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Present: Carrico, C.J., Compton, Stephenson, * Lacy, Keenan, and Koontz, JJ., and Poff, Senior Justice C. LEONARD WILLIS, TRUSTEE, ETC., ET AL. v. Record No. 962217

OPINION BY JUSTICE A. CHRISTIAN COMPTON September 12, 1997

ROBERT L. MAGETTE, TRUSTEE, ET AL. FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY Westbrook J. Parker, Judge In this appeal from a final decree in a chancery suit, the questions presented are whether the trial court properly determined that a prescriptive easement had been established by the evidence; that the easement had been used during the prescriptive period for agricultural, logging, recreational, and residential purposes; and that the width of the easement was 30 feet. At trial, abandonment of the easement was an issue. However, at the petition stage of this appeal, we affirmed the trial court's ruling that the easement had not been abandoned by refusing the assignment of error relating to that issue. The subject of this dispute is a 559-foot lane in Isle of Wight County that runs generally north from State Route 665 across property of appellants C. Leonard Willis, Trustee of the C. Leonard Willis, Inc. Pension Plan, and Hampton Promotions, Inc., to land of appellees Robert L. Magette, Trustee, and Rea Parker, Jr. Justice Stephenson participated in the hearing and decision of this case prior to the effective date of his retirement on July 1, 1997.
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Magette and Parker filed the present suit in 1995 against Willis and Hampton Promotions asking the trial court to declare that a prescriptive easement over defendants' property exists for ingress and egress to their land, and "that said easement is of reasonable width and configuration to allow the passage of vehicles and farm implements used to access and cultivate [their land], but not less than 15'." The plaintiffs wish to develop

their land for residential purposes. Following an April 1996 ore tenus hearing at which testimonial and documentary evidence was presented, the chancellor ruled in favor of the plaintiffs, owners of the alleged dominant estate. In a letter opinion, the court stated there was "no question that the evidence establishes a prescriptive easement in favor of the plaintiffs." The chancellor found that the "lane has been

used for many purposes since the 1920's including agricultural, logging, recreational and residential uses." Observing that the "only issue in this case is the width of the easement," the court decided that the plaintiffs "have an easement across the property of the defendants 30 feet in width (15 feet on each side of the centerline of the lane) for the purposes set forth herein." We

awarded the defendants, owners of the alleged servient estate, this appeal, limited to consideration of the foregoing issues. The principles applicable to this case are settled. To

establish a private right of way by prescription over land of

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another, the claimant must prove, by clear and convincing evidence, that use of the way was adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owners of the land over which it passes, and that the use has continued for at least 20 years. Ward v. Harper, 234 Va. 68, 70, 360 S.E.2d 179, 181 (1987). If

the use of a way across property of another for the prescriptive period has been open, visible, continuous, and unmolested, the use will be presumed to be under a claim of right; this places upon the owner of the servient estate the burden to rebut this presumption by showing that the use was permissive, and not under a claim of right. Id. at 70-71, 360 S.E.2d at 181. A

The standard of review in this case likewise is settled. finding of the chancellor on conflicting evidence, heard ore tenus, carries the same weight as a jury's verdict and will not be disturbed on appeal unless it is plainly wrong or without evidence to support it.

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