PRESENT:   Kinser, C.J., Lemons, Goodwyn, Millette, Mims,
           and Powell, JJ., and Russell, S.J.

MAC R. CLIFTON, ET AL.
                                              OPINION BY
v. Record No. 121232              SENIOR JUSTICE CHARLES S. RUSSELL
                                          September 12, 2013
EVELYN ROSE WILKINSON

            FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
                    Isaac St. C. Freeman, Judge

     In this appeal we revisit the requirements for the creation

of an easement by necessity.    The question arises in the context

of a parcel that became landlocked by the exercise of the power

of eminent domain, followed by the construction of a limited-

access highway over the land condemned.

                         FACTS AND PROCEEDINGS

     In 1957, special commissioners, appointed by the circuit

court in a partition suit, conveyed to C. T. Wilkinson, Jr. an

18.35-acre tract of land in Washington County.    The tract

adjoined Route 704, a public highway.    In 1961, the State

Highway Commissioner instituted a condemnation proceeding,

acquiring a strip of land through the 18.35-acre tract for the

construction of Interstate Highway I-81, a limited-access

highway.   The taking for the highway contained 3.83 acres,

leaving two residue parcels: a 4.88-acre parcel north of I-81

that retained frontage on Route 704 and a 9.64-acre parcel south

of I-81 (the ten-acre parcel) that became landlocked as a result

of the taking.   The condemnation commissioners awarded C. T.
Wilkinson, Jr. $1450 for the land taken and $2450 for damages to

the residue property.

     After the condemnation, Mr. Wilkinson gained access to the

ten-acre tract for farming purposes by renting a neighboring 18-

acre tract now owned by Mac R. Clifton, his wife Carol Clifton,

and his sister, Beatrice Jones (the Cliftons).   The Clifton

property had access to Route 704.    Mr. Wilkinson, with the

permission of the Cliftons, used an unpaved lane across the

Clifton property to obtain access to his landlocked ten-acre

residue parcel.   That arrangement continued for 45 years.     In

2006, Mr. Wilkinson discontinued farming and ceased to rent the

Clifton property.   Mr. Wilkinson died in March 2007, and title

to his property passed to his widow, Evelyn Rose Wilkinson (the

complainant).   In the fall of 2008, the Cliftons, having failed

to reach an agreement with the complainant for a purchase of the

ten-acre parcel, terminated her permissive use of the access

lane and blocked it.

     The complainant brought this action in the circuit court,

seeking a declaratory judgment that she was entitled to use of

the access lane by reason of a prescriptive easement or, in the

alternative, an easement by necessity.   Complainant's counsel

subsequently withdrew the claim for a prescriptive easement and

the court received evidence relating to the claim for an

easement by necessity.

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       By a letter opinion, the court ruled that the complainant

was entitled to an easement by necessity over the access lane.

The court summarized the prerequisites for such an easement as:

(1) common ownership of the dominant and servient tracts "at

some time in the past," (2) the easement must be "reasonably

necessary to the enjoyment of the land," which fact must be

proved by clear and convincing evidence, and (3) there is no

other means of access (to the landlocked parcel), even one less

convenient or more expensive to develop.   Finding that the

complainant had met those requirements, the court entered an

order declaring that the complainant had a right of ingress and

egress over the access lane and enjoining any obstruction

thereof.   We awarded the Cliftons an appeal.

                              ANALYSIS

       The dispositive question presented by this appeal is one of

law.   Accordingly, we apply a de novo standard of review.

Mulford v. Walnut Hill Farm Group, LLC, 282 Va. 98, 109, 712

S.E.2d 468, 475 (2011).

       Implicit in the conclusion reached by the circuit court is

a finding that the Clifton property and the Wilkinson property

were, "at some time in the past," owned by the same person.     We

find no evidence in the record to support that finding.   The

issue whether such unity of title ever existed, however, is

immaterial in this case because the necessity for an easement of

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ingress and egress did not arise when any such unity of title

was severed.

     Vast tracts of land in Virginia were at some time in the

past held by a single individual, 1 and historic common ownership

underlies many, if not most, adjoining parcels today.   That fact

alone is not sufficient to justify an easement by necessity over

neighboring lands to the owner of a parcel that becomes

landlocked by the exercise of the power of eminent domain.

