THE CIRCUIT COURT OF LOUDOUN COUNTY Thomas D. Horne, Judge
PRESENT: Lemons, C.J., McClanahan, Powell, Kelsey, and
McCullough, JJ., and Russell and Millette, S.JJ.
ELIZABETH A. McCLANAHAN JUSTICE
circuit court awarded partial summary judgment to Land Trust
of Virginia, Inc. ("LTV") on the issue of liability
against Mount Aldie, LLC ("MA") upon finding that
MA breached a provision of a conservation easement held by
LTV. On appeal, MA argues the court erred in its construction
of the easement and related findings. We agree, reverse the
judgment of the circuit court, and remand for further
2008, MA's predecessor in title conveyed the conservation
easement at issue by "Deed of Gift of Easement"
(the "Easement") to LTV covering a 60-acre tract of
forested land adjacent to Aldie, Virginia and bounded in part
by the Little River (the "property"). The Easement
designates a 100-foot wide strip of the property running
along the edge of the Little River, "as measured from
the top [its] bank, " as a "riparian buffer"
(the "buffer"). After acquiring the property in
2009 and thereon conducting certain commercial forestry
operations, MA performed tree removal and grading work in
2013 within the buffer for a distance of approximately 1, 100
feet along what has long been known as the "Indian
filed the present action in the Loudoun County Circuit Court
seeking an injunction to require MA to return the property to
the condition that it was in prior to the work MA performed
within the buffer on grounds that MA breached the Easement.
Alternatively, LTV sought money damages in an amount required
to so restore the property. LTV's central claim was that MA
violated the Easement by failing to give notice to and
receive permission from LTV before proceeding within the
buffer to destroy "the historic primitive footpath"
constituting the Indian Spring Trail "in order to
construct some sort of road in its place."
for partial summary judgment on the issue of liability, LTV
asserted that the undisputed material facts showed that MA
had violated among other provisions of the Easement that
portion of Article II, Section 5(i) which provides, in
addressing the grantor/landowner's reservation of
non-commercial forest management rights: "No more than
one new opening or clearing, and no new opening or clearings
greater than 1, 000 square feet, in the forest are permitted
for noncommercial purposes, unless approved in advance and in
writing by [LTV]." LTV argued that MA's breach of
this provision was established based on MA's admissions
that it (i) gave no notice to nor received any permission
from LTV prior to performing the disputed buffer work and
(ii) disturbed more than 1, 000 square feet of earth within
the buffer along the Indian Spring Trail in completing this
work. The "footpath" comprising the Indian Spring
Trail, LTV asserted, "has been obliterated and it has
been replaced by something. Whether it is a trail or a road,
it doesn't make any difference because the area cleared
was more than 1, 000 square feet."
argued in opposing LTV's motion that merely disturbing
more than 1, 000 square feet of earth does not constitute the
creation of a "new opening or clearing" in the
context of forest management under the terms of Article II,
Section 5(i) of the Easement, and thus this provision is not
controlling in this case. Rather, the controlling provision,
MA contended, is Article II, Section 3, which establishes the
buffer in subsection (i) and then sets forth in subsection
(ii), in relevant part, the following limitation and
exceptions governing the landowner's activities within
the buffer: "Within the buffer strip there shall be no .
. . earth disturbing activity conducted, except as may be
reasonably necessary for . . . (c) removal of individual
trees presenting a danger to persons or property and removal
of diseased, dead or invasive trees, shrubs or plants . . .
or (d) creation and maintenance of foot or horse trails with
unimproved surfaces." This provision contains no
requirement that the landowner give notice to and/or receive
permission from LTV regarding the excepted activities.
represented to the trial court that it intended to present
evidence, consistent with Article II, Section 3(ii), which
would show that its earth disturbing activity within the
buffer was reasonably necessary for the removal of dead and
diseased trees, many of which had fallen across the Indian
Spring Trail and blocked its passage; and that MA had removed
only dead and diseased trees within the buffer. This evidence
would conflict with evidence LTV intended to present
indicating that MA had been engaged in removing living trees
from the buffer. MA also represented that its evidence would
show that after completing its work along the Indian Spring
Trail, the area was amenable for use as a foot or horse
trail, but not for vehicular traffic as LTV contended. MA
further represented that it intended to present evidence to
show that the disturbed area was already a "trail"
generally five to seven feet wide along its course before MA
cleared it of fallen trees, and not just a
"footpath" as LTV contended-which are terms not
defined by the Easement. On this point, MA represented that
it would present evidence that the Indian Spring Trail
remains similar to other trails on the property, as well as
other trails located in the region. Thus, MA argued, because
the case presented genuine issues of disputed material facts
under what it contended was the governing provision of the
Easement, Article II, Section 3(ii), LTV was not entitled to
partial summary judgment on the issue of
trial court, agreeing with LTV that Article II, Section 5(i)
of the Easement was controlling, instead of Section 3(ii),
granted LTV's motion for partial summary judgment on the
issue of liability. Relying on MA's admission that it had
disturbed more than 1000 square feet of earth in the buffer,
the court ruled that MA had "fail[ed] to give notice and
obtain approval, as required" under Section 5(i) for
this activity and thus breached this provision. During a
hearing on MA's motion for reconsideration, MA argued
that the operative term "new opening or clearing"
in Section 5(i) was plainly in reference to the creation of a
new opening or clearing in the forest by the removal of
standing timber, as would be accomplished by clearcutting the
timber. The term would thus not apply, MA asserted, to the
act of clearing the Indian Spring Trail of what it contended
were only dead and diseased trees. In denying MA's
motion, the court clarified that its ruling in favor of LTV
was based on its interpretation of the term
"clearing" in Section 5(i) to include "any
earth disturbing activity that might take place."
Afterwards, the court awarded damages to LTV for MA's
purported breach of Section 5(i), along with an award of
costs to LTV that included expert witness fees and LTV staff
costs, and entered final judgment for LTV
Rule 3:20, summary judgment may be granted upon all or a
portion of a claim, including "the issue of liability
alone." However, summary judgment "shall not be
entered" unless no "material fact is genuinely in
dispute" on a controlling issue or issues and the moving
party is entitled to such judgment as a matter of law.
Id. See Kohn v. Marquis, 288 Va. 142, 147, 762
S.E.2d 755, 757 (2014); Campbell Cnty. v. Royal, 283
Va. 4, 15, 720 S.E.2d 90, 95 (2012); Fultz v. Delhaize
Am., Inc., 278 Va. 84, 88, 677 S.E.2d 272, 274 (2009).
Thus, in an appeal of a decision awarding summary judgment,
the trial court's determination that no genuinely
disputed material facts exist and its application of law to
the facts present issues of law subject to de novo review.
Kohn, 288 Va. at 147, 762 S.E.2d at 757. Further,
"like other contracts, we review a trial court's
construction of a deed of easement de novo."
Wetlands America Trust, Inc. v. White Cloud Nine
Ventures, 291 Va. 153, 160, 782 S.E.2d 131, 135 (2016).
argues on appeal that the trial court erred in its
construction of the Easement, which in turn led the court to
erroneously find no genuinely disputed material facts existed
that would preclude awarding ...