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

NORFOLK SOUTHERN RAILWAY COMPANY
                                             OPINION BY
v.   Record No. 131066             JUSTICE ELIZABETH A. McCLANAHAN
                                          APRIL 17, 2014
E. A. BREEDEN, INC.

            FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                        James V. Lane, Judge

     Norfolk Southern Railway Company (Norfolk Southern) appeals

from the judgment of the circuit court granting permanent

injunctive relief to E. A. Breeden, Inc. (Breeden) requiring

Norfolk Southern to restore a private grade crossing over its

railway tracks in Rockingham County.    We will affirm the

judgment of the circuit court.

                           I.      BACKGROUND

     The current action involves a private grade crossing across

Norfolk Southern's railway tracks created pursuant to a crossing

agreement dated March 26, 1940, and recorded in the circuit

court clerk's office of Rockingham County (Crossing Agreement).

The Crossing Agreement was entered into by the owners of the

156-acre T. L. Yancey estate (Yanceys) and Norfolk & Western

Railway Company (Norfolk & Western), a predecessor to Norfolk

Southern.

     Pursuant to the Crossing Agreement, Norfolk & Western

agreed to construct and maintain a new private grade crossing

for use by the Yanceys in exchange for the Yanceys' agreement to
release their rights to the two then existing private crossings

that were to be abandoned. 1   The Crossing Agreement expressly

"grant[ed] unto the [Yanceys] the right and privilege of a

private grade crossing about 18 feet in width, over, upon and

across the right of way and tracks of [Norfolk & Western]" and

obligated Norfolk & Western "to construct and maintain the said

crossing.".   The Crossing Agreement specifically provided:

          [The Yanceys] covenant and agree that the
          private crossing to be constructed hereunder
          shall be used solely in their own interest
          and for their own benefit, and that they
          will indemnify and save harmless the Railway
          Company from any and all claims for damage
          or injury to person, including death, or
          property, resulting from their use of said
          grade crossing.

In addition, the Crossing Agreement stated that it "shall be

binding upon the heirs, executors, administrators, successors

and assigns of the parties hereto."

     In 1996, Breeden acquired title to a 2.56 acre tract that

was originally a part of the T. L. Yancey estate tract and, in

1999, leased a house and yard located upon this tract to Todd

and Michelle Ditton.   In 2001, Todd Ditton was injured when his

vehicle was struck by a Norfolk Southern train at the crossing.



     1
       At the time the Crossing Agreement was entered into, the
Yancey Estate was located on both sides of the railroad tracks
and had access to a public road, now State Route 642, and U.S.
Highway No. 12, now U.S. Route 340, located on the opposite side
of the railroad tracks from State Route 642.
                                  2
Ditton filed an action against Norfolk Southern and the parties

settled the action in 2005.

     In 2006, Norfolk Southern filed an action against Breeden

seeking to recover the settlement amount as well as the costs

and attorney's fees associated with the Ditton litigation based

on the indemnity clause of the Crossing Agreement

(indemnification litigation).    The circuit court ruled that

Norfolk Southern was not entitled to indemnification or

contribution from Breeden.    In reaching its decision, the

circuit court ruled that the Crossing Agreement was a covenant

running with the land, and that Ditton, as lessee of Breeden,

was a successor to the Crossing Agreement and had a right to use

the crossing.

     The circuit court further ruled that Ditton's use of the

crossing was not attributable to Breeden and, therefore, Breeden

was not obligated under the Crossing Agreement to indemnify

Norfolk Southern for the costs incurred and damages paid by

Norfolk Southern arising from Ditton's use of the crossing.

Norfolk Southern filed a petition for appeal with this Court,

which petition was refused by an unpublished Order.    See Norfolk

Southern Railway Company v. E. A. Breeden, Inc., Record No.

080429 (June 13, 2008).

     At some time subsequent to the conclusion of the

indemnification litigation, Norfolk Southern removed the private

                                  3
crossing.   Breeden filed a complaint against Norfolk Southern

seeking a permanent injunction requiring Norfolk Southern to

replace and maintain the crossing.   Breeden also sought

compensatory and punitive damages alleging breach of contract,

tortious interference with the right of way, and nuisance.

