
necessity.” Id. In Johnson, the court held that the dominant landowner had no right to surrender
and abandon the route of his easement by necessity in favor of an entirely different route over the
servient estate. The court reached that decision because the record showed that the dominant
landowner’s use of the latter route was not undertaken adversely but instead by permission from
the servient landowner, “and no reason appear[ed] why [the permission] could not be voluntarily
withdrawn.” Johnson, 168 S.E. at 382. Finally, in Gacki, the court merely held that when an


                                                11
the static rule that Palmer 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 by necessity is judicially established, a court must determine as part of its “actual
creation,” among other things, the width of the easement. Gacki, 859 N.E.2d at 1187. In sum,
none of these cases held that the width of an established easement by necessity can never be
expanded in the future based on a change in circumstances regarding the use of the dominant
estate.
       10
          At oral argument before this Court, Palmer’s counsel backtracked on her proposed
bright-line rule when questioned from the bench about the above-stated example. However, her
counsel still argued for some kind of fixed rule that would limit an easement by necessity’s
expansion to what he described as “small modifications” to accommodate “automobiles,” which
would arbitrarily exclude tractor-trailers regardless of the specific facts of the case. Oral
Argument Audio at 8:20 to 9:11.



                                                12
easement. Indeed, it was 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

        To 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.”




        11
           The elements of easement by necessity are as follows: (1) the dominant and servient
estates were derived from a common title, i.e., “at some time in the past, [they] belonged to the
same person,” (2) the easement is “reasonably necessary to the enjoyment of the dominant
estate,” and (3), the dominant estate became landlocked at the time of the severance of the two
estates and there is no “means of ingress and egress” other than over the servient estate. Hurd v.
Watkins, 238 Va. 643, 653-54, 385 S.E.2d 878, 884 (1989) (citing Middleton v. Johnston, 221
Va. 797, 802-04, 273 S.E.2d 800, 803 (1981)). The easement thus arises at the time the
dominant and servient estates are severed, even if it is not “judicially established” for many years
after the severance. Carstensen v. Chrisland Corp., 247 Va. 433, 442, 442 S.E.2d 660, 665
(1994).



                                                13
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 Davis, 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, 493 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. 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-




                                                 14
81, 122 S.E. 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. at 547 (quoting Crotty v. New River &

Pocahontas Consol. Coal Co., 78 S.E. 233, 234 (W. Va. 1913)); see Fones, 214 Va. at 90, 196

S.E.2d at 918 (“The particular use requiring a way of necessity need not have existed 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 the property.”

Keen, 203 Va. at 179, 122 S.E. 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, 229 P.3d

1210, 1218 (Mont. 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




       12
           See also Francini v. Goodspeed Airport, LLC, 134 A.3d 1278, 1284 (Conn. App. Ct.
2016) (“Easements by necessity are not artifacts of a more ancient era and must serve their
intended purpose, to render land useful, in the present day as the beneficial use of land conforms
to modern innovations and needs. This follows from the general rule that the need constituting
the necessity that implies an easement by necessity may change over time.”); see generally, 7
Thompson on Real Property § 60.04(a)(1)(iii) (David Thomas ed., 3d ed. 2016) (“One
determines whether an easement by necessity exists from the circumstances when the landlocked
parcel was severed; one should define the scope, however, with reference to the reasonable
enjoyment of the land and all lawful uses to which it may be put.” (citation and internal quotation
marks omitted)); 4 Powell on Real Property, supra, § 34.07(3) (“To the extent that easements by
necessity rest on the ‘operation of law’ for the realization of the social objective of full land
utilization, the easement by necessity must be flexibly adaptable to the well-known likelihood of
changing property uses.”); Jon W. Bruce & James W. Ely, Jr., The Law of Easements and
Licenses in Land § 8:7 (2012) (“[A]n easement [by necessity] is not limited to the extent of
usage at the time that it was created. Most courts take the position . . . that since the easement is
based on social considerations encouraging land use, its scope ought to be sufficient for the
dominant owner to have the reasonable enjoyment of his land for all lawful purposes.” (citations
and internal quotation marks omitted)).


