Supreme Court of Virginia, Record No. 160305, March 2, 2017: Court picks which of 2 easement sections controls owner’s actions.
This decision resulted from a request for summary judgment as to whether a landowner had violated a conservation easement on its land. Each side in the dispute asserted that a different section of the easement controlled certain activities of the owner. The court had to decide which of the two sections of the easement was controlling. If the section which the easement holder pointed to controlled, then the undisputed facts led to the conclusion that there was a violation. If the section pointed to by the owner controlled, then additional fact finding would be needed to determine if there was a violation.
Land Trust of Virginia, Inc. (“LTV”) holds a conservation easement (“Easement”) on land owned by Mount Aldie, LLC (“MA”). The Easement covers a 60-acre tract of forested land bounded in part by the Little River. The Easement designates a 100-foot wide strip of the property running along the edge of the river as a “riparian buffer” (the “buffer”). MA performed tree removal and grading work within the buffer for a distance of approximately 1,100 feet along what is known as the “Indian Spring Trail.”
Among the reserved rights of the owner, Article II, Section 5(i) of the Easement says, “No more than one new opening or clearing, and no new opening or clearings greater than 1,000 square feet, in the forest are permitted for noncommercial purposes, unless approved in advance and in writing by [LTV].” LTV argued that this is the controlling provision regarding MA’s tree removal and grading and that, because MA had not sought or received LTV’s permission for the work, MA had violated the Easement.
Article II, Section 3, subsection (i) establishes the buffer and a part of subsection (ii) states the following limitation and exceptions governing the landowner’s activities within the buffer: “Within the buffer strip there shall be no . . . earth disturbing activity conducted, except as may be reasonably necessary for . . . (c) removal of individual trees presenting a danger to persons or property and removal of diseased, dead or invasive trees, shrubs or plants . . . or (d) creation and maintenance of foot or horse trails with unimproved surfaces.” This provision contains no requirement that the owner give notice to and/or receive permission from LTV regarding the excepted activities. MA argued that this should be the controlling provision in this case and therefore that no violation had occurred.
The court reviewed the rules established by precedent for interpreting a conservation easement in Virginia:
- “[o]ur function in construing a deed is to give effect to the parties’ intention as expressed by them in the words they have used”;
- ”`[w]here the language of [the] deed clearly and unambiguously expresses the intention of the parties, no rules of construction should be used to defeat that intention.’”
- “`the whole of a deed and all its parts should be considered together’ in order to determine the controlling intent.”
- “When the deed, so construed, is plain and unambiguous, we are `not at liberty to search for its meaning beyond the instrument itself.’”
- “[a]n instrument will be deemed unambiguous if its provisions are `capable of only one reasonable construction.’”
- “give the words used by the parties `their usual, ordinary, and popular meaning’” in the context in which they are being used.
- always presume that the parties “were trying to accomplish something rational. Common sense is as much a part of contract interpretation as is the dictionary or the arsenal of canons.”
The court then parsed the words of the two relevant sections. The court looked at the meaning of “clearing.” In Section 5(i), the landowner is explicitly limited within “the forest” to creating “[n]o more than one new opening or clearing, and no new opening or clearings greater than 1,000 square feet . . . unless approved in advance and in writing by Grantee.” Citing the Webster’s Third New International Dictionary (1993), the court said that as applicable in the context of Section 5(i), “clearing” is defined as “a tract of land cleared of wood or brush.” In turn, “wood” is defined as “a tract of land on which stand growing trees,” and “brush” is defined as “land covered with scrub vegetation.” An “opening” is defined as “an area without trees.”
Based on these definitions the court agreed with MA that “the term ‘new opening or clearing’ as used in Section 5(i) means a newly created area that has been cleared of standing timber and/or brush, and not merely the act of disturbing the earth or doing so while in the act of selective cutting and/or removing dead and diseased trees from an existing clearing or opening, i.e., an existing path, trail or road (or indeed any other existing clearing or opening in the forest).” Accordingly, the court said that just because MA’s actions “disturbed” more than 1,000 square feet of earth within the buffer without prior notice to or approval from LTV, that did not necessarily mean that MA breached Section 5(i).
Turning to Section 3(ii), the court said it was contrary to the plain language of the provisions at issue to think that Section 3(ii) is subject to Section 5(i).The court understood Section 3 as having “a completely different explicit objective within the buffer, which is ‘[t]o protect [the] water quality’ of the Little River.” This Section, the court said, treats the buffer differently from the rest of the tract and uses terms ‘that uniquely apply to it [the buffer]” and not the rest of the property. The absence of any notice or approval requirement in Section 3(ii) was intentional, in the court’s opinion, given that the Easement explicitly included such requirement in several other Easement sections (Article II, Sections 1, 2(ii), 5(i) and 5(ii), and Article V, 6(i) and 6(ii)).
Additionally, the court said it would make no sense, in the context of the landowner’s rights under Section 3(ii) to create and maintain horse trails within the buffer, to say that “earth disturbing activity” within the buffer under Section 3(ii) should be limited to 1,000 square feet. “Such an interpretation would mean that the landowner is allowed to construct a horse trail without prior approval so long as the trail is no longer than 167 feet where, for example, the average width of the trail is six feet.”
The court conclude that it “strains credulity to believe that the parties to the Easement intended for the provisions of Section 5(i) to control the landowner’s permitted activities within the buffer under Section 3(ii).” Saying that the issue is therefore not whether MA had a right to perform work within the buffer but rather whether the nature of that work was in compliance with the Easement, the court said that genuine issues of disputed material fact remained to be resolved and therefore summary judgment was not appropriate. The case was remanded for further proceedings.
Decision available at http://www.courts.state.va.us/opinions/opnscvwp/1160305.pdf.