                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-2468


V. CASSEL ADAMSON, III,

                Plaintiff - Appellant,

          v.

COLUMBIA GAS TRANSMISSION, LLC,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:13-cv-00214-HEH)


Submitted:   June 25, 2014                 Decided:   July 28, 2014


Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


S. Sadiq Gill, Brittany J. Berlauk, John B. Warden, IV,
DURRETTECRUMP PLC, Richmond, Virginia, for Appellant. Travis A.
Sabalewski, REED SMITH LLP, Richmond, Virginia; Michael S.
Dingman, REED SMITH LLP, Falls Church, Virginia; Tillman J.
Breckenridge, REED SMITH LLP, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              V.   Cassel   Adamson    III     appeals   the   district   court’s

orders granting summary judgment to Columbia Gas Transmission,

LLC (“Columbia”), and entering a declaratory judgment that the

easement on Adamson’s property is sixty feet wide.                    On appeal,

Adamson challenges the weight that the district court gave to a

Virginia circuit court case interpreting the dimensions of the

same easement on Adamson’s neighbor’s property, and he asserts

that the district court did not properly consider his evidence,

which,   when      viewed   under    the   appropriate    analysis,    raised   a

genuine issue of material fact regarding the dimensions of the

easement. 1    We affirm.

              “We review de novo whether the district court erred in

granting summary judgment, viewing the facts and drawing all

reasonable inferences therefrom in the light most favorable to

[the non-moving party].”            PBM Prods., LLC v. Mead Johnson & Co.,

639 F.3d 111, 119 (4th Cir. 2011).              Summary judgment is properly

granted “if the movant shows that there is no genuine dispute as


     1
       Adamson also argues that the easement, as interpreted by
the district court, was indefinitely certain and violated the
rule against perpetuities.   We conclude that Adamson adequately
presented his claims regarding the easement’s certainty but did
not argue the rule against perpetuities in the district court.
Therefore,   we  will   not  consider   Adamson’s  rule  against
perpetuities claim for the first time on appeal.     See Muth v.
United States, 1 F.3d 246, 250 (4th Cir. 1993).



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to any material fact and the movant is entitled to judgment as a

matter of law.”       Fed. R. Civ. P. 56(a).               The relevant inquiry is

“whether    the    evidence       presents      a   sufficient     disagreement       to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.”                   Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986).

            Adamson       first     contends        that    the    district     court,

sitting in diversity, failed to give the appropriate weight to

an    unpublished   decision       of   a    Virginia      trial   court      when   the

Virginia    Supreme       Court     refused         the    petition     for    appeal,

concluding that there was no reversible error.                     A federal court

sitting in diversity has an obligation to apply the law of the

forum state as it is interpreted by the state’s highest court.

See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Ellis v.

La.-Pac. Corp., 699 F.3d 778, 782 (4th Cir. 2012) (holding that

law of forum state applies in diversity cases).                       If the highest

state court has not addressed the issue or the law is unclear,

the    federal    court    must    “forecast        a   decision   of   the    state’s

highest court” in light of “canons of construction, restatements

of the law, treatises, recent pronouncements of general rules or

policies by the state’s highest court, well considered dicta,

and the state’s trial court decisions.”                      Wells v. Liddy, 186

F.3d 505, 528 (4th Cir. 1999); see also Private Mortg. Inv.



                                            3
Servs., Inc. v. Hotel & Club Assocs., 296 F.3d 308, 312 (4th

Cir. 2002).

              We agree with Adamson that the cases were more than

similar.      However, neither party claims that the district court

was   bound     by    the    principles    of   res    judicata    or     collateral

estoppel, and the district court was not bound by the fact that

the   Virginia       Supreme    Court   refused       appeal   from   the   circuit

court’s decision.           While a refusal of an appeal is a decision on

the merits of the case, a refusal has no precedential value

where the reason for the refusal is not apparent on the four

corners    of    the    Virginia    Supreme     Court’s      order.       Sheets   v.

Castle, 559 S.E.2d 616, 618-21 (Va. 2002).                     Merely because the

Virginia Supreme Court found no reversible error does not mean

that it embraced the interpretation of Virginia law that Adamson

raised in the district court.             See id. at 619.         Moreover, there

is ample Virginia law on the construction of easements that the

district court could and did apply.               Therefore, we conclude that

the district court gave the appropriate weight to the circuit

court’s decision.

              Next,     Adamson     challenges         the     district     court’s

analysis, asserting that it did not give appropriate weight to

the intent of the parties.                When construing the terms of an

express easement created by deed, Virginia courts “apply the



                                          4
customary     rules       governing       the    construction        of      written

documents”:

      [Where] [a] deed . . . [e]xpressly create[s] an
      easement but fail[s] to define specifically its
      dimensions . . . and the deed language does not state
      the   object   or   purpose  of   the   easement,   the
      determination of the easement’s scope is made by
      reference to the intention of the parties to the
      grant, ascertained from the circumstances pertaining
      to the parties and the land at the time of the grant.

Anderson v. Delore, 683 S.E.2d 307, 310 (Va. 2009) (internal

quotation marks omitted).              “However, if the granting language

states the object or purpose of the easement, the dimensions of

the   easement     may    be   inferred    to   be    such   as   are   reasonably

sufficient    for     the      accomplishment        of   that    object.”       Id.

(internal quotation marks omitted); see also Hamlin v. Pandapas,

90 S.E.2d 829, 834 (Va. 1956).

            Virginia does not require a strict hierarchy of proof

but instead evaluates multiple sources of evidence to supply the

dimensions    of     an     easement    when     those     dimensions     are    not

specified    in    the    deed,   including     evidence     of   the   dimensions

necessary to effectuate the easement’s purpose.                      The district

court    considered         evidence      regarding       Columbia’s      need   in

effectuating the purpose of the easement and Adamson’s other

evidence that the width of the clearing on the easement had

historically been forty feet.                 We conclude that the district

court did not err in granting summary judgment to Columbia where


                                          5
Columbia’s    expert     testified     that       sixty     feet     was   required     to

effectuate the purpose of the easement and Adamson offered no

rebuttal evidence, plat maps consistently depicted the easement

as   being   sixty     feet   wide    going       back    to    the    time   that     the

original     grantor    conveyed      the       property,      and    Adamson    had    no

evidence of the size of the clearing at the time the grantors

held the property.        Adamson’s other evidence did not reach the

heart of the matter and was not sufficient to raise a genuine

issue of material fact.             Therefore, the district court did not

err in entering a declaratory judgment that the easement was

fixed at sixty feet in width. 2

             Accordingly,      we    affirm      the   district       court’s    orders.

We   dispense   with    oral    argument         because    the      facts    and   legal

contentions     are    adequately     presented        in   the      materials      before

this court and argument would not aid the decisional process.



                                                                                AFFIRMED




      2
        We decline to consider Adamson’s argument that the
easement was insufficiently certain and susceptible to being
expanded at Columbia’s discretion because it is not necessary to
resolve the case.    The district court’s declaratory judgment
stated that the easement was sixty feet wide, and the evidence
adduced in summary judgment proceedings was sufficient to find
this fact.



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