                                                 15
improvements.”); Schumacher v. Department of Natural Resources, 663 N.W.2d 921, 923-24

(Mich. Ct. App. 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 exist, 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 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., 110 N.E. 527 (Ohio 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).




                                                   16
       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. 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. 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 roadway 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, 122 S.E.2d at 548.

       The balancing of the interests of the dominant and servient estates provides the limiting

principle for making the reasonable necessity determination. This limiting principle, which was

implicit in Keen but not expressly stated, has been articulated in its application in numerous

jurisdictions as follows: an easement by necessity is “coextensive with the reasonable needs,

present and future, of the dominant estate,” and “varies with the necessity, insofar as may be

consistent with the full reasonable enjoyment of the servient estate.” Morrell v. Rice, 622 A.2d

1156, 1160 (Me. 1993) (quoting 25 Am. Jur. 2d Easements & Licenses § 83 at 489 (1966))

(emphasis added); see Keene v. Jackson, 732 So. 2d 1138, 1140 (Fla. Dist. Ct. App. 1999); Beck,

640 A.2d at 249; William C. Haak Trust v. Wilusz, 949 N.E.2d 833, 838 (Ind. Ct. App. 2011);

Stroda v. Joice Holdings, 207 P.3d 223, 230 (Kan. 2009); Griffeth v. Eid, 573 N.W.2d 829, 834




                                                17
(N.D. 1998); Soltis v. Miller, 282 A.2d 369, 371 (Pa. 1971); Bartholomew, 459 A.2d at 980;

Richards v. Land Star Group, Inc., 593 N.W.2d 103, 108 (Wis. Ct. App. 1999). This limitation

is cogently expressed by the Michigan Court of Appeals in Schumacher as follows: “The

inference that the grantor intended to allow for modification of the easement as technology

develops is consistent with the essence of easements by necessity—allowing individuals to make

reasonable use of their property, so long as it does not unduly burden the servient estate.” 663

N.W.2d at 924; see also Ashby, 229 P.3d at 1218 (“[I]f the severance occurred at a time prior to

the general use of motor vehicles and electric power, an easement by necessity may still allow

for ‘reasonable technological developments’ as long as the use does not cause unreasonable

damage or interference with the rights of the servient estate owner.”).

       Based on this authority, we hold that, as a matter of law, under the “reasonable necessity

rule” the width of an existing easement by necessity may be expanded without the consent of the

servient landowner. We also hold, however, that the limiting principle underlying this rule

dictates that modifications to such easements for the beneficial enjoyment of the dominant estate

must not create unreasonable burdens on the servient estate. Accordingly, when adjudicating a

dispute over such proposed modifications, as here, the trial court must balance the benefits and

burdens relative to both estates in deciding upon what modifications, if any, will be approved.

See Bartholomew, 459 A.2d at 980 (directing trial court to “strive for a balancing of interests in

fashioning” the easement by necessity).

               B. REASONABLENESS OF MODIFICATIONS TO EASEMENT

       We now turn to Palmer’s alternative argument that the circuit court erred by granting

Yancey the right to widen its easement by necessity over the Access Road for use by tractor-




                                                18
trailers. So modifying the easement to accommodate tractor-trailers, she asserts, unreasonably

increases the burden on the Palmer Property.

       This challenge to the reasonableness of the court-approved modifications to the easement

presents an issue of fact. 13 See Keen, 203 Va. at 180, 122 S.E. at 548; see also Morrell, 622

A.2d at 1160-61; Beck, 640 A.2d at 250; Bartholomew, 459 A.2d at 980. “Because the circuit

court heard the evidence ore tenus, its factual findings are entitled to the same weight as a jury

verdict, and [we are] bound by [its] findings of fact unless they are plainly wrong or without

evidence to support them.” Jean Moreau & Assocs. v. Health Ctr. Comm’n, 283 Va. 128, 142-

143, 720 S.E.2d 105, 113 (2012) (quoting Mulford v. Walnut Hill Farm Group, LLC, 282 Va. 98,



