WETLANDS AMERICA TRUST, INC., v. WHITE CLOUD NINE VENTURES, L.P.
Record No. 141577
Supreme Court of Virginia
February 12, 2016
JUSTICE ELIZABETH A. McCLANAHAN
OPINION BY JUSTICE ELIZABETH A. McCLANAHAN
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Burke J. McCahill, Judge
Wetlands America Trust, Inc. (“WAT“) holds a conservation easement on property in Loudoun County owned by White Cloud Nine Ventures, L.P. (“White Cloud“). On appeal, WAT contends the circuit court erred in rejecting claims in its declaratory judgment action that White Cloud‘s construction activities on the property and intended commercial uses for its newly-constructed facility violate the easement. We affirm the judgment of the circuit court.
I. BACKGROUND
WAT is a non-profit organization that holds conservation easements across the country and provides fiduciary support to Ducks Unlimited, a non-profit wetlands and waterfowl conservation organization. In 2001, Caeli Farms, LLC, which owned a farm in Loudoun County consisting of approximately 400 acres, gave WAT a “Deed of Gift of Conservation Easement” (the “Easement“) covering this property. Caeli Farms, LLC subsequently subdivided the farm into two tracts of approximately equal size and sold one of the tracts to White Cloud (the “Caeli property“) in 2008. At that time, White Cloud already owned adjacent property leased to Chrysalis Vineyards, LLC (“Chrysalis“) consisting of approximately 50 acres on which Chrysalis was operating a vineyard and winery (the “Chrysalis property“). The same individual, Jennifer McCloud, was then and has continued to be the general partner of White Cloud and the managing and only member of Chrysalis.
WAT filed the present action in the Loudoun County Circuit Court seeking a declaratory judgment that White Cloud‘s construction activities and intended commercial use of the new facility on the Caeli property violated the Easement‘s restrictive covenants. WAT further requested an order enjoining White Cloud from continuing its construction activities and requiring it to restore the Caeli property to its pre-construction condition. In its answer, White Cloud denied violating the Easement and asserted as affirmative defenses, inter alia, that the Easement was unenforceable because it was impermissibly vague and ambiguous, and that WAT‘s claims were barred by estoppel and laches.
During a five-day bench trial, WAT sought to establish that White Cloud had committed 14 separate violations of the Easement. The evidence at trial included expert testimony from both sides on issues pertaining to a number of the alleged violations. One such issue, as relevant to this appeal, pertained to the impact of White Cloud‘s subject activities on the Caeli property‘s habitat for which the parties offered the testimony of competing experts in the field of biology.
After taking evidence and analyzing the terms of the Easement, the trial court issued a 30-page letter opinion setting forth rulings in White Cloud‘s favor, with narrow exception.1 In a motion for reconsideration, WAT argued, among other things, that the trial court erred in construing the Easement by applying the common law principle that restrictive covenants are to be strictly construed in favor of the free use of land. See Waynesboro Village, LLC v. BMC Props., 255 Va. 75, 80, 496 S.E.2d 64, 67-68 (1998) (reciting principle and cited in trial court‘s letter opinion). The trial court denied WAT‘s motion and entered a final order incorporating the findings and conclusions in its letter opinion.
