Present:   All the Justices

SHENANDOAH ACRES, INCORPORATED

v.   Record No. 972263

D.M. CONNER, INCORPORATED

                                         OPINION BY
                              JUSTICE LAWRENCE L. KOONTZ, JR.
                                     September 18, 1998

ACRES SAND & STONE, L.L.C.

v.   Record No. 972266

D.M. CONNER, INCORPORATED


               FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                         Thomas H. Wood, Judge

      In these appeals we consider whether the trial court properly

determined that the owner of a non-exclusive easement may limit

access to the easement by the servient landowner and its lessee.

                              Background

      Since 1957, D.M. Conner, Incorporated (Conner) and its

predecessors have held a mineral interest in the northeastern corner

of property owned by Shenandoah Acres, Incorporated (Shenandoah) for

the purpose of mining sand and gravel.     In June 1982, by deed of

exchange, Shenandoah granted to Conner’s principal shareholder and

his wife a 50-foot easement from State Route 660 running east along

the northern edge of Shenandoah’s property to an adjacent parcel

owned by the couple in exchange for the release of an existing
right-of-way over Shenandoah’s property.   This easement was

subsequently transferred to Conner by deed dated March 25, 1987.

     Conner constructed and maintains a 30-foot wide, surface-

treated road within the easement connecting Conner’s mining

operations on Shenandoah’s property with State Route 660.    These

improvements include a locked gate at the point where the road meets

the state highway.   Conner’s sole current use of its easement is for

access from the mining operation on Shenandoah’s property to the

highway over this road.

     In November 1996, Shenandoah decided to terminate its mining

agreement with Conner and entered into a lease agreement with Acres

Sand & Stone, L.L.C. (Acres Sand), for use of a portion of

Shenandoah’s property.    The purpose of this lease is to allow Acres

Sand to conduct mining operations within the leasehold.   The

leasehold area covers approximately 144 acres of Shenandoah’s

property, including that portion currently being mined by Conner. *

The lease further provides that Acres Sand will have use of the same



     *
      At the time Shenandoah and Acres Sand entered into this lease,
the nature and extent of Conner’s interest in Shenandoah’s property
and its right to continue its mining operation there were in dispute
and were already the subject of other litigation. Pending the
resolution of that litigation, Acres Sand is limited by its special
use permit to conduct mining operations only on the undisputed
portion of its leasehold. Because Conner’s interest in Shenandoah’s
property and its right to continue mining operations there were not
issues in the suits from which these appeals arise, we express no
opinion on these issues or the effect of the resolution of that
litigation on the issues reviewed in this opinion.
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right-of-way between State Route 660 and the leased premises

previously granted to Conner.   Although Acres Sand had not begun

mining operations at the time of trial, it was surveying a portion

of the leasehold and making initial preparations to open a mine in

an area nearer to Route 660 and west of Conner’s mining operations.

Acres Sand plans to build a spur road to connect its mine to the

road on the right-of-way.

     In February 1997, Shenandoah requested that Conner either

relocate its gate to a point nearer Conner’s mining operations, or

permit Shenandoah to have joint control over the gate in its current

location.   Conner refused these requests.   On April 4, 1997,

Shenandoah constructed a “loop” from the highway to the road to

bypass Conner’s gate.   Shenandoah secured the loop with a second

locked gate.   That same day, Conner parked a road grader on the

easement road blocking the bypass.

     On April 7, 1997, Conner filed a bill of complaint seeking a

temporary injunction against Shenandoah and Acres Sand to prohibit

their interfering with Conner’s use of the easement, tampering with

the existing form of the right-of-way, and disturbing the existing

security for Conner’s mining operations until Conner’s property

rights in the disputed portion of the leasehold could be determined.

On April 9, 1997, Shenandoah and Acres Sand jointly filed a separate

bill of complaint seeking an injunction prohibiting Conner from

interfering with their use of the easement area.

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     Although not formally consolidated by the trial court, the two

suits were considered together in the course of two ore tenus

hearings.   At those hearings, the parties offered evidence on the

current and proposed uses of the easement.   Shenandoah indicated

that its current use of the easement was limited to checking the

property two or three times a week.   Acres Sand offered evidence

that it planned to begin mining operations within three months, but

that its current use of the easement involved only survey and site

preparation work.   Once mining operations begin, Acres Sand intends

to use the easement road to move equipment into its mining area and

remove gravel and sand in dump trucks.

     Conner offered testimony that continued use of the easement

road was necessary for its mining operations on Shenandoah’s

property.   Conner also presented evidence regarding the security

requirements of the mining operations imposed by state regulation,

and maintained that it was necessary to keep its gate locked during

non-business hours.   In commenting on the evidence, the chancellor

expressed concern that permitting Shenandoah and Acres Sand

unlimited access to the easement might compromise the security of

Conner’s mining operations.