     In this case, the necessity for an easement of ingress and

egress to the ten-acre parcel arose in 1961 when the State

Highway Commissioner acquired 3.83 acres for the construction of

an interstate limited-access highway.   The Commissioner's

declaration of taking, received as an exhibit in the present



1
  The royal grant to the predecessors of Thomas, Lord Fairfax,
effective in 1663, embraced approximately five million acres
comprising all the land between the Potomac and Rappahannock
Rivers from the Chesapeake Bay westward to a line connecting the
sources of those rivers. See Fairfax's Devisee v. Hunter's
Lessee, 11 U.S. (7 Cranch) 603, 604 (1812); Maryland v. West
Virginia, 225 U.S. 1, 10 (1912); O'Dell v. Stegall, 703 S.E.2d
561, 570 (W. Va. 2010). See also David L. Ingram, The Virtual
Museum of Surveying, History of the Fairfax Line,
http://www.surveyhistory.org/the_fairfax_line1.htm (last visited
July 9, 2013). The "Fairfax Line," connecting the sources of
the two rivers, was surveyed in 1746 by commissioners appointed
by the Governor's Council in Williamsburg. Using magnetic
compass and chain, they ascertained its length to be
approximately 76 miles. That linear distance was verified in
1999 by surveyors using modern methods. The line forms several
county boundaries and a part of the boundary between Virginia
and West Virginia. Its northern point is the meeting point of
three counties in West Virginia. Id.
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case, recites that the taking was made for the purpose of the

construction of "Route 81, a Limited Access Highway, as defined

by 33-37, Code of Virginia of 1950."   Code § 33-37, then in

effect, provided:

     A limited access highway is defined as a
     highway especially designed for through
     traffic, over which abutters have no easement
     or right of light, air or access to by reason
     of the fact that their property abuts upon such
     limited access highway. 2


Therefore, the ten-acre parcel became landlocked by the

Commissioner's highway taking and not by any action taken by any

present or former owner of either the Clifton or the Wilkinson

properties or any common owner of both.

     Owners of property damaged by the exercise of the power of

eminent domain are entitled to just compensation by the self-

executing provisions of Article I, Section 11 of the

Constitution of Virginia.   Gray v. Virginia Sec'y of Transp.,

276 Va. 93, 104, 662 S.E.2d 66, 72 (2008).   Thus, C. T.

Wilkinson, Jr. sought and received an award of damages in the

1961 condemnation proceeding to compensate him for the




2
  Former Code § 33-37 was repealed effective October 1, 1970.
See 1970 Acts ch. 322. The statutory language is identical to
the language now appearing in Code § 33.1-57, which has been in
effect since October 1, 1970.
                                 5
diminution in the value of his residue property caused by the

taking.

     A right of way by necessity arises from an
     implied grant or implied reservation. Stated
     differently, it is an easement implied upon a
     conveyance of real estate. To establish such a
     right, the alleged dominant and servient tracts
     must have belonged to the same person at some
     time in the past. The right is based upon the
     idea that whenever one conveys property, he
     conveys that which is necessary for the
     beneficial use of the land and retains that
     which is necessary for the beneficial use of the
     property he still possesses.

          Thus, in the case of an implied grant, an
     easement is acquired by a grantee over the
     grantor's property when the land conveyed is
     either entirely surrounded by property of the
     grantor or else is bordered in part by the land
     of a stranger and in part by lands of the
     grantor. Under either situation, the grantee
     obtains a way of necessity over the grantor's
     property because otherwise the land conveyed
     would be inaccessible and useless.

Middleton v. Johnston, 221 Va. 797, 802-03, 273 S.E.2d 800, 803

(1981) (citations omitted).

     Although we stated above that both tracts "must have

belonged to the same person at some time in the past," the

context makes clear that an easement by necessity arises only

when the grantor of the dominant tract conveys it to another

without providing any right of access to it.   It does not arise

when a former unity of title has been severed between two tracts

without impairing any right of access to either tract.



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     We made this distinction explicit in American Small

Business Investment Co. v. Frenzel, 238 Va. 453, 456, 383 S.E.2d

731, 734 (1989):

        A right of way by necessity is based on the
     theory that when a grantor conveys property he
     does so in a manner which will allow beneficial
     use of both the property he conveys as well as
     any property he retains. This type of easement
     arises from an implied grant or implied
     reservation. It is essential to this theory
     that the necessity arise simultaneously with
     the conveyance. If the conveyance does not
     preclude the beneficial use of either the
     property conveyed or the property retained, an
     implied grant or reservation is unnecessary.
     The necessity cannot arise subsequent to the
     conveyance because "the necessity referred to
     is the subjective necessity of the inference
     that the parties so intended at the time of the
     grant" or reservation.

        To establish a right of way by necessity
     certain conditions must be met. First, the
     land must have been under common ownership at
     some time and this unity of title must have
     been severed. The severance must have given
     rise to the need for the right of way.

(Citations omitted, emphasis in original.)

                            CONCLUSION

     Because the ten-acre tract did not become landlocked by a

conveyance from a former owner severing a former unity of title,

no implied grant of a right of ingress and egress arose.

Therefore, a former common ownership of the dominant and

servient tracts, if such unity existed in the past, is

immaterial.   The ten-acre tract suffered damages by the taking


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of its access rights by eminent domain.   Those damages were

compensable in the condemnation proceeding in 1961, but did not

give rise to any implied grant of access rights over the lands

of others.

     For the foregoing reasons, we will reverse the judgment of

the circuit court and enter final judgment here for the

Cliftons.

                                Reversed and final judgment.




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