       13
            In closing argument to the circuit court, Palmer’s counsel asserted in reference to this
alternative argument that the issue “comes down to . . . a question of fact about what’s
reasonably necessary.” Accordingly, her counsel went on to assert: “I’ve argued that a tractor
trailer is not reasonably necessary. What’s reasonably necessary for Yancey’s enjoyment is to
log as they have in the past. Being a case in equity, I ask the [c]ourt to balance the equities.” He
then argued that “the balance of the equities would be tipped if Yancey was allowed to expand
into Ms. Palmer’s property, taking away her land and rocks and her trees.” Consistent with this
argument, Palmer made the following related written objections to the circuit court’s final order:
“[t]he [c]ourt abused its discretion by finding that [Yancey’s] use of tractor trailers is a
reasonably necessary use of the road across [Palmer’s] property,” and “[t]he [c]ourt abused its
discretion by creating an order that unreasonably burdens [Palmer].”
         Contrary to these representations to the circuit court and objections to its ruling, Palmer
has asserted to this Court on brief that this reasonableness inquiry presents a question of law.
There, she argues that the expansion of the easement increases the burden on the Palmer
Property, and that any increase in the burden without the servient landowner’s consent is
prohibited by law. Palmer’s counsel, however, conceded at oral argument that the
reasonableness of modifications to the easement to accommodate tractor-trailers is an issue of
fact. Her argument on brief to the contrary is nonetheless waived because that is not how she
framed her argument to the circuit court and her objections to its finding that Yancey’s use of
tractor trailers was reasonably necessary. See Rule 5:25. That argument is also essentially a
reformulation of Palmer’s argument under her first assignment of error that we addressed and
rejected in Part II.A., supra.




                                                 19
106, 712 S.E.2d 468, 473 (2011)); see Code § 8.01-680. “[U]nder [this] standard of review

applicable to judges sitting as factfinders no less than jurors, we review factfinding with the

highest degree of appellate deference.” Forest Lakes Cmty. Ass’n v. United Land Corp. of Am.,

293 Va. 113, 117, 795 S.E.2d 875, 877 (2017) (citation and internal quotation marks omitted).

In addition, we view the evidence and all reasonable inferences drawn from it in the light most

favorable to Yancey, as the prevailing party at trial. Manchester Oaks Homeowners Ass’n v.

Batt, 284 Va. 409, 423, 732 S.E.2d 690, 699 (2012). 14

       Guided by this standard, we hold that the circuit court’s findings of reasonable necessity

for Yancey’s use of tractor-trailers to transport its timber, and for the modifications to its

easement by necessity to accommodate such use, are not plainly wrong, and they are amply

supported by the evidence. Furthermore, in reaching this conclusion, we reject Palmer’s

argument that these modifications will unreasonably burden the Palmer Property.

                                1. Yancey’s Use of Tractor-Trailers

       As to the circuit court’s approval of Yancey’s use of tractor-trailers, separate and apart

from the court’s approval of the easement modifications to accommodate them, we reiterate that

the standard is not whether their use is of “absolute necessity” but rather whether their use is of

“reasonable and practicable necessity.” Smith, 143 Va. at 164, 129 S.E. at 276.

       The circuit court’s finding that tractor-trailers are reasonably and practicably necessary

for Yancey’s timbering operation is supported by the testimony of Emmett and Endsley. Both of



       14
          See also Adams v. Allen, 202 Va. 941, 946, 121 S.E.2d 364, 368 (1961) (“A
[factfinder] should be permitted to determine a case if the evidence is in conflict as to the
[dispositive facts], or if reasonable men might draw different conclusions from the facts, or if the
conclusion is dependent upon the weight to be given the testimony.” (citing Hobbs v. Thorns,
195 Va. 639, 646, 79 S.E.2d 854, 857 (1954); Wilkins v. Davis, 158 Va. 763, 770, 164 S.E. 649,
651 (1932)).



                                                  20
them testified that using tractor-trailers—as opposed to ten-wheel logging trucks—is the most

efficient way to haul the logs from the Yancey Property over the Access Road to State Route

736, and from there to Yancey’s sawmill.