On appeal, WAT asserts in its assignments of error that the trial court erred by: (1) applying the common law strict construction principle for restrictive covenants to a conservation easement; (2) ruling that the term “farm building” in Section 3.3(A)(iv) of the Easement was ambiguous and that White Cloud‘s disputed building was a permitted farm building under the Easement; (3) ruling that the prohibition under Section 3.3(C)(vi) of the Easement against constructing a building on a “highly erodible area” was ambiguous and that the erodibility was to be tested after the construction site had been graded; (4) ruling that the alteration of the topography for the parking lot was “required” and did not require WAT‘s permission under Section 3.6; (5) ruling that the stated purposes of the Easement set forth in Section 1.1 in regard to retaining the predominant condition of the property and preventing significant impairment of
II. ANALYSIS
A. Standard of Review, Principles of Construction and Burden of Proof
Well-settled principles guide our review of the trial court‘s judgment. “As to purely factual determinations made by the trial court, we will not disturb those findings unless they are plainly wrong or without evidence to support them.” Perel v. Brannan, 267 Va. 691, 698, 594 S.E.2d 899, 903 (2004). In reviewing those findings, we view the evidence “in the light most favorable to the prevailing parties.” Carter v. Carter, 223 Va. 505, 509, 291 S.E.2d 218, 220 (1982). However, like other contracts, we review a trial court‘s construction of a deed of easement de novo. Marble Technologies, Inc. v. Mallon, 290 Va. 27, 33, 773 S.E.2d 155, 158 (2015).2 See Langman v. Alumni Ass‘n of the Univ. of Va., 247 Va. 491, 498, 442 S.E.2d 669, 674 (1994) (“The question whether a writing is ambiguous is not one of fact but of law.“).
Our function in construing a deed is to give effect to the parties’ intention as expressed by them in the words they have used. Camp v. Camp, 220 Va. 595, 597-98, 260 S.E.2d 243, 245 (1979). “‘Where 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.‘” Swords Creek Land P‘ship v. Belcher, 288 Va. 206, 212, 762 S.E.2d 570, 572 (2014) (quoting CNX Gas Co. v. Rasnake, 287 Va. 163, 166-67, 752 S.E.2d 865, 867 (2014)). We normally give the words used
At the same time, “[e]ffect should be given to every part of the instrument, if possible, and no part thereof should be discarded as superfluous or meaningless.” CNX Gas Co., 287 Va. at 168, 752 S.E.2d at 867 (citing Auerbach v. County of Hanover, 252 Va. 410, 414, 478 S.E.2d 100, 102 (1996); Foster v. Foster, 153 Va. 636, 645, 151 S.E. 157, 160 (1930)). This means that “the whole of a deed and all its parts should be considered together” in order to determine the controlling intent. Id. (citing Auerbach, 252 Va. at 414, 478 S.E.2d at 102; see Hinton v. Hinton, 209 Va. 544, 545-46, 165 S.E.2d 386, 387 (1969) (Each part of a deed “must be construed with reference to the whole, so as to make it harmonious and sensible as a whole.” (quoting Willis v. Kalmbach, 109 Va. 475, 482, 64 S.E. 342, 345 (1909)))).
When the deed, so construed, is plain and unambiguous, we are “not at liberty to search for its meaning beyond the instrument itself.” Virginia Elec. & Power Co. v. Northern Va. Reg‘l Park Auth., 270 Va. 309, 316, 618 S.E.2d 323, 326 (2005) (quoting Berry v. Klinger, 225 Va. 201, 208, 300 S.E.2d 792, 796 (1983)). An instrument will be deemed unambiguous if its provisions are “capable of only one reasonable construction.” Clinch Valley Physicians, Inc. v. Garcia, 243 Va. 286, 289, 414 S.E.2d 599, 601 (1992) (citation and internal quotation marks omitted). Conversely, a deed will be deemed ambiguous, and thus require judicial interpretation,
Specifically in regard to restrictive covenants imposing encumbrances on land, under the common law, if such restrictions in a deed or other written instrument suffer from any “[s]ubstantial doubt or ambiguity” they are strictly construed against the party seeking to enforce them. Friedberg v. Riverpoint Bldg. Comm., 218 Va. 659, 665, 239 S.E.2d 106, 110 (1977) (citing Schwarzschild v. Welborne, 186 Va. 1052, 1058, 45 S.E.2d 152, 155 (1947)). As indicated above, however, WAT challenges in the first recited assignment of error the trial court‘s application of this principle to the Easement, which we address in Part II.B. infra.