     The trial court subsequently entered identical orders in each

case in which it found that Conner’s easement was not exclusive, and

that “[Shenandoah] retained the right to use the easement for any

purposes which are not inconsistent with the use of the easement by

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[Conner], and conversely, cannot make any use of the easement which

is inconsistent with the rights granted to [Conner].”   The trial

court further ordered that Shenandoah and Acres Sand could use the

easement only during Conner’s “regular business hours.”   The orders

are silent as to Shenandoah’s and Acres Sand’s request for

injunctive relief.   We awarded Shenandoah and Acres Sand these

appeals.

                              Discussion

     We begin by noting that the final orders of the trial court

were based on the easement granted by Shenandoah to Conner’s

principal shareholder and his wife in the 1982 deed and subsequently

transferred to Conner in the 1987 deed.    We further note that none

of the parties assigns error to the trial court’s determination that

the easement is non-exclusive.   Where error is not assigned to the

holding of the trial court, that holding becomes the law of the

current case and the basis for our decision.    Trustees of Asbury

United Methodist Church v. Taylor & Parrish, Inc., 249 Va. 144, 154,

452 S.E.2d 847, 852 (1995).   Accordingly, we will limit our review

to the dispositive issue of whether the specific facts of this case

would warrant permitting the owner of a non-exclusive easement to

restrict the access of the servient landowner and its lessee.

     Under well-settled principles, a conveyance of an easement that

is non-exclusive does not strip the servient landowner of its right

to all use of the land.   Walton v. Capital Land, Inc., 252 Va. 324,

                                     5
326, 477 S.E.2d 499, 501 (1996).   The servient landowner retains the

right to use its property in any manner that does not unreasonably

interfere with the lawful dominant use.    Id.   The servient

landowner’s right to reasonably use the land includes the right to

grant to others additional easements to use the same land so long as

the additional uses are not unreasonably burdensome or inconsistent

with the existing dominant uses of the easement.     Preshlock v.

Brenner, 234 Va. 407, 410, 362 S.E.2d 696, 698 (1987).

     The party alleging such an unreasonably burdensome or

inconsistent use has the burden of proving this allegation.     Hayes

v. Aquia Marina, Inc., 243 Va. 255, 259, 414 S.E.2d 820, 822 (1992).

Any use of a non-exclusive easement may be protected by an

injunction prohibiting an interfering use when the harm from the

interfering use is irreparable and cannot be adequately addressed in

damages.   Black & White Cars, Inc. v. Groome Transp., Inc., 247 Va.

426, 431-32, 442 S.E.2d 391, 395 (1994).   However, the party seeking

relief must show that the alleged harm is imminent, and not merely

speculative or potential.    See Ridgwell v. Brasco Bay Corp., 254 Va.

458, 462-63, 493 S.E.2d 123, 125 (1997).

     Here, Conner failed to show any significant actual conflicting

use of the easement by Shenandoah and Acres Sand.    Furthermore, any

determination regarding the reasonableness of Shenandoah’s and Acres

Sand’s future use of the easement, when such use is not imminent, is

necessarily speculative.    Similarly, Conner’s concerns over

                                      6
potential criminal acts or liability arising from trespassers are,

at best, speculative.   Accordingly, we hold that Conner did not meet

its burden to show that any actual or imminent use by Shenandoah or

Acres Sand would irreparably harm or unreasonably interfere with

Conner’s use of the road within its easement.

     The trial court, having determined that Conner’s easement is

non-exclusive, may not craft an order creating a de facto exclusive

easement.   Allowing the servient landowner’s use of an easement to

be limited by Conner’s flexible and arbitrary choice, such as its

hours of operation, creates just such a de facto exclusive easement

and is improper.   Rather, any limitation on subsequent uses of the

easement should be imposed narrowly and in such a manner as to

prohibit only actual material interference with the existing

dominant uses of the easement.   See generally, Hayes, 243 Va. at

258, 414 S.E.2d at 822.

     For these reasons, we will reverse the trial court’s judgment

in the suit initiated by Conner limiting Shenandoah and Acres Sand

to the use of the easement only during Conner’s hours of operation

and enter final judgment for Shenandoah and Acres Sand.   Because the

trial court failed to address Shenandoah’s and Acres Sand’s request

for an injunction prohibiting Conner’s interference with their use

of the easement, we will reverse the judgment in that suit and

remand the case for further proceedings consistent with this

opinion.

                                     7
Record Nos. 972263 and 972266   —   Reversed, remanded,
                                    and final judgment.




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