PRESENT: All the Justices

MARBLE TECHNOLOGIES, INC., ET AL.
                                                 OPINION BY
v.   Record No. 140972                   JUSTICE S. BERNARD GOODWYN
                                                June 4, 2015
STEPHEN M. MALLON, ET AL.


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                      Louis R. Lerner, Judge

      In this appeal, we consider whether an express easement

created by a 1936 deed was stationary or moved with the

changing mean high water line.

                            Background

      In 1936, the Grand View Development Corporation dissolved

and distributed most of a large tract of real estate in what is

now the White Marsh Beach area of Hampton, Virginia, to its

shareholders.   The deed distributing the land stated

           The parties to this deed take the above
      mentioned and described property subject to an
      easement on a twenty foot road as designated on the
      map recorded with this deed, which easement is to run
      with the land and from the parties hereto to their
      assigns and heirs but it is expressly stated that the
      said twenty foot road shall not become a public road,
      but merely an easement for the parties, their heirs
      or assigns to the deed.

The referenced map includes two parallel lines labeled “Twenty

Foot Road” (the easement) crossing the lots that fronted the

Chesapeake Bay.   The map depicts “S 20-00 W” as the southern

starting point of the easement.     Following the easement from

south to north, a place where the easement makes a slight bend
is labelled “980.0’ S29.55W.”    Thereafter, between the parallel

lines depicting the road is written “Along Present Mean High

Water.” *   A “Stake” is depicted at the northern terminus of the

easement.

     Due to changes in the sand and water levels since 1936,

the easement, as located on the map, is now under the

Chesapeake Bay.    Because of a dispute over whether the easement

still exists, Stephen M. Mallon, Helen G. Mallon, Arne

Hasselquist, Lauren Hasselquist and Grandview Islanders, LLC

(collectively, “Mallon”), landowners of some of the properties

conveyed by the 1936 deed, sought a declaratory judgment in the

Circuit Court of the City of Hampton.    They claim that the

location of the express easement moved with the mean high water

line as the beach eroded.

     Respondents Marble Technologies, Inc. and Sebastian

Plucinski (collectively, “Marble”) filed an answer.    They

assert that the easement has not moved and the land where the



     *
       The National Oceanic and Atmospheric Administration
defines “mean high water line” as the location on the map where
the land meets the average “maximum height reached by a rising
tide” over the “specific 19-year period adopted by the National
Ocean Services as the official time segment over which tide
observations are taken.” United States Department of Commerce,
Tide and Current Glossary 11, 15, 17 (2000), available at
http://tidesandcurrents.noaa.gov/publications/glossary2.pdf
(last visited June 2, 2015).




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easement was located is now on the bottom of the Chesapeake

Bay, resulting in extinguishment of the easement.

     The circuit court granted several opportunities for the

addition of new parties.   On November 30, 2012, upon joint

motion of the parties, the court ordered that the style of the

case be amended to add additional parties who had an interest

in the suit.   On March 12, 2013, the court granted Marble's

motion for leave to add additional defendants to its

counterclaim, cross-claim and third party complaint.   On April

3, 2013, despite objection by Mallon, the circuit court granted

Marble's motion for a continuance of the trial to add necessary

parties.

     Although the amended complaint, counterclaim, cross-claim

and third party complaint include more than forty individuals

and entities as parties and no additional parties were added

after the April 3, 2013 continuance, approximately six months

later, Marble asked for another continuance of the trial so

that necessary parties could be added.   The court denied the

request for a continuance and proceeded with the trial on

October 30, 2013.   Prior to trial, the parties stipulated that

not all of the successors-in-title of the properties conveyed

in the deed were parties to this action.

     At trial, the circuit court considered the issue of

whether the express terms of the easement were such that the


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easement moved with the changing coastline.    The court held

that the deed and map were ambiguous and considered parol

evidence to ascertain the intent of parties to the deed and

map.   The parties presented conflicting expert testimony on

whether the map’s drafter intended to have the easement remain

stationary or move with the changing coastline.