     Norfolk Southern filed a demurrer to the complaint on the

grounds that the prior rulings of the circuit court established,

as a matter of law, that Breeden materially breached the

Crossing Agreement and was not entitled to enforce it because

Breeden permitted use by Ditton that was not solely in Breeden's

interest and not solely for Breeden's benefit.   Overruling the

demurrer, the circuit court held that based on its previous

rulings that Ditton was a successor in interest under the terms

of the Crossing Agreement and his use of the crossing was

independent of Breeden, it could not rule that Breeden

materially breached the Crossing Agreement as a matter of law. 2

     Breeden filed a motion for summary judgment seeking a

judgment that Norfolk Southern was obligated to maintain the

crossing and an order requiring Norfolk Southern to replace the

private crossing on the grounds that the circuit court's prior

holdings were binding under principles of collateral estoppel.




     2
       The circuit court sustained Norfolk Southern's demurrer to
the claim for tortious interference and punitive damages.
                                 4
Norfolk Southern opposed the motion for summary judgment on the

grounds that there were genuine issues of material fact as to

whether Breeden sustained actual injury or damages to recover on

a breach of contract claim and that Breeden was not entitled to

injunctive relief because it had not presented evidence of

irreparable harm and lack of an adequate remedy at law.       In

addition, Norfolk Southern argued that Breeden's motion for

summary judgment failed to address the affirmative defenses

raised by Norfolk Southern, including estoppel, laches, unclean

hands, and first material breach.

     The circuit court denied Breeden's motion for summary

judgment and held an evidentiary hearing on Breeden's request

for permanent injunctive relief.        Upon consideration of the

evidence presented at the hearing and certain concessions made

by Norfolk Southern, the circuit court granted the request for

injunctive relief requiring Norfolk Southern to replace the

crossing.

                            II.     ANALYSIS

     A.     First Material Breach

     Norfolk Southern argues that the circuit court erred in

overruling the demurrer and enforcing the Crossing Agreement

because Breeden committed the first material breach of the

Crossing Agreement, thereby precluding Breeden from enforcing

the agreement.   See, e.g., Countryside Orthopaedics, P.C. v.

                                    5
Peyton, 261 Va. 142, 154, 541 S.E.2d 279, 285 (2001); Horton v.

Horton, 254 Va. 111, 115-16, 487 S.E.2d 200, 203-04 (1997).

     We have not previously applied the doctrine of first

material breach to vested property rights granted under a real

covenant.   Indeed, this doctrine is ill-suited to address

situations in which the covenantor seeks to excuse its

unilateral termination of real property interests held by other

landowners.   Nevertheless, the circuit court did not err in

concluding there was no material breach by Breeden.    In

previously determining the enforceability of the indemnity

clause of the Crossing Agreement in the indemnification

litigation, the circuit court ruled that the Crossing Agreement

is a valid covenant running with the land such that Breeden, as

a successor to the Yanceys, was entitled to the use and benefits

of the crossing. 3   Additionally, the circuit court ruled that

Ditton, as Breeden's lessee, was a successor under the terms of




     3
       Both parties asserted that the circuit court's prior
rulings were binding in the current litigation under principles
of collateral estoppel, and the circuit court agreed with these
assertions. Neither party has assigned error to the circuit
court's ruling in this case that it was bound by its previous
rulings that the Crossing Agreement was a covenant running with
the land and that Breeden and its lessee were successors under
the Crossing Agreement. Therefore, we will not revisit those
issues. See Rule 5:25 (no ruling of the trial court will be
considered "as a basis for reversal" unless objection stated).



                                  6
the Crossing Agreement and, therefore, had a legal right to

utilize the crossing independent of whether Breeden permitted

such use by Ditton.    The circuit court further ruled that

"Ditton's use of the crossing did not solely benefit [Breeden]

but benefited Ditton independently."    Since the Crossing

Agreement expressly "grant[ed] unto the [Yanceys and their

successors] the right and privilege" to use the crossing "solely

in their own interest and for their own benefit," Ditton's use

of the crossing for his own benefit was not a violation of the

Crossing Agreement.

