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Fee Simple or Easement? Bailey v. Town of Saltville
April 20, 2010
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The Virginia Supreme Court was busy last week, issuing eighteen opinions, two of which – Bailey v. Town of Saltville and Schefer v. City County of the City of Falls Church – were highlighted in the post late last year, Case Watch: Upcoming Virginia Supreme Court Opinions.

Bailey looked at whether a 1909 agreement and a deed concerning a railroad right of way conveyed only an easement or a fee simple interest. In 1909, James and Kate White recorded an agreement and a deed conveying a right of way to Norfolk and Western Railway Company. The agreement's stated purpose was to resolve a dispute over the width of Norfolk and Western’s right of way, and said that the Whites were conveying an eighty-foot wide right of way through their farm. The deed, executed the same day as the agreement, said that the Whites were granting and conveying a strip or parcel of land, described by metes and bounds, with a total acreage of 20.59 acres, setting out survey calls with bearings and distances for the centerline of the track. The deed ended with a covenant that the Whites “will warrant generally the land hereby conveyed.”

In 1993, Norfolk and Western abandoned the railroad line. In 1994, Norfolk and Western donated the railroad corridor to the Town of Saltville by way of quitclaim deed. In 2002, Bailey acquired title to a portion of the farm through which the old railroad line passed. In 2004, Saltville began removing the railroad tracks from the corridor. In response, Bailey posted “no trespassing” signs and denied Saltville entry to the corridor, prompting the town to file suit.

The Virginia Supreme Court began with the basic rule of giving the words used in the deed and agreement their natural and ordinary meaning. It also cited the rule that when two documents are executed at the same time and refer to the same topic, the documents are part of one transaction and are construed as if the provisions were from one whole document. To determine the intent of the parties, the Court looked at the deed’s language, including the language that described the conveyance of “all that certain strip or parcel of land” and warranting generally “the land hereby conveyed.” The Court sided with the Town of Saltville, concluding that the Whites had transferred complete ownership -- a fee simple interest, not a mere easement -- to Norfolk & Western.

The lesson to be learned from this case is – Say What You Mean! In any deed, be sure to spell out exactly what kind of interest you intend to convey. If you mean to convey a fee simple interest, then say so. If you mean to convey only an easement, then say so. [Don’t forget the lessons from Details, Details, Details: What it takes to convey an easement in Virginia and Details, Details, Details, continued: When 1 + 1 still equals 1!]

Also remember that if you are executing other documents along with a deed, make sure that all of the documents are consistent in spelling out exactly what the parties mean to do. The confusion in this case stemmed from the parties having executed two different documents, neither of which spelled out fully what the parties intended. Don’t leave the decision of what you intended to the court. It is much more time effective and much less expensive for you to say right in the documents exactly what you mean!

Bailey wasn’t the only easement related case decided on April 15. The Virginia Supreme Court issued two other opinions regarding easements. In Hafner v. Hansen, the Court concluded that there was no easement by prescription for an unrecorded underground sewer line. Although the neighbor continuously used the sewer line, the line was not so open and obvious that the owner should have known about it and objected to its use.

In Snead v. C&S Properties Holding Company Ltd, the owner installed a chain-link fence, trees and shrubs, signage and rip-rap along an easement. The trial court refused to issue an injunction because there was still enough room for a car to pass, allowing the holder of the easement access to his property. The Virginia Supreme Court reversed, saying that an injunction barring encroachment on the full width of the easement was the right outcome.

Stay tuned for the outcome of the second case, Schefer v. City Council of the City of Falls Church, in a post coming soon!