        Moreover, they explained, using tractor-trailers is, in fact, the only way to haul the pine

logs at full-length for processing, as the lumber market demands. Endsley further explained that

the industry standard is to use tractor-trailers for hauling logs (both pine and hardwood) for an

operation covering as many acres of timber as will be harvested on the Yancey Property. Only

much smaller timbering operations now use ten-wheel trucks for economic reasons, which is

consistent with Emmett’s statement that he rarely sees a load of logs being hauled to Yancey’s

sawmill with a ten-wheel truck. In fact, he does not recall seeing one in the last three years.

Furthermore, according to Emmett, if Yancey were limited to using ten-wheel trucks to haul the

logs from the Yancey Property, it would require 222 additional trips to Yancey’s sawmill.

        As to processing the pine logs, Emmett testified that Yancey’s newest equipment at its

sawmill was designed to cut the logs at full length whereas its old equipment dating back to the

1970’s is only capable of processing shorter logs. In terms of efficiency, Yancey can

“manufacture five to seven logs for every one that goes through the old [equipment].” In

addition, the old equipment is “not all that reliable,” Emmett explained, and he did not believe

that it would be feasible to use the old equipment to process the 83 acres of pines to be harvested

from the Yancey Property.

        In terms of impact on the Access Road, Endsley explained that hauling the timber from

Yancey’s property using ten-wheel trucks will, of course, require “more trips” whereas “[i]f you

can do it with . . . tractor-trailers, then your impact is going to be reduced because you’re

eliminating a lot of traffic.”




                                                 21
                        2. Modifications to Access Road to Widen Easement

       The evidence also supports the circuit court’s approval of the specific modifications to

the Access Road to widen Yancey’s easement. The evidence shows not only that these limited

modifications are reasonably necessary to accommodate tractor-trailers, but also that the

modifications will not unreasonably burden the Palmer Property.

       The Access Road, also referred to in the final order as the “roadbed,” extends across the

Palmer Property at various widths for a distance of approximately 838 feet. To accommodate

tractor-trailers on this section of the Access Road, the order grants Yancey the right to widen the

roadbed in three limited locations. Significantly, this leaves two-thirds of the roadbed, totaling

approximately 559 feet, as is, in terms of the various widths of the roadbed along the way

(ranging from 10 feet to 15 feet). 15 Thus, while the court granted Yancey a 20-foot wide

easement by necessity over the Access Road in the final order, the order makes clear that “[t]he

roadbed itself cannot be altered or modified except as set forth in this [o]rder.” The portion of

the easement extending beyond the actual width of the roadbed at any given location, as the

order also makes clear, is provided solely for purposes of performing maintenance to the

roadbed, such as trimming trees and overgrowth that “are rubbing, interfering with or obstructing

the path of vehicles traveling over the [e]asement.”

       The first section of the roadbed that Yancey is permitted to widen pursuant to the final

order extends from the entrance to the first station marker located approximately 37 feet from the

entrance. 16 The entrance may be widened to 40 feet, with the roadbed then “taper[ing] back” to a



       15
            See infra n. 17.
       16
            These “station markers” correspond to the first two of thirteen courses and distances
shown on a plat of the Access Road over the Palmer Property at various points, beginning with
the first station marker at the entrance and ending with the thirteenth station marker at the


                                                22
width of 20 feet at the second station marker. Regarding these modifications, Endsley testified

that the entrance needs to be widened to 40 feet in order for tractor-trailers to enter and exit at

that location. Otherwise, the wheels of the trailers would run off the edge of the roadbed in

making the turn. According to Endsley, the entrance was, in fact, inadequate even for the ten-

wheel trucks that had used it in conjunction with the recent timbering on the Campbell Property.

Based on the tire tracks, he determined that those trucks were “tracking off the sides of the road”

when turning onto and off of State Route 736. So for “any kind of logging traffic, short or long,”

Endsley stated, the entrance needs to be made “a little wider [on each side] so that those trucks

are on stone.” Based on Foster’s testimony that the entrance is currently 30 feet wide, this

modification can be made by extending the entrance five feet on each side.