Still, when a court has resolved the meaning of such disputed restrictive covenants, the restrictions will be enforced “when applicable.” Mid-State Equip. Co. v. Bell, 217 Va. 133, 140, 225 S.E.2d 877, 884 (1976); see Perel, 267 Va. at 699-700, 594 S.E.2d at 904. But the plaintiff, in seeking enforcement of the restrictions, has the burden to prove that they have been “violated by the acts of the defendant.” Id. at 700, 594 S.E.2d at 904 (citing Hening v. Maynard, 227 Va. 113, 117, 313 S.E. 2d 379, 381 (1984); Forbes v. Schaefer, 226 Va. 391, 400, 310 S.E. 2d 457, 463 (1983)). The risk of non-persuasion thus remains with the plaintiff. See Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia § 5-1[c], at 299 (7th ed. 2012) (“This is the burden of convincing the trier of fact that a particular result should be reached. . . . [I]f the party who has this ‘burden of persuasion’ fails to carry it, [this party] will lose the case.“).
B. Applicability of Strict Construction Principle
WAT argues that all of the disputed restrictive covenants contained in the Easement are clear and unambiguous, and that the trial court thus erred in determining that the restrictions are
We disagree with WAT as to each of these arguments, finding no error in the trial court‘s rulings that the disputed restrictions contained in the Easement are (a) ambiguous, thus requiring judicial interpretation, as addressed in Parts II.C. through F. infra., and (b) subject to the common law strict construction principle for restrictive covenants triggered by ambiguity.
Under this common law principle, consistently recognized and applied by this Court for over a century, “[v]alid covenants restricting the free use of land, although widely used, are not favored and must be strictly construed and the burden is on the party seeking to enforce them to demonstrate that they are applicable to the acts of which he complains.” Friedberg, 218 Va. at 665, 239 S.E.2d at 110 (citing Riordan v. Hale, 215 Va. 638, 641, 212 S.E.2d 65, 67 (1975); Traylor v. Halloway, 206 Va. 257, 259, 142 S.E.2d 521, 522-23 (1965)). Accordingly, “[s]ubstantial doubt or ambiguity is to be resolved against the restrictions and in favor of the free use of property.” Id. (citing Schwarzschild, 186 Va. at 1058, 45 S.E.2d at 155); see Stevenson v. Spivey, 132 Va. 115, 119, 110 S.E. 367, 368 (1922) (restrictive covenants “will not be aided or extended by implication“).3
There is no dispute that a conservation easement authorized under the VCEA,4 which encompasses the present Easement, “is not of a character that has been recognized traditionally at common law” as the VCEA expressly states.
We thus agree with WAT that in certain significant respects the VCEA is in derogation of the common law. However, our analysis does not end there, as this does not necessarily mean that the common law strict construction principle applied to restrictive covenants is abrogated by the VCEA. Under settled principles of statutory construction, “‘[s]tatutes in derogation of the common law are [themselves] to be strictly construed and not to be enlarged in their operation by construction beyond their express terms.‘” Isbell v. Commercial Inv. Assocs., Inc., 273 Va. 605, 613, 644 S.E.2d 72, 75 (2007) (quoting Chesapeake & Ohio Ry. Co. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965)). Accordingly, “‘[w]hen an enactment does not encompass the entire subject covered by the common law, it abrogates the common-law rule only to the extent that its terms are directly and irreconcilably opposed to the rule.‘” Id. at 613-14, 644 S.E.2d at 75 (quoting Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302 (1988)).
