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Wetlands America Trust, Inc. v. White Cloud Nine Ventures, L.P.

Supreme Court of Virginia

February 12, 2016


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Andrew G. Mauck (Melissa R. Tannery; Mauck & Brooke, on briefs), for appellant.

E. Andrew Burcher (Michael J. Kalish; Walsh, Colucci, Lubeley & Walsh, on brief), for appellee.

Amicus Curiae: Commonwealth of Virginia (Mark R. Herring, Attorney General; Jeffrey M. Bourne, Deputy Attorney General; Richard A. Mahevich, Senior Assistant Attorney General, on brief), in support of appellant.

Amici Curiae: The Nature Conservancy, Piedmont Environmental Council, Land Trust of Virginia, Land Trust Alliance, National Trust for Historic Preservation in the United States, and Civil War Preservation Trust d/b/a Civil War Trust (John L. Walker, III; Joseph R. Pope; Williams Mullen, on brief), in support of appellant.

Present: Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey, and Roush, JJ., and Lacy, S.J. OPINION BY JUSTICE ELIZABETH A. McCLANAHAN. JUSTICE ROUSH, with whom SENIOR JUSTICE LACY joins, dissenting.


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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.


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.

White Cloud purchased the Caeli property with the intention of leasing it to Chrysalis to use for expanding the Chrysalis vineyard, grazing milk cows to be milked on the Chrysalis property, and raising wheat. White Cloud further planned to construct a building on the Caeli property in which Chrysalis would operate a creamery and bakery, using the milk and wheat derived from the Caeli property. The building would also be used to store barrels of aging wine made from grapes grown on both the Caeli and Chrysalis properties. In addition, the building would include a tasting room and would be open to the general public for the sampling and sale of the Chrysalis wine and the Chrysalis cheese and bakery products produced on site. Acting on these plans, White Cloud commenced construction of the building on the Caeli property, along with an adjoining parking lot, a new road leading to the parking lot, and a new bridge.

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

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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. Another such issue involved the erodibility of the soil at the construction site for the new building and parking area for which the parties offered the testimony of competing experts in the field of soil science.

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 the Easement's conservation values were ambiguous and misapplying these stated purposes; and (6) refusing to consider WAT's claim that White Cloud's construction of the new bridge violated the Easement because WAT did not allege the claim in its complaint.


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, 10 Va. Law Rep. 1248 (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,

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288 Va. 206, 212, 762 S.E.2d 570, 572 (2014) (quoting CNX Gas Co. LLC v. Rasnake, 287 Va. 163, 166-67, 752 S.E.2d 865, 867 (2014)). We normally give the words used by the parties " 'their usual, ordinary, and popular meaning. No word or clause in the [deed] will be treated as meaningless if a reasonable meaning can be given to it, and there is a presumption that the parties have not used words needlessly.'" Squire v. Virginia Housing Dev. Auth., 287 Va. 507, 516, 758 S.E.2d 55, 60 (2014) (quoting Uniwest Constr., Inc. v. Amtech Elevator Servs., 280 Va. 428, 440, 699 S.E.2d 223, 229 (2010)). See Minner v. Lynchburg, 204 Va. 180, 189, 129 S.E.2d 673, 679 (1963) (" Every word [in a deed], if possible, is to have effect." (citation and internal quotation marks omitted)).

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, 8 Va. Law Rep. 2202 (1992) (citation and internal quotation marks omitted). Conversely, a deed will be deemed ambiguous, and thus require judicial interpretation, if its " 'language admits of being understood in more than one way or refers to two or more things at the same time.'" Amos v. Coffey, 228 Va. 88, 92, 320 S.E.2d 335, 337 (1984) (quoting Renner Plumbing v. Renner, 225 Va. 508, 515, 303 S.E.2d 894, 898 (1983)).

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 ...

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