       The next section of the roadbed that Yancey is permitted to widen is located between the

seventh station marker, which is approximately 451 feet from the entrance, and the eighth station

marker, for a distance, again, of approximately 37 feet. 17 The modifications would be on the

north side of the roadbed, starting on the west side of a stream (heading toward the Campbell

Property) that crosses the roadbed at that location. After providing that the stream crossing “may

be armored and reinforced using stone,” the order provides that the roadbed “may be shifted

three feet into the berm [extending to the eighth station marker]. It may be stoned and the trees

may be trimmed but not removed.” Endsley testified in reference to these modifications that




boundary line with the Campbell Property. The plat was attached to and incorporated into the
final order by agreement of the parties.
       17
          The final order does not authorize any modifications to the width of the roadbed
between the first station marker and the seventh station marker, for a distance of approximately
414 feet. It also authorizes no such modifications to the last section of the roadbed between
station marker twelve and station marker thirteen (the Palmer Property boundary line), for a
distance of approximately 145 feet.


                                                  23
widening the roadbed at this location, along with stoning the bed of the stream, are needed for

purposes of reducing “water quality issues.” Doing so, Endsley explained, would enable truck

traffic (both ten-wheel trucks and tractor-trailers) to travel through the stream “on a nice straight

line as narrow as possible so we keep the impacts [to the bed of the stream] low.” These

measures, according to him, will eliminate the significant erosion that is occurring along the

stream crossing, which is causing the stream to get “wider and wider” as it “wash[es] up the

road.” He also indicated that this would bring the stream into compliance with Virginia

Department of Forestry regulations.

       Finally, the third section of the roadbed that Yancey is permitted to widen is located

between the eighth station marker, which is approximately 488 feet from the entrance, and the

twelfth station marker, for a distance of approximately 206 feet. The modifications there include

reducing two rock outcroppings (the “rocks”) to grade level and straightening the roadbed, for a

maximum road width of eighteen feet (which includes the width of the roadbed as it now exists).

(Id.) The rocks are located along the edge of the north side of the roadbed projecting outwardly

to form part of an ascending convex curve, where the width of the roadbed narrows to eight feet.

Cutting down the rocks would straighten out the curve. In his extensive testimony regarding

these modifications, Endsley explained that the modifications were necessary given the fact that,

because of the rocks, even the ten-wheel trucks were forced “to swing wide” over against the

trees along the bank of the stream on the south side of the roadbed, which was “degrading” the

shoulder of the roadbed on that side. Those trucks, however, were “still not clearing the rock.”

As he described it, they were “rubbing hard against the rock. You can see black tire marks on

it.” This meant that the sidewalls of the tires were “definitely [being] wor[n] off,” he

determined, so “you got tire failure that’s going to happen at some point. You’re also going to




                                                 24
bend some rims.” 18 By eliminating the rocks, “it would keep the trucks in the roadway.” But if

this section of the roadbed remains as is, Endsley concluded, the shoulder on the south side “is

going to further degrade” and “[a]t the very least” it may result in a truck “tip[ping] over against

the trees.” It was thus Endsley’s opinion that, whether it is tractor-trailers or ten wheel trucks

that are used to haul timber over the Access Road, the rocks still need to be eliminated and the

roadbed widened at that location.

       In sum, the circuit court’s judgment granting Yancey the right to make the above-

described modifications to widen its easement by necessity for use by tractor-trailers was neither

plainly wrong nor without evidence to support it. Viewed in the light most favorable to Yancey,

the evidence shows that such use of the easement and the modifications to accommodate that use

are reasonably necessary for the benefit of the Yancey Property. At the same time, the evidence

shows that the modifications will not create an unreasonable burden on the Palmer Property.

Indeed, the evidence in fact shows that, as to each of the three locations at which Yancey was

granted the right to widen the easement, such modifications would be needed even if Yancey

were planning to use only ten-wheel trucks to transport its timber. 19 Thus, we certainly cannot



       18
            Endsley explained this in terms of how trucks “track” when going around a curve.
With a tractor-trailer, the back set of wheels on the trailer follow the truck but not in the same
line. They “track” to the inside as the front of the truck travels around the curve. “So when
we’re looking at clearances on a road, we have to allow for that kind of curve widening so that
the trailers will track behind the trucks” within the roadway. As to ten-wheel trucks, Endsley
went on to explain that they “don’t tend to track as hard because it’s all one frame.” But they
still track “because they’re stretched out [so] the back end of the truck tends to cut on the inside,”
just not as much as a tractor-trailer. “That’s why, in the case of this eight-foot-wide stone place,”
he stated, “we saw that real hard rubbing against the rocks” by the ten-wheel trucks.
       19
          Though not an issue with regard to widening the easement, it is worth noting that the
one tree that the circuit court gave Yancey permission to remove, located on the south side of the
roadbed between the sixth and seventh station markers as set forth in the final order, was already
“obstructing the path” of the ten-wheel trucks, as evidenced by the bark that had been knocked
off by them at a spot 10 to 12 feet high on the tree.