       The circuit court ruled that Mallon has a variable express

easement that moves with the mean high water line.    Marble

appeals.

       Marble assigns error as follows:

            1. The lower court erred in holding a trial and
       entering a final order without first joining as
       necessary parties all the landowners that would be
       affected by any declaratory judgment rendered.

            2. The lower court erred in holding that the
       twenty foot easement on the road established in 1936
       was not extinguished by the subsequent erosion of the
       shoreline.

            3. The lower court erred in finding the
       relevant deed and plat ambiguous and in allowing
       Plaintiffs’ expert to offer parole [sic] evidence
       regarding the intent of the drafters of those
       documents.

                              Analysis

       Marble argues that the circuit court erred by failing to

join all necessary parties and rendering final judgment when

all parties who owned property that was part of the 1936

conveyance were not before the court.     Mallon argues that the




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circuit court did not err in deciding the case without adding

additional parties.

      Concerning the issue of necessary parties, we have stated

that “‘[a]ll persons interested in the subject matter of a suit

and to be affected by its results are necessary parties.’”

Michael E. Siska Revocable Trust v. Milestone Dev., LLC, 282

Va. 169, 173, 715 S.E.2d 21, 23 (2011) (quoting Bonsal v. Camp,

111 Va. 595, 598, 69 S.E. 978, 979 (1911)).   Generally, a court

should only decide a case on its merits if all necessary

parties are before it.   Id. at 173-81, 715 S.E.2d at 23-27.

However, the necessary party doctrine does not implicate

subject matter jurisdiction.   Id. at 176-81, 715 S.E.2d at 25-

27.   As relates to necessary parties, a circuit court has

discretion to take steps to correct defects and to decide

whether to exercise its discretion to permit the case to

continue with the existing parties.   Id.   We review a circuit

court’s decision to allow a matter to proceed without necessary

parties for an abuse of discretion.   Id.

      A court can choose to proceed without a necessary party if

(1) it is “practically impossible” to join a necessary party

and the missing party is represented by other parties who have

the same interests; (2) the missing party’s interests are

separable from those of the present parties, so the court can

rule without prejudicing the missing party; or (3) a necessary


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party cannot be made a party, but the court determines that the

party is not indispensable.   Id. at 176, 179-80, 715 S.E.2d at

25, 27 (citation and internal quotation marks omitted); Rule

3:12(c).   With the numerous and varied parties added to the

action, the multiple opportunities the court provided the

litigants to add parties and no claim that any of the allegedly

missing parties were indispensable, we conclude that the

circuit court did not abuse its discretion in allowing the case

to proceed to trial with the parties it had before it.

     Marble contends that the deed and map unambiguously

designated the easement as existing at a specific location and

that the easement has not moved with the erosion of the land.

Moreover, Marble claims that because the deed and map

unambiguously dictated that the easement was stationary, the

circuit court erred in considering parol evidence.

     Mallon asserts that the court correctly allowed parol

evidence to interpret the deed and map because the map is

ambiguous about whether the easement moves with the mean high

water line.   They claim that the easement has moved over time

to follow the changing mean high water line.

     We review de novo a circuit court’s interpretation of

words in a deed.   Beeren & Barry Invs., LLC v. AHC, Inc., 277

Va. 32, 37, 671 S.E.2d 147, 150 (2009).   If the language in a

deed creating an easement is unambiguous, courts should


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interpret the deed solely based on the deed’s language.

Pyramid Dev., L.L.C. v. D&J Assocs., 262 Va. 750, 754, 553

S.E.2d 725, 728 (2001).   “Only when the language is ambiguous

may a court look to parol evidence, or specifically, to the

language employed in light of the circumstances surrounding the

parties and the land at the time the deed was executed” in

order to discern the parties’ intent.    Id. (citation and

internal quotation marks omitted).