     Notwithstanding Ditton's right under the Crossing Agreement

to use the crossing as a successor for his own benefit, Norfolk

Southern argues that Breeden breached the Crossing Agreement by

allowing its lessee to use the crossing in a means that was not

solely in Breeden's own interest or for Breeden's own benefit.

Norfolk Southern's argument, however, has no merit because the

Crossing Agreement did not prohibit the conveyance or lease of

the property benefiting from the crossing and did not require

that the use of the crossing be excluded from any conveyance or

lease of the property benefiting from the crossing.    To the

contrary, the Crossing Agreement provided it was "binding upon

the heirs, executors, administrators, successors and assigns of

the parties hereto."    Therefore, the Crossing Agreement did not

obligate Breeden to preclude its lessee from using the crossing

                                  7
for the lessee's benefit and Breeden cannot be deemed to have

breached the Crossing Agreement in not preventing such use. 4

     B.    Injunctive Relief

     Norfolk Southern also argues the circuit court erred in

granting the injunction without requiring Breeden to prove harm

and without balancing the equities.   "[T]he decision to grant or

deny an injunction is within the discretion of the trial court,

and it will not be disturbed on appeal unless it is plainly

wrong."   Snead v. C&S Props. Holding Co., 279 Va. 607, 613, 692

S.E.2d 212, 215 (2010).

     At the hearing, Breeden introduced evidence regarding its

use of the crossing and safety concerns caused by the removal of

the crossing due to the lack of ingress or egress during times

of high water or flooding that blocked other access.   Although

Norfolk Southern proffered evidence through cross-examination of

Breeden's witness regarding the lease payments received by

Breeden before and after the removal of the crossing and an

appraisal obtained by Breeden estimating a diminution in value




     4
       If Norfolk Southern believed that Breeden's action in
leasing the property without placing restrictions on the use of
the crossing increased the burden originally contemplated by the
parties under the Crossing Agreement, its remedy was to seek
equitable relief against Breeden, not to remove the crossing,
thereby terminating the rights of all landowners that were
parties to or successors under the agreement.
                                8
of $7,500 resulting from the removal of the crossing, the

circuit court disallowed the evidence.

     When Breeden began to introduce evidence relevant to

whether it had acquiesced in the removal of the crossing or

whether it was guilty of laches in failing to object to the

removal of the crossing, Norfolk Southern conceded it was not

contesting those issues.   In fact, Norfolk Southern did not

bring witnesses to the hearing.   Norfolk Southern argued it was

defending the request for an injunction on the grounds that

Breeden had not suffered any injury, that any harm was

outweighed by the burden to Norfolk Southern if the crossing is

installed, and that Breeden had an adequate remedy at law.     In

light of those concessions, the circuit court determined no

further evidence from Breeden was necessary.   The circuit court

ruled that the Crossing Agreement was specifically enforceable

and that it would order Norfolk Southern to reinstall the

crossing. 5

     We have previously held that an injunction is the

appropriate remedy for enforcement of a real property right.

See, e.g., Snead, 279 Va. at 608, 616, 692 S.E.2d at 212, 216;




     5
       Acting on Breeden's representation that it would no longer
seek damages on its claim for breach of contract, the circuit
court ordered the removal of the scheduled trial from its
docket.
                                  9
Pizzarelle v. Dempsey, 259 Va. 521, 532, 526 S.E.2d 260, 266

(2000); Sonoma Development, Inc. v. Miller, 258 Va. 163, 169-70,

515 S.E.2d 577, 580-81 (1999); Boerner v. McCallister, 197 Va.

169, 172, 89 S.E.2d 23, 25 (1955).    This is so because the

violation of a real property interest is deemed "'irreparable

and the owner protected in the enjoyment of his property whether

such be sentimental or pecuniary.'"    Levisa Coal Co. v.

Consolidation Coal Co., 276 Va. 44, 62, 662 S.E.2d 44, 54 (2008)

(quoting Boerner, 197 Va. at 172, 89 S.E.2d at 25)). 6   In such a

case, we have noted "that the question was not one of

reasonableness, nor was it a case in which the equities should

be balanced."   Snead, 279 Va. at 615, 692 S.E.2d at 216.

