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Marble Technologies, Inc. v. Mallon

Supreme Court of Virginia

June 4, 2015

MARBLE TECHNOLOGIES, INC., ET AL.
v.
STEPHEN M. MALLON, ET AL

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON. Louis R. Lerner, Judge.

James J. Reid (David, Kamp & Frank, on briefs), for appellants.

Michael B. Ware (Adrienne M. Sakyi; Schempf & Ware, on brief), for appellees Stephen M. Mallon, Helen G. Mallon, Arne Hasselquist, Lauren Hasselquist, and Grandview Islanders, LLC.

No brief(s) filed by other appellees.

OPINION

Page 156

PRESENT: All the Justices

S. BERNARD GOODWYN, JUSTICE

In this appeal, we consider whether an express easement created by a 1936 deed was stationary or moved with the changing mean high water line.

Background

In 1936, the Grand View Development Corporation dissolved and distributed most of a large tract of real estate in what is now the White Marsh Beach area of Hampton, Virginia, to its shareholders. The deed distributing the land stated

The parties to this deed take the above mentioned and described property subject to an easement on a twenty foot road as designated on the map recorded with this deed, which easement is to run with the land and from the parties hereto to their assigns and heirs but it is expressly stated that the said twenty foot road shall not become a public road, but merely an easement for the parties, their heirs or assigns to the deed.

The referenced map includes two parallel lines labeled " Twenty Foot Road" (the easement) crossing the lots that fronted the Chesapeake Bay. The map depicts " S 20-00 W" as the southern starting point of the easement. Following the easement from south to north, a place where the easement makes a slight bend is labelled " 980.0' S29.55W." Thereafter, between the parallel lines depicting the road is written " Along Present Mean High Water." [*] A " Stake" is depicted at the northern terminus of the easement.

Due to changes in the sand and water levels since 1936, the easement, as located on the map, is now under the Chesapeake Bay. Because of a dispute over whether the easement still exists, Stephen M. Mallon, Helen G. Mallon, Arne Hasselquist, Lauren Hasselquist and Grandview Islanders, LLC (collectively, " Mallon" ), landowners of some of the properties conveyed by the 1936 deed, sought a declaratory judgment in the Circuit Court of the City of Hampton. They claim that the location of the express easement moved with the mean high water line as the beach eroded.

Respondents Marble Technologies, Inc. and Sebastian Plucinski (collectively, " Marble" ) filed an answer. They assert that the easement has not moved and the land where the easement was located is now on the bottom of the ...


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