The VCEA, of course, does not encompass the entire subject of common law easements and restrictive covenants. Furthermore, the common law strict construction principle applied to restrictive covenants is exactly that — a contract construction principle. Nowhere does the VCEA specifically address the principles of contract construction to be applied to conservation easements approved under this statutory scheme, and thus it does not abrogate such principles with direct and irreconcilable opposition.6 Indeed, the VCEA sets forth absolutely no provisions
We thus conclude that the VCEA does not abrogate the common law strict construction principle as the VCEA is not “directly and irreconcilably opposed” to it. Isbell, 273 Va. at 613-14, 644 S.E.2d at 75. Accordingly, as dictated by the governing statutory construction principles, the restrictive covenants in the Easement that we determine to be ambiguous must be strictly construed against restriction and in favor of White Cloud.7
We now turn first to WAT‘s argument that the trial court erred in ruling that the term “farm buildings” in Section 3.3(A)(iv) of the Easement was ambiguous, and that White Cloud‘s newly-constructed building was a permitted farm building under the trial court‘s interpretation of the Easement. Section 3.3(A)(iv) states: “No permanent or temporary building or structure shall be built or maintained on the entirety of the Protected Property other than . . . farm buildings or structures. . . .” Neither the term “farm buildings” nor the term “farm structures” is defined by the Easement. Section 3.3(D), however, refers to the structures listed in Section 3.3(A), including farm buildings, as “agricultural buildings.”
Virginia‘s Uniform Statewide Building Code defines the term “[f]arm building or structure,” in relevant part, as “a building or structure . . . located on property where farming operations take place, and used primarily for any of the following uses or combination thereof: 1. Storage, handling, production, display, sampling or sale of agricultural, horticultural, floricultural or silvicultural products produced in the farm; 2. Sheltering, raising, handling, processing or sale of agricultural animals or agricultural animal products . . . .”
Webster‘s Third New International Dictionary does not define “farm building” or “agricultural building,” but does provide the following related definitions which are instructive. The word “farm” is defined as “any tract of land whether consisting of one or more parcels devoted to agricultural purposes generally under the management of a tenant or the owner.” Webster‘s Third New International Dictionary 824 (1993). “Agricultural” is defined as “of, relating to, or used in agriculture.” Id. at 43. “Agriculture” is then defined as “the science or art of the production of plants and animals useful to man and in varying degrees the preparation of these products for man‘s use and their disposal (as by marketing).” Id. at 44.
With the incorporation of production, preparation and marketing as components of agricultural activities, these dictionary definitions are consistent with the above-stated definition of “farm building” under
D. “Highly Erodible Areas” under Section 3.3(C)(vi)
WAT next argues that the trial court erred by ruling that the prohibition under Section 3.3(C)(vi) of the Easement against constructing a building on “highly erodible areas” was ambiguous and that, under the trial court‘s interpretation of the Easement, the erodibility was to
We must give effect to every provision of the Easement, if possible, “so as to make it harmonious and sensible as a whole.” Hinton, 209 Va. at 545-46, 165 S.E.2d at 387 (citation and internal quotation marks omitted). Under Section 3.6, White Cloud, as the landowner, has the express right to grade, blast and remove soil for the construction of permitted buildings. This right must be sensibly harmonized with the limitation in Section 3.3(C)(vi) that no building may be “constructed” on what are determined to be “highly erodible areas as identified by the U.S. Department of Agriculture” (“USDA“).
It is reasonable to assume that the parties to the Easement, in choosing the Section 3.3(C)(vi) language, were aware of the essential purpose of the USDA mapping of highly erodible croplands. The mapping was performed pursuant to the USDA‘s authority under various provisions of the Food Security Act of 1985,
The parties to the Easement nevertheless incorporated this USDA mapping scheme into the terms of the Easement at Section 3.3(C)(vi) out of what was, no doubt, a desire to protect the Caeli property from significant soil erosion that might be caused by the construction of permitted buildings. At the same time, however, those same parties also authorized the landowner to grade, blast and remove soil for the construction of permitted buildings under Section 3.6. We thus believe it is only reasonable to conclude, as did the trial court in reconciling these provisions, that if the site for constructing a permitted building is not highly erodible after the grading for the site has been done, there is no violation of Section 3.3(C)(vi).