     We have also recognized that a party seeking to enforce a

real covenant is generally entitled to the equitable remedy

requested upon showing the validity of the covenant and its

breach.   Perel v. Brannan, 267 Va. 691, 700, 594 S.E.2d 899, 904

(2004).   See, e.g., Sonoma Development, 258 Va. at 169-70, 515

S.E.2d at 580-81 (evidence with regard to an appropriate remedy

in equity is unnecessary where a restrictive covenant was valid

and the breaching party had notice of the covenant); Marks v.



     6
       In recognizing that an injury to a real property right is
deemed irreparable, we contrasted injunctions sought to enforce
a contract right concerning personal property from injunctions
sought to enforce a real property right. Levisa Coal, 276 Va.
at 61-62, 662 S.E.2d at 53-54.
                                10
Wingfield, 229 Va. 573, 577, 331 S.E.2d 463, 465 (1985) (trial

court erred in denying injunction to enforce restrictive

covenant where restrictions were reasonable and enforceable);

Spilling v. Hutcheson, 111 Va. 179, 183, 68 S.E. 250, 252 (1910)

("The injunction in this case is granted almost as a matter of

course upon a breach of the covenant.   The amount of damages,

and even the fact that the plaintiff has sustained any pecuniary

damages, are wholly immaterial.").

     A defendant may avoid the imposition of the equitable

remedy sought for violation of a real covenant "if such a remedy

would create a hardship or injustice that is out of proportion

to the relief sought, if performance by the defendant would be

impossible, or if the enforcement of the decree would be

unusually difficult for the court."   Perel, 267 Va. at 700, 594

S.E.2d at 904-05 (footnotes omitted).   "However, on the

questions of hardship, injustice, or impossibility, the

defendant bears the burden of providing the elements of the

defense."   Id. at 700, 594 S.E.2d at 905.   Nevertheless, "[t]he

doctrine of 'balancing of equities' must be viewed in light of

our long-standing pronouncement that a private landowner is to

be protected for injuries he may sustain 'even though inflicted

by forces which constitute factors in our material development

and growth.'"   Blue Ridge Poultry & Egg Co. v. Clark, 211 Va.

139, 144, 176 S.E.2d 323, 327 (1970) (quoting Townsend v.

                                11
Norfolk Ry. & Light Co., 105 Va. 22, 49, 52 S.E. 970, 979

(1906)).

     Based on the rulings of the circuit court in the

indemnification litigation, Breeden was the successor in

interest to the Crossing Agreement, a valid covenant running

with the land, under which Norfolk Southern was obligated to

construct and maintain the private grade crossing.   It is

undisputed that Norfolk Southern had notice of the covenant and

removed the crossing to which Breeden was granted "the right and

privilege."   Therefore, Breeden was entitled to an injunction

requiring the replacement of the crossing unless Norfolk

Southern proved "such a remedy would create a hardship or

injustice that is out of proportion to the relief sought, if

performance by the defendant would be impossible, or if the

enforcement of the decree would be unusually difficult for the

court."    Perel, 267 Va. at 700, 594 S.E.2d at 904-05 (footnotes

omitted).