     In this case, the deed stated that the property recipients

took their property “subject to an easement on a twenty foot

road as designated on the map recorded with this deed.”      The

accompanying map depicts “S 20-00 W” as the southern end of the

easement.   Additionally, it denotes a point where the easement

makes a slight bend as “980.0’ S29.55W.”    It designates the

easement as running “Along Present Mean High Water.”    The map

notes the location of a “Stake” at the northern end of the

designated “Twenty Foot Road.”

     Mallon claims that the designation “Along Present Mean

High Water” means that the location of the express easement

moves with the movement of the mean high water line.    We must

discern the meaning of “present.”    Webster’s Third New

International Dictionary defines “present” as “now existing or

in progress: begun but not ended: now being in view, being

dealt with, or being under consideration: being at this time:


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not past or future: contemporary.”   Webster’s Third New

International Dictionary 1793 (1993); see also Black’s Law

Dictionary 1374 (10th ed. 2014) (defining “present” as “now

existing; at hand”).

     The map depicts the easement as existing “Along Present

Mean High Water,” meaning the line as it existed in 1936 when

the map was created.   (Emphasis added.)   This is confirmed by

the fact that the map utilizes metes and bounds and a

stationary marker to show the easement’s location.    Thus, we

hold that the map is unambiguous regarding the location of the

easement.   The metes and bounds descriptions and the stationary

markers dispel any claim of ambiguity.     Nothing on the map or

in the deed indicates that the easement was to move with the

changing coastline.    Compare Lipke v. Windy Gates, LLC, 20 LCR

440, 448 (Mass. Land Ct. 2012) (finding beach access easements

were not extinguished because the easements were described in

“non-specific terms of the sort that can readily accommodate a

changing seashore” (emphasis added)), aff'd, 85 Mass. App.

Unpub. LEXIS 254, at *11 (2014) (“[A]s the Land Court judge

describes, the easements were granted using nonspecific terms,

which accommodate a changing landscape.” (emphases added)),

with Bubis v. Kassin, 733 A.2d 1232, 1234, 1239 (N.J. Super.

Ct. App. Div. 1999) (indicating that an express private

easement over a “certain strip of land . . . as shown on [a]


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Map . . . and described as follows:      Bounded on [all sides]”

did not move inland with the mean high water line despite the

fact that the mean high water line completely eclipsed the

encumbered strip of land (emphases added)); see also Tysen v.

Cedar Grove Beach Corp., 188 N.Y.S. 361, 363 (N.Y. App. Div.

1921) (“[T]he washing away of the original locus in quo by

erosion would seem to make the alleged easement . . . very

doubtful and shadowy.”).

     Because the deed and map are unambiguous, there was no

need for the circuit court to review evidence beyond the

documents themselves to interpret them.      Therefore, the circuit

court erred in considering parol evidence.

     The easement never moved from the mean high water line as

it existed in 1936.   The beach has eroded in the meantime, and

the land where the easement was once located is now under the

Chesapeake Bay and cannot serve as a road.      Thus, the express

easement has been extinguished.       See Corbett v. Ruben, 223 Va.

468, 472, 290 S.E.2d 847, 849 (1982) (holding that courts may

presume an easement by grant without a term “was intended to be

terminated when the purpose for which it was created can no

longer be served”); McCreery v. Chesapeake Corp., 220 Va. 227,

233, 257 S.E.2d 828, 831 (1979) (easement was extinguished by

cessation of the purpose for which it was granted); Hudson v.

American Oil Co., 152 F. Supp. 757, 765 (E.D. Va. 1957), aff’d


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on other grounds, 253 F.2d 27 (4th Cir. 1958) (stating that an

easement can be extinguished by an Act of God); see generally

Code §§ 28.2-1200; 28.2-1202 (dictating that in most

circumstances, when land is below a bay’s mean low-water mark

and thus is on the bed of that bay, it is property of the

Commonwealth).

                           Conclusion

     Accordingly, for the reasons stated, we reverse the

judgment of the circuit court and hold that the express

easement created by the 1936 deed has been extinguished.

                                    Reversed and final judgment.




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