As to the evidence presented on this issue, there was no dispute that USDA mapping identified the Caeli property as containing highly erodible soil. In addition, WAT‘s expert witness provided detailed information regarding the criteria and calculations for determining soil erodibility under the USDA regulations. However, WAT‘s expert had never been to the Caeli property and had no information on the soil erodibility of the construction site for the new building after the site had been graded.8 Nor did any other witness provide this information. In
E. Alteration of Topography for Parking Area under Section 3.6
We continue with our review of Section 3.6 of the Easement in addressing WAT‘s additional argument that the trial court erred in ruling that this provision was not violated by the grading done for White Cloud‘s parking area adjacent to the new building. This interpretation and application of Section 3.6 is sensible and correct. It would be completely incongruous and unreasonable to conclude that White Cloud has the authority under the Easement to grade the site for the new building and construct it as a “farm building” as that term is interpreted above — which includes the right to allow the general public to visit the building to sample and purchase products on site — and yet hold that White Cloud has no right under Section 3.6 to “alter the topography” by grading the site for an adjoining parking area.
WAT also challenges the trial court‘s rejection of its argument that White Cloud was required under Section 3.12 of the Easement to receive WAT‘s prior written approval before doing the grading for the parking area. Section 3.12, which is entitled “Water Resources,” states in relevant part that “[t]he Grantor reserves the right to grade, move earth and otherwise alter the topography of the Protected Property, with the prior written approval of Grantee, which approval shall not unreasonably be withheld for dam construction and the creation of private ponds, lakes, and/or wetland areas. Such activity shall not impair the conservation values or the Purpose of the Easement.” We agree with the trial court that this provision does not apply to grading related to permitted buildings, but rather is limited in very specific terms to the permission required for the construction of dams, ponds, lakes and wetland areas.
We now consider WAT‘s challenge to the trial court‘s interpretation and application of the Easement‘s principal restrictions set forth in Section 1.1 in the context of the Easement‘s expressly stated purpose: “It is the purpose of this Easement to assure that the Protected Property will be retained in perpetuity predominantly in its natural, scenic, and open condition, as evidenced by the [Baseline Document] Report [BDR], for conservation purposes as well as permitted agricultural pursuits, and to prevent any use of the Protected Property which will impair significantly or interfere with the conservation values of the Protected Property, its wildlife habitat, natural resources or associated ecosystem.”
WAT argues that, even if the individual provisions of the Easement addressed above in Parts II.C., D. and E. have not been violated, the trial court erred in ruling that (a) White Cloud, in the construction and use of its new facilities, has retained the Caeli property in predominantly the condition required by Section 1.1, as construed in the context of the Easement as a whole; and (b) White Cloud has not thereby significantly impaired or interfered with the Easement‘s “conservation values” or the property‘s environment, as prohibited in Section 1.1.
First, WAT relies on the BDR to make its argument that White Cloud has not retained the property in the condition required under Section 1.1. The BDR was a report prepared by an ecologist on the status of the Caeli property in 2001. The parties to the Easement retained the ecologist to prepare the report concurrently with the drafting and execution of the Easement.9 The BDR consists of a description of the property, its current and previous uses, and its
WAT contends that Section 1.1 unambiguously requires that the property be retained in perpetuity in the condition identified in the BDR. “So if you come back to that property a hundred years from now,” according to WAT, “it should look almost exactly like it looked in 2001 . . . as evidenced by the [BDR].” Thus, WAT asserts, “it cannot possibly be concluded that White Cloud‘s extensive facilities and activities ‘retain’ the [p]roperty in the condition identified in the BDR.” We disagree.