     Breeden presented evidence regarding its use of the

crossing, including its need to access the crossing during

periods of high water.   Norfolk Southern did not present its own

witnesses at the hearing but argued only that Breeden was not

actually injured, that any injury was outweighed by the burden

to Norfolk Southern, and that Breeden had an adequate remedy at


                                 12
law.       The only evidence Norfolk Southern sought to introduce,

which was through cross-examination of Breeden's witness, was

the evidence regarding diminution in value and Breeden's lease

payments.      However, Breeden was not required to prove damages or

an inadequate remedy at law.      See Sonoma Development, 258 Va. at

169-70, 515 S.E.2d at 580-81; Spilling v. Hutcheson, 111 Va. at

183, 68 S.E. at 252; see also       Springer v. Gaddy, 172 Va. 533,

542, 2 S.E.2d 355, 358-59 (1939) ("An owner whose land is

subject to equitable restrictions cannot violate them, and when

suit is brought against him relieve his property from the

restriction by the payment of damages.") (internal quotation

marks omitted).      Furthermore, Norfolk Southern did not seek to

present evidence as to the hardship or burden that would be

imposed by enforcement of the covenant. 7     Accordingly, the




       7
       The decision in Perel does not support the view that this
case should be remanded for the circuit court to take evidence
regarding the appropriateness of an injunction. The circuit
court in Perel denied the request for an injunction on the
ground that the retaining wall did not violate the covenants.
We reversed, holding that the retaining wall did violate the
covenants and remanded the case to permit the homeowners to
prove that removal of the retaining wall would create a
hardship. Perel, 267 Va. at 702, 594 S.E.2d at 905. In this
case, Breeden proved the breach of a valid real covenant, and
Norfolk Southern did not seek to present any evidence of
hardship in the circuit court. Similarly, in Levisa Coal, which
did not involve a real covenant, the circuit court denied
injunctive relief on the ground that Levisa Coal did not prove a
violation of a real property interest. Holding that the circuit
erred in its ruling, we remanded the case for the circuit court
                                    13
circuit court did not abuse its discretion in ordering the

requested injunctive relief. 8

     C.      Right to a Jury

     Norfolk Southern contends that the circuit court erred in

hearing Breeden's request for a permanent injunction prior to

the trial scheduled for Breeden's breach of contract claim

because it deprived Norfolk Southern of its right to a jury.

     When the circuit court scheduled the hearing on Breeden's

request for an injunction, Norfolk Southern made an objection to

the circuit court's decision to proceed with the injunction

hearing prior to the scheduled trial, which the circuit court

overruled.    Thereafter, Norfolk Southern filed a motion to

reconsider on the grounds that the court's action violated Rule




to consider Levisa Coal's request for an injunction.   Levisa
Coal, 276 Va. at 59, 662 S.E.2d at 52.
     8
       Norfolk Southern also argues that because the covenant was
affirmative rather than negative, the principles this Court has
applied to restrictive covenants are inapplicable. We have
recognized that affirmative covenants respecting real property
interests will run with the land. See Chesapeake & Ohio Ry. Co.
v. Willis, 200 Va. 299, 303-04, 105 S.E.2d 833, 837 (1958)
(covenant to build fence was covenant running with the land and
was enforceable unless broken by predecessors in title). We
have not previously made any distinction between the
enforceability of affirmative covenants and negative covenants
and see no reason to do so here. See, e.g., Recco v. Chesapeake
& Ohio Ry. Co., 32 S.E.2d 449, 453-54 (W.Va. 1944) (landowners
entitled to seek specific performance compelling railroad to
rebuild crossing pursuant to covenant in 1870 deed, and court
will not balance the equities where a vested property right will
be destroyed by violation of covenants).
                                 14
3:22(e) and deprived Norfolk Southern of its right to a jury

trial on issues of fact common to the claims for injunctive

relief and damages.   The circuit court denied the motion to

reconsider and proceeded with a hearing on Breeden's request for

a permanent injunction.

     It is well-established that a party has no right to a jury

trial on a claim for equitable relief.     "[W]hen a party seeks

injunctive relief, he must sue in equity.    In equity, a litigant

has no constitutional right to trial by jury, and, absent a plea

in equity, no statutory right."    Wright v. Castles, 232 Va. 218,

222, 349 S.E.2d 125, 128 (1986) (citations omitted); see also

Code § 8.01-336(D).   Norfolk Southern did not file a plea in

equity.   Therefore, Norfolk Southern did not have a

constitutional or statutory right to a jury on Breeden's claim

for injunctive relief.

     While acknowledging that it had no right to a jury on the

claim for injunctive relief, Norfolk Southern contends that the

circuit court violated Rule 3:22(e) because the circuit court

resolved factual disputes that were at issue in the breach of

contract claim.   Rule 3:22(e) provides:

           In any case when there are both jury and
           non-jury issues to be tried, the court shall
           adopt trial procedures and a sequence of
           proceedings to assure that all issues
           properly heard by the jury are decided by
           it, and applicable factual determinations by


                                  15
          the jury shall be used by the judge in
          resolving the non-jury issues in the case.

