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Mount Aldie, LLC v. Land Trust of Virginia, Inc.

Supreme Court of Virginia

March 2, 2017


         FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Thomas D. Horne, Judge Designate

          PRESENT: Lemons, C.J., McClanahan, Powell, Kelsey, and McCullough, JJ., and Russell and Millette, S.JJ.



         The 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 proceedings.


         In 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 Spring Trail."

         LTV 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.[1] 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."

         Moving 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."

         MA 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.

         MA 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 liability.[2]

         The 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 accordingly.[3]


         Under 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).

         MA 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 ...

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