Section 1.1 indeed makes plain that the BDR is to serve as a baseline for assessing whether the property is being predominately retained for “conservation purposes as well as permitted agricultural pursuits.” While the Easement does not define the term “conservation purposes,” it does, however, set forth a number of significant “permitted agricultural pursuits.” As already addressed above in our analysis of the meaning of “farm building” under Section 3.3(A)(iv), the land owner‘s permitted agricultural pursuits on the property include, among others, the construction of new farm buildings used for not only commercial agricultural activities, but even industrial agricultural activities, which were clearly not activities conducted on the property in 2001. So while there may be inherent tension between the “conservation purposes” and the expressly “permitted agricultural pursuits,” the Easement specifically demands retention of the property “for conservation purposes as well as permitted agricultural pursuits,” and therefore the character of the property is in no way frozen in perpetuity “almost as it looked
Second, WAT argues that White Cloud‘s construction and use of its new facilities significantly impair or interfere with the Easement‘s “conservation values” and/or the property‘s environment, as prohibited under Section 1.1. It is the “total impact of White Cloud‘s activities,” WAT contends, that has resulted in the violation of this restriction. Thus, WAT asserts, the trial court erred in denying this additional claim of an alleged violation of Section 1.1.
In rejecting this claim, the trial court stated in its letter opinion that it could not find “based on the evidence presented . . . that [White Cloud‘s] facilities and their uses are inconsistent with and significantly impair and interfere with the conservation values of the Easement and the wildlife habitat, natural resources, and associated ecosystems on the property” under Section 1.1. Initially, the trial court heard the testimony of Scott Yaich, a director of conservation planning and policy with Ducks Unlimited, who qualified as an expert witness for WAT in the field of wildlife habitat ecology and biology. Yaich testified that, based on his evaluation, White Cloud‘s construction activities on the Caeli property and projected plans would have a significant adverse impact to the property‘s wildlife resources. However, the trial court subsequently heard the testimony of White Cloud‘s expert witnesses, James Edward Irre and Avinash Sareen, who similarly qualified as experts in the field of biology. The trial court summarized these witnesses’ testimony as follows:
White Cloud offered Mr. Irre, a biologist, and he opined that there was no significant impact of the utility crossing, culvert, or road crossing. White Cloud also offered Mr. Sareen, a biologist, who opined that there were marginal effects from the improvements and that only a small percentage of the property was impacted. He noted that the land had already been altered by the agricultural and man-made wetlands and roads and that overall there was a de minimis effect.
G. Preclusion of WAT‘s Claim Regarding a Bridge under Section 3.3(C)(v)
Finally, WAT argues that the trial court erred when it refused to consider WAT‘s purported claim that White Cloud‘s construction of the new bridge on the Caeli property violated Section 3.3(C)(v) of the Easement (which prohibits buildings and other structures from being constructed within a certain distance from a perennial stream or pond or on certain floodplains). The trial court, citing Jenkins v. Bay House Associates, 266 Va. 39, 43, 581 S.E.2d 510, 512 (2003), so ruled because WAT did not allege in its complaint that the bridge violated the Easement.
It is well-settled under Virginia law that “‘[a] litigant‘s pleadings are as essential as his proof, and a court may not award particular relief unless it is substantially in accord with the case asserted in those pleadings. Thus, a court is not permitted to enter a decree or judgment order based on facts not alleged or on a right not pleaded and claimed.‘” Dabney v. Augusta Mut. Ins. Co., 282 Va. 78, 86, 710 S.E.2d 726, 731 (2011) (quoting Jenkins, 266 Va. at 43, 581 S.E.2d at 512 (internal citations omitted)). The rationale for this rule is clear: “‘[e]very litigant is entitled
Here, WAT admittedly failed to include a claim in its complaint that White Cloud‘s construction of the new bridge violated Section 3.3(C)(v) of the Easement. WAT contends that the trial court nevertheless erred by refusing to consider this purported claim because WAT presented evidence at trial pertaining to this matter, and White Cloud allegedly failed to argue that there was a variance between WAT‘s pleadings and this evidence. Countering this argument, White Cloud contends that it established below that it was surprised at trial by this evidence and, accordingly, it would have been subject to unfair prejudice had the trial court considered the purported claim. See Manchester Oaks Homeowners Ass‘n v. Batt, 284 Va. 409, 426, 732 S.E.2d 690, 701 (2012) (explaining that defendant may not be prejudiced by inability to prepare to defend against new claim raised at trial).