Under the plain language of the Rule, it only applies when there

are jury issues to be tried.   Although Breeden's breach of

contract claim required it to prove damages resulting from the

breach, Breeden was not required to prove monetary damages or

quantify the harm resulting from the removal of the crossing to

seek an injunction.   See Sonoma Development, 258 Va. at 169-70,

515 S.E.2d at 580-81; Spilling, 111 Va. at 183, 68 S.E. at 252.

Therefore, there were no factual determinations before the

circuit court at the injunction hearing that were common to the

breach of contract claim.   Accordingly, Rule 3:22(e) was not

applicable.

     D.   Breeden's Motion for Attorney's Fees as Sanctions

     Following the injunction hearing, Breeden moved for

reimbursement of attorney's fees pursuant to the sanction

provisions of Code § 8.01-271.1 on the grounds that Norfolk

Southern asserted there were genuine issues of material facts in

dispute in opposition to the motion for summary judgment but

failed to produce any evidence at the hearing on the injunction

to support its defenses to the injunction, thus rendering the

injunction hearing unnecessary.    Finding no violation of Code §

8.01-271.1, the circuit court denied Breeden's motion.   Breeden

assigns cross-error to this ruling and contends the circuit


                                  16
court abused its discretion in denying its motion for attorney's

fees.

        In response to Breeden's motion for summary judgment,

Norfolk Southern filed an opposition in which it asserted that

Breeden must prove damages as an essential element of its case,

and irreparable harm and lack of an adequate remedy at law for

an injunction, all of which were in dispute.     Additionally,

Norfolk Southern asserted that there were affirmative defenses

pled by it, including the doctrine of first material breach,

estoppel, laches, and unclean hands on which issues of fact

remained.    Although Norfolk Southern did not contest laches and

estoppel at the hearing, it insisted that the circuit court

should determine whether Breeden proved actual injury and lack

of an adequate remedy at law.     Norfolk Southern also argued the

circuit court should weigh the burden to Norfolk Southern if

injunctive relief was awarded against the harm to Breeden if it

was not awarded.

        Code § 8.01-271.1 provides, in pertinent part, that

signature of an attorney on any pleading, written motion, or

other writing constitutes a certificate that "to the best of his

knowledge, information and belief, formed after reasonable

inquiry, it is well grounded in fact and is warranted by

existing law or a good faith argument for the extension,


                                  17
modification, or reversal of existing law" and that "it is not

interposed for any improper purpose, such as to harass or to

cause unnecessary delay or needless increase in the cost of

litigation."   The circuit court's decision to deny the motion

for sanctions will only be reversed for an abuse of discretion.

Northern Va. Real Estate v. Martins, 283 Va. 86, 103, 720 S.E.2d

121, 129 (2012).

     The circuit court found that "[Norfolk Southern's]

pleadings, written motions, and other papers were all well

grounded in fact and warranted by existing law and that they

were not interposed for any improper purpose."   The circuit

court further found that because Norfolk Southern believed that

it was improper to bifurcate the injunction hearing and trial on

damages, it "chose not to call company witnesses because it did

not want to run the risk of a claim of waiver based on having

presented evidence outside the scope of [Breeden's] proof."

Therefore, according to the circuit court, Norfolk Southern's

"trial strategy" decisions were also "well grounded and not done

with any improper purpose."

     We cannot conclude the circuit court abused its discretion.

Norfolk Southern opposed the motion for summary judgment, among

other reasons, on the grounds that Breeden was required to prove

actual damages and an inadequate remedy at law on which it


                                18
asserted there were disputed issues of fact.    Norfolk Southern

continues to maintain on appeal that the circuit court erred in

failing to require proof of actual injury, the lack of an

adequate remedy at law, and in failing to balance the equities

in considering the injunction.    Although Norfolk Southern chose

not to call its corporate witnesses and contest the issues of

laches and estoppel at the injunction hearing and did not

prevail on its arguments regarding Breeden's burden to prove

damages, there is no evidence that Norfolk Southern's asserted

defenses were not well-grounded or interposed for an improper

purpose.