                                                 25
say that the circuit court, by granting Yancey the right to make these limited modifications,

failed to maintain a balance in the interests of the parties, respectively, as dominant and servient

landowners. See Minh Duy Du v. Commonwealth, 292 Va. 555, 564 790 S.E.2d 493, 499 (2016)

(“This bell-shaped curve of reasonability governing our appellate review rests on the venerable

belief that the judge closest to the contest is the judge best able to discern where the equities lie.”

(quoting Sauder v. Ferguson, 289 Va. 449, 459, 771 S.E.2d 664, 670 (2015)).

                                        III. CONCLUSION

       For the foregoing reasons, we affirm the judgment of the circuit court.

                                                                                             Affirmed.




JUSTICE MIMS, concurring in part and dissenting in part.

       Yancey did not prove by clear and convincing evidence that it is reasonably necessary to

use tractor-trailers to harvest the timber on its property, but only that doing so would maximize

its profits. Accordingly, I respectfully dissent.

       A court once observed that “[f]ew things are as certain as death, taxes and the legal

entanglement that follows [the conveyance] of landlocked real estate.” Bob Daniels & Sons v.

Weaver, 681 P.2d 1010, 1013 (Idaho Ct. App. 1984). Many of these entanglements involve the

creation and scope of easements implied by necessity. When “determining whether an easement

[by necessity] should be implied,” “[t]he fact of the necessity . . . is of great importance.”

Jennings v. Lineberry, 180 Va. 44, 48, 21 S.E.2d 769, 771 (1942) (quoting 17 Am. Jr. Easements

§ 48 (1938)). This requisite “necessity” is “not a physical or an 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). Importantly, the reasonable necessity justifying either the



                                                    26
creation of an easement or the expansion of its scope must be proven by clear and convincing

evidence and generally cannot be proven if other access is available, even though that access is

less convenient or more expensive. American Small Bus. Inv. Co. v. Frenzel, 238 Va. 453, 456-

57, 383 S.E.2d 731, 734 (1989).

       Without question, we have recognized easements by necessity in circumstances where the

dominant estate would otherwise be unfit for its foreseeable beneficial use despite the existence

of an alternative access. But in those cases, the evidence clearly and convincingly demonstrated

that using the available access would be economically unreasonable. In Smith v. Virginia Iron,

Coal & Coke Company, for example, the Court considered whether the defendant was entitled to

an easement by necessity over neighboring land to use when harvesting timber. 143 Va. at 163,

129 S.E. at 275-76. By the time of the litigation, the defendant had acquired land adjacent to its

would-be dominant estate with frontage on a public highway at the top of a mountain. Id. at 166,

129 S.E. at 277. However, the evidence demonstrated, “without contradiction, that the

construction of a . . . road up the mountain to the [public highway] would be wholly

impracticable, as the cost of construction would be more than the value of the timber to be

hauled and the land on which it is located.” Id. at 167, 129 S.E. at 277 (emphasis added).

Plainly, constructing such a road was not impossible, and the easement was therefore not

absolutely necessary. Nevertheless, the Court held that this alternative access did not extinguish

an otherwise valid easement by necessity. Id. 1



       1
         Similarly, the Colorado Court of Appeals declined to acknowledge an easement by
necessity when there was “no evidence” that the cost of constructing an alternative access over
available land would be “prohibitive, or grossly in excess of the value of the estate itself.” Le
Satz v. Deshotels, 757 P.2d 1090, 1093 (Colo. Ct. App. 1988); see also D’Addario v. Truskoski,
749 A.2d 38, 45 (Conn. Ct. App. 2000) (“It may be . . . that while access to the property is not
absolutely cutoff, the circumstances . . . are such that the means of access available would not
afford the landowner any real beneficial enjoyment of his property. Such a situation would arise
                                                  27
        In accordance with the above principles, it was not necessary for Yancey to show that the