Regardless, however, of the merits of White Cloud‘s challenge to the subject evidence at trial, we affirm the trial court in rejecting WAT‘s purported claim for the threshold reason that WAT does not assert on appeal that the trial court erred in denying to it any request to amend its complaint or otherwise conform its pleadings to the evidence that WAT offered in support of such claim. See
For the foregoing reasons, we will affirm the judgment of the trial court.
Affirmed.
JUSTICE ROUSH, with whom SENIOR JUSTICE LACY joins, dissenting.
In its sixth assignment of error, appellant Wetlands America Trust, Inc. (“WAT“) argues that “[t]he trial court erred when it applied the common law principles of restrictive covenants to a conservation easement.” I agree. Therefore, I would reverse and remand this case with directions to reconsider after applying the proper standard for interpreting ambiguities in conservation easements.
As the majority notes, the trial court correctly determined that certain terms in the easement agreement are ambiguous. Those ambiguities required the trial court to employ rules of construction to resolve their meanings. The trial court stated that “under Virginia case law restrictive covenants are not favored” when construing the provisions deemed ambiguous. Quoting from Waynesboro Village, L.L.C. v. BMC Properties, 255 Va. 75, 80, 496 S.E.2d 64, 67-68 (1998), and Friedberg v. Riverpoint Building Committee, 218 Va. 659, 665, 239 S.E.2d 106, 110 (1977), the trial court continued:
Valid covenants restricting the free use of land, although widely used, are not favored and must be strictly construed and the burden is on the party seeking to enforce them to demonstrate that they are applicable to the acts of which he complains. Substantial doubt or ambiguity is to be resolved against the restrictions and in favor of the free use of property.
Relying on this doctrine, the trial court construed all ambiguities it found in the conservation easement against WAT and in favor of White Cloud.
The common law was abrogated with regard to negative easements in gross for conservation purposes well before the enactment of the VCEA in 1988. In United States v. Blackman, 270 Va. 68, 613 S.E.2d 442 (2005), we considered the validity of a negative easement in gross for the purpose of conservation and historic preservation created in a 1973 conveyance. We reviewed the history of negative easements in gross and noted that the common law restrictions on easements in gross were abrogated “long ago.” Id. at 78, 613 S.E.2d at 446. We further observed that the significance of the 1962 amendment to
In Blackman, we specifically rejected the argument that a negative easement in gross for conservation purposes was not valid before the enactment of the VCEA, concluding that “it is clear that the VCEA did not create a new right to burden land by a negative easement in gross for the purpose of land conservation and historic preservation.” Id. at 81-82, 613 S.E.2d at 448. Accordingly, while the VCEA comprehensively addressed the conservation easements of the
Contrary to the majority‘s conclusion, the common law principle of strict construction in favor of free use of land no longer applies to conservation easements. The strict construction principle was applied under the common law because easements in gross, including negative easements in gross, were disfavored as a matter of public policy. Today, and for at least the last four decades, Virginia public policy strongly favors the conservation of land and open spaces. Since 1971, the Constitution of Virginia has provided in relevant part:
[I]t shall be the Commonwealth‘s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.
. . . .
In the furtherance of such policy, the General Assembly may undertake the conservation, development, or utilization of lands or natural resources of the Commonwealth, . . . and the protection of its atmosphere, lands, and waters from pollution, impairment, or destruction, by . . . leases or other contracts with . . . private persons or corporations.
Applying a common law principle of strict construction to conservation easements which is based on a policy disfavoring easements in gross cannot be reconciled with our reasoning in Blackman that both the Constitution of Virginia and Virginia‘s various statutes promoting conservation and historic preservation “evince a strong public policy in favor of land conservation and preservation of historic sites and buildings.” Id. at 79, 613 S.E.2d at 447. The oft-stated policy of the Commonwealth in favor of conservation easements such as the type at issue here could not be a clearer rejection of the common law strict construction principle.