                        III.     CONCLUSION

     For the foregoing reasons, we will affirm the judgment of

the circuit court.

                                                           Affirmed.


SENIOR JUSTICE RUSSELL, with whom JUSTICE LEMONS and JUSTICE
MILLETTE join, dissenting.

     The following essential facts are undisputed:   The

predecessors in title of the present parties entered into a

"Crossing Agreement" in 1940 that granted reciprocal benefits

and imposed reciprocal obligations upon them.   The Railroad's

benefit was the consolidation of two former crossings into one.

The landowners' benefit was the Railroad's obligation to provide

a new, unguarded crossing over its right-of-way to the

                                  19
landowners' property and to maintain it in perpetuity.   The

landowners' reciprocal obligation was to ensure that the

crossing was a private one that "shall be used solely in their

own interest and for their own benefit."   The landowners also

agreed to "indemnify and save harmless the [Railroad] from any

and all claims for damage or injury to [any] person, including

death, or property, resulting from their use of said grade

crossing."   The landowners also agreed that "the said private

crossing shall not be converted at their demand or request or

with their consent into a public crossing."    The agreement was

made binding upon the parties' "heirs, executors,

administrators, successors and assigns."   The agreement was

recorded among the land records and constitutes a covenant

running with the land.

     The present parties both insist upon their benefits under

the 1940 agreement, but both have refused to honor the

reciprocal obligations it imposes upon them.   First, the present

owner leased a part of the property to a residential tenant

without imposing any limitation on the tenant's right to use the

crossing.    The tenant was injured while using the crossing and

sued the Railroad.   The Railroad settled the case with the

tenant and claimed indemnity from the owner under the 1940

agreement.   The circuit court held that the indemnity agreement

was inapplicable because the tenant had an independent right to

                                 20
use the crossing and that his use at the time of the accident

was not as agent or for the benefit of the owner.   The Railroad,

taking the position that the owner was now accepting all of its

benefits under the 1940 agreement while successfully evading all

its reciprocal obligations, closed the crossing.    Such was the

posture of the case when it came before the circuit court on the

owner's claim for a permanent injunction.

     Permanent injunctions and decrees of specific performance

are the most drastic remedies courts of equity are empowered to

award, but they are nevertheless equitable remedies.   They are

to be imposed only where, after careful consideration of the

facts and circumstances of each particular case, the chancellor

determines that such remedy is necessary to attain the most

equitable result.

     Here, the circuit court refused to hear evidence of the

facts and circumstances relating to the propriety of an

injunction, apparently because the court regarded injunctive

relief automatically justified by the owner's showing that the

Railroad had closed the crossing.   The court may have relied on

statements we made in an earlier case involving breach of a

restrictive covenant, where we said that in such a case an

injunction is granted "almost as a matter of course" and that

"[t]he amount of damages, and even the fact that the plaintiff

ha[d] sustained any pecuniary damages, are wholly immaterial."

                               21
Spilling v. Hutcheson, 111 Va. 179, 183, 68 S.E. 250, 252

(1910).

     In a recent case involving a retaining wall erected in

breach of a restrictive covenant, however, we departed from the

sweeping language in Spilling.   In Perel v. Brannan, 267 Va.

694, 594 S.E.2d 899 (2004), we said:

     While the retaining wall is clearly in
     violation of the covenants, [the plaintiff] is
     not automatically entitled to have the
     retaining wall removed. When parties have a
     dispute over an alleged violation of a
     restrictive covenant, the plaintiff, or
     covenantee, may file suit in the court for
     equitable enforcement of the restrictive
     covenant. A restrictive covenant may be
     enforced by injunctive relief or through
     specific performance. The party seeking
     enforcement . . . bears the burden of proving
     the validity and meaning of the covenant [and
     that it] has been violated by the acts of the
     defendant.
                         . . . .