use of tractor-trailers to harvest its timber is absolutely necessary. However, Yancey was

required to do more than show that using ten-wheelers would be less efficient and more

expensive. MacCaskill v. Ebbert, 739 P.2d 414, 419 (Idaho Ct. App. 1987) (“[O]ne seeking an

easement need not show that a legally available route is absolutely impossible to use . . . [but]

neither is it sufficient merely to show that the legally available route would be inconvenient or

expensive. . . . Rather, an easement by necessity should be granted only if the difficulty or

expense of using the legally available route is so great that it renders the parcel unfit for its

reasonably anticipated use.” (citation omitted)). The evidence, viewed in the light most

favorable to Yancey, failed to do this.

        While Yancey did not use tractor-trailers the last time it harvested the timber from the

property, the evidence showed that the modern “industry standard” for a property of this size

supports their use. Moreover, as Part II(B)(1) of the majority opinion notes, the testimony

provided by Emmett and Endsley establishes that tractor-trailers would be “the most efficient

way to haul the logs from the Yancey Property over the Access Road to [the public highway],

and from there to Yancey’s sawmill.” (emphasis added). But an easement by necessity is not

intended to ensure that the owner of landlocked real estate can efficiently maximize his profits to

the detriment of his neighbor’s enjoyment of her property. While the majority points to

significant evidence demonstrating that Yancey’s timber can be most efficiently harvested using

tractor-trailers, there is no evidence demonstrating that the cost incurred by using ten-wheelers is

so great when compared to the value of the timber that it would make timbering the Yancey




when the expense of making the means of access available would exceed the entire value of the
property to which access was sought.”).
                                                  28
Property unreasonable.

       Yancey’s trial attorney directly asked Emmett what he would do if his only option was

“cutting [the pines] short and taking them out on smaller trucks.” Emmett frankly stated, “I

don’t know” and that “[w]e’d have to look at it.” He suggested that under those circumstances

he might “put the timber up for sealed bids and let somebody else buy it,” which is what Yancey

does for the majority of its investment properties. 2 While Emmett testified that he would expect

fewer bids for the timber under those circumstances, he admitted that “[t]here are people who . . .

buy shorter pines.”

       This testimony not only shows that options other than using tractor-trailers may exist for

harvesting the timber, but also that Yancey has not investigated the economic viability of these

options. Moreover, beyond his general assertions that it is the industry standard to use tractor-

trailers on a property of this size, and that using ten-wheelers would generally reduce the

expected profit, Endsley likewise provided no testimony regarding the specific expense that

would be incurred from using ten-wheelers to harvest the timber on the Yancey Property. In

fact, Endsley admitted that even if tractor-trailers were not allowed on the Access Road, there

would still be value in Yancey’s timber.

       “Courts must be very careful before decreeing upon one man’s land in favor of another

without compensation such an [e]ncumbrance as a way, permanently impairing that man’s

dominion and ownership, which next to life and liberty, is the most valuable of rights inhering in

the citizen.” Crosier v. Brown, 66 S.E. 326, 327 (W.Va. 1909). The cost associated with using




       2
         Emmett testified that in addition to operating a sawmill, Yancey also owns
approximately a dozen timber investment properties, including its property at issue in this case.
Typically, Yancey sells the harvesting rights to the timber on its investment properties to other
companies.
                                                29
ten-wheelers may in fact be so great that Yancey’s use of tractor-trailers is reasonably necessary.

However, in my view, the evidence in this case does not rise to the level that justifies the

expansion of an easement by necessity. As I conclude that Yancey has failed to prove by clear

and convincing evidence that using tractor-trailers is reasonably necessary, I would reverse the

circuit court’s order to the extent that it allows for their use. 3




        3
        Because Endsley repeatedly testified that his recommended modifications to the Access
Road would be necessary regardless of whether the Yancey Property was harvested using ten-
wheelers or tractor-trailers, I do not dissent from Part II(B)(2) of the majority opinion.
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