The majority bases its holding that the rules of strict construction apply to conservation easements on the provision in
Where language in a deed is ambiguous, the language must be construed against the grantor and in favor of the grantee. We have called this rule “one of the most just and sound principles of the law because the grantor selects his own language.” A grantor must be considered to have intended to convey all that the language he has employed is capable of passing to his grantee.
Other rules of construction also apply when language in a deed is found to be ambiguous. The whole of a deed and all its parts should be considered together.
Effect should be given to every part of the instrument, if possible, and no part thereof should be discarded as superfluous or meaningless. Where the meaning of the language is not clear, or the deed is not artfully drawn, the court should interpret its terms to harmonize them, if possible, so as to give effect to the intent of the parties.
Id. at 167-68, 752 S.E.2d at 867 (citations omitted, emphasis added). Nothing in these rules for interpreting deeds provides for a rule of strict construction of the type advanced by the majority.
Section 1.1 of the conservation easement at issue in this case expresses the intent of the parties as follows:
It is the purpose of this Easement to assure that the Protected Property will be retained in perpetuity predominantly in its natural, scenic, and open condition, as evidenced by the [Baseline Documentation Report], for conservation purposes as well as permitted agricultural pursuits, and to prevent any use of the Protected Property which will impair significantly or interfere with the conservation values of the Protected Property, its wildlife habitat, natural resources or associated ecosystem. . . .
See Deed of Gift of Conservation Easement at 5 (emphasis in original).
Accordingly, ambiguous provisions of conservation easements should be construed consistent with the foregoing rules of contract construction as they apply to deeds. Any ambiguities in a conservation easement, including the easement at issue in this case, should be construed to give effect to the intention of the parties, to give effect to the circumstances surrounding the creation of the easement, to carry out the policy in favor of the conservation of land, and to resolve ambiguities in favor of the grantee.3
ELIZABETH A. McCLANAHAN
JUSTICE OF THE SUPREME COURT OF VIRGINIA
Notes
(1) A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created.
(continued)(2) Unless the purpose for which the servitude is created violates public policy, and unless contrary to the intent of the parties, a servitude should be interpreted to avoid violating public policy. Among reasonable interpretations, that which is more consonant with public policy should be preferred.
Restatement (Third) of Property: Servitudes § 4.1 (2000).a nonpossessory interest of a holder in real property, whether easement appurtenant or in gross, acquired through gift, purchase, devise, or bequest imposing limitations or affirmative obligations, the purposes of which include retaining or protecting natural or open-space values of real property, assuring its availability for agricultural, forestal, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural or archaeological aspects of real property.
Easements, whether affirmative or negative, are classified as either “appurtenant” or “in gross.” An easement appurtenant, also known as a pure easement, has both a dominant and a servient tract and is capable of being transferred or inherited. It frequently is said that an easement appurtenant “runs with the land,” which is to say that the benefit conveyed by or the duty owed under the easement passes with the ownership of the land to which it is appurtenant. . . .
In contrast, an easement in gross, sometimes called a personal easement, is an easement which is not appurtenant to any estate in land, but in which the servitude is imposed upon land with the benefit thereof running to an individual.
We note that the above-stated interpretive principle relied upon by the dissent usually arises, as it did in CNX Gas Co., where there is a dispute, not over the meaning of restrictions placed on the use of certain land, but rather over “the nature and extent of the estate the grantor intended to convey.” Id. at 168, 752 S.E.2d at 867. Thus, for example, “where there is doubt whether one or two parcels of land were intended to be conveyed, the deed will be construed to pass title to both.” Id. at 168, 752 S.E.2d at 868 (citations omitted). The specific question in CNX Gas Co. was whether “the deed convey[ed] to the grantee in fee simple all of the mineral interests in the land embraced within the deed‘s metes and bounds description that the grantors were capable of conveying at the time, excluding only the coal, which they no longer owned,” and this Court held in the affirmative upon construing the deed in favor of the grantee. Id.