     A defendant may avoid imposition of the remedy
     requested if such a remedy would create a
     hardship or injustice that is out of
     proportion to the relief sought, if
     performance by the defendant would be
     impossible, or if the enforcement of the
     decree would be unusually difficult for the
     court. However, on the questions of hardship,
     injustice, or impossibility, the defendant
     bears the burden of proving the elements of
     the defense . . . . [I]t is for the defendant
     to show by way of defense that it is no longer
     able to perform the covenant consistently with
     its duty to the public in general, or that
     performance thereof will be burdensome and
     oppressive or otherwise inequitable.


                                 22
Id. at 699-701, 594 S.E.2d at 904-05 (citations, footnotes, and

internal quotation marks omitted) (emphasis added).     We

concluded by remanding the case to the circuit court with

specific instructions to hear evidence concerning the remedy to

be ordered. Id. at 702, 594 S.E.2d at 905.

        After Perel, we considered a case that, like the present

case, involved a continuing trespass.     In Levisa Coal Co. v.

Consolidation Coal Co., 276 Va. 44, 662 S.E.2d 44 (2008), we

said:

        Under traditional equitable principles, a
        chancellor may enjoin a continuing trespass.
        However, even in a case involving a continuing
        trespass the guiding principle which remains
        constant is that the granting of an injunction
        is an extraordinary remedy and rests on the
        sound judicial discretion to be exercised upon
        consideration of the nature and circumstances of
        a particular case. Thus, in a case of a
        continuing trespass, such as the present case,
        we have stated that if "the loss entailed upon
        [the trespasser] would be excessively out of
        proportion to the injury suffered by [the
        owner], or a serious detriment to the public, a
        court of equity might very properly deny the
        injunction and leave the parties to settle their
        differences in a court of law." *



*
  The present case involves both of the last two questions.
Because of the result in the indemnity action, the Railroad will
be exposed in the future to liability for injuries sustained by
any tenant or tenant's invitee using the crossing without any
protection from the indemnity for which its predecessor
bargained in 1940. Judges are not prescient and the results of
future changes, such as population growth and density, changes
in land use and the need for additional rail capacity and
traffic cannot be foreseen. If, for instance, a tenant should
                                  23
     We have also observed that unless a party is
     entitled to an injunction pursuant to a statute,
     a party must establish the "traditional
     prerequisites, i.e., irreparable harm and lack
     of an adequate remedy at law" before a request
     for injunctive relief will be sustained.

276 Va. at 61, 662 S.E.2d at 53 (citations and some quotation

marks omitted).

In Levisa Coal, as in Perel, we remanded the case to the circuit

court with specific direction to grant the parties the

opportunity to present evidence on the question whether

injunctive relief would be appropriate under the facts and

circumstances of the case.   Id. at 63, 662 S.E.2d at 54.

     Here, the owner's complaint included counts for damages at

law as well as equitable relief.     The case was set for a two-day

jury trial on all issues to begin on March 7, 2013.    After

denying the owner's motion for summary judgment, the court, over

the Railroad's objection, granted a motion by the owner to set

the case for trial on the issue of injunctive relief only, to

begin on February 27, 2013, eight days before the jury trial.

     At that proceeding, the court refused to afford the parties

an opportunity to present evidence of the facts and

circumstances of the case, ruling, before the owner's evidence



decide to hold a political rally on the property, or if the
present residence were succeeded by apartment or condominium
buildings, the Railroad's exposure to liability claims would
increase exponentially and the crossing would become a "serious
detriment to the public."
                                24
was completed, that any further evidence offered by either party

would be immaterial.   The court essentially took the view that

the undisputed fact that the Railroad had closed the crossing

automatically required entry of a permanent injunction.

     In my view, the circuit court erred in disregarding the

traditional equitable principles made specific in Perel and

Levisa Coal.   The parties should have been afforded an

opportunity to present evidence of all the relevant

circumstances that might inform the chancellor's discretion in

determining the appropriate remedy.   I would make the same

disposition we made in those cases, reverse the decree and

remand the case to the circuit court with direction to afford

the parties a full opportunity to present evidence.

     On remand, if any material issues of fact are disputed, the

parties would be entitled to jury trial of those issues pursuant

to Rule 3:22(e).   If the court should decide to leave the

parties to their legal remedies, their constitutional right to

jury trial would, of course, be unimpaired.

     For the foregoing reasons, I respectfully dissent.




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