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United States v. Smith & Dew, Inc.

United States District Court, W.D. Virginia, Roanoke Division

June 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SMITH & DEW, INC., et al., Defendants.

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge.

         The defendants William L. Smith, Wesley A. Dew, and Smith & Dew, Inc. (collectively Smith & Dew or defendants) own real property in fee simple in Covington, Virginia. The chain of title for defendants' properties includes a 1969 deed by which A. A. McAllister and Sons' Company, Inc. granted an easement to the United States to build the road known as Forest Service Road (FSR) 339 (the Easement Deed or the Deed). The road, which is unpaved and approximately 1.4 miles long, allows access from Covington to U.S. Forest Service property. The road ends at a cul-de-sac at the edge of the George Washington National Forest where there are hiking trails and other land available to the public for recreational uses. Since the time the road was built, it has been open to the public, allowing pedestrian traffic year-round and allowing vehicular traffic seasonally. At certain times of the year, the Forest Service has placed a gate at the road's entrance, secured by a padlock, in order to prohibit vehicular traffic. Primarily, the closures occur to protect the road from damage caused by vehicles, particularly during the winter months.

         After defendants purchased essentially all the property on either side of FSR 339, they grew frustrated with some members of the public who used the right-of-way to engage in unwanted or illegal behavior, including dumping, shooting guns, and vandalizing defendants' property. In an attempt to prevent this type of activity, Smith & Dew erected a locked gate in October 2013 to block vehicular access to the road, although they gave a key to the Forest Service. After defendants refused requests by the Forest Service to unlock and remove their gate, the United States filed this lawsuit.

         The complaint contains three counts. Count I is an action to quiet title. Count II, titled “ejectment, ” seeks an order requiring Smith & Dew to remove the gate. Count III seeks injunctive relief in the form of a declaration stating that defendants have no right to block access, either by the Forest Service or the public, to FSR 339; damages attributable to defendants' unauthorized use of FSR 339; and a permanent injunction enjoining defendants from placing or allowing any gate over FSR 339 that restricts the Forest Service's or public's right of access to the National Forest.

         After discovery, the United States filed a motion for summary judgment, which was fully briefed and argued before the court on March 14, 2018.[1] For the reasons set forth herein, the court will grant the motion for summary judgment and enter judgment in favor of the United States.

         I. BACKGROUND

         The court construes the evidence, and reasonable inferences therefrom, in the light most favorable to defendants, the non-moving parties. Laing v. Fed. Express Corp., 703 F.3d 713, 714 (4th Cir. 2013).

         A. The Easement Deed

         As noted, the easement at issue was conveyed to the United States in 1969. The Easement Deed contains several provisions potentially relevant here, which are discussed in context below. See infra Section II.C.

         Defendants' primary argument is that the easement has been extinguished because its intended purpose never came into existence.[2] That is, they argue that documents produced in discovery suggest that FSR 339 was originally intended to be part of a larger project, known as the “Skyline Road Project.” According to the limited documents still available from that time period, it appears that the Forest Service either considered a plan or actually intended for FSR 339 to be extended into the National Forest and join with a network of roads (including two “loop roads”) on the National Forest property. Dew also has offered a declaration in which he states that, based on his personal knowledge, he was aware of the “Skyline Road project” during the 1967-1971 time-frame and that it was “slated to involve providing vehicular access to a remote and roadless area of the National Forest.” (Dew Decl. ¶ 4, Dkt. No. 46-3.) He further avers that the project “never happened, ” “came to an abrupt halt” in the early 1970s, and “was abandoned for reasons [he does] not know.” (Id. ¶ 8.)

         B. Historical Use of FSR 339

         Although FSR 339 never was connected to any larger project, it has-since its construction shortly after the easement was granted-provided access to the boundary of the National Forest. It is undisputed that the road had been used not only by the Forest Service, but also by the public, for more than forty years until Smith & Dew erected their gate in 2013. Indeed, even Smith conceded that he used the road to access the National Forest before he ever owned the contiguous property. (Smith Dep. at 28, Dkt. No. 20-7.) According to Smith's testimony, the Forest Service gate was not open when the road was first built. At some point, it was kept open for “two weeks of deer [hunting] season.” It was later extended to include the primary big game season, essentially October 1 through January. (Smith Dep. 58; see also Sheridan Decl. 12-14.) From the time of the road's construction, the schedule for vehicular public access has been determined and controlled by the Forest Service.

         Pictures of the road show a clearly visible, large sign at the entrance that says:

PUBLIC RIGHT-OF-WAY
THRU PRIVATE LAND TO GEORGE WASHINGTON NATIONAL FOREST
STAY ON ROAD

(Compl. Ex. E, Dkt. No. 1-5.) As with the text above, the first and last lines of text on the sign are in a larger font than the others. Additionally, at least when it is not open, the Forest Service gate contains a sign saying, “ROAD CLOSED.”

         C. Defendants' Erection of a Gate in October 2013

         After becoming aware of dumped trash, vandalism, and shooting on their property from vehicles on FSR 339, Smith & Dew sought the assistance of local law enforcement, including the Covington City police, and asked them to monitor and police the road. They repeatedly complained about the problems related to the road over a period of years. Apparently, the local authorities told Smith that patrolling the road was a Forest Service responsibility, since the Forest Service owns the road. (Smith Dep. 47-51.) The Forest Service, according to Smith & Dew, patrolled the road only infrequently, and thus had been unable to address defendants' concerns over the nuisances and illegal activities. In an attempt to stop those activities, Smith & Dew hired a contractor to erect a gate in October 2013.

         The gate is stand-alone, i.e., it is not attached to any fence, but it blocks the road just beyond the Forest Service gate already in place. The gate is locked, and Smith & Dew gave a key to the Forest Service. Pictures of the Smith & Dew gate show a sign hanging from it that says, “ROAD CLOSED.” Smith & Dew never obtained any written permission from the Forest Service to erect a gate, and the undisputed evidence is that the ranger who they say gave them oral permission to put up the gate did not have authority to do so.[3] They admitted that the intent of their gate was to prohibit vehicular access by the public unless Forest Service personnel came and opened the gate for any member of the public wanting to use FSR 339. (See, e.g., Smith Dep. 75-76.)

         II. DISCUSSION

         A. Summary Judgment Standard

         Under Rule 56, summary judgment is proper where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists only where the record, taken as a whole, could lead a reasonable jury to return a verdict in favor of the non-moving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009). In making that determination, the court must take “the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc) (quoting Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir. 2003)).

         A party opposing summary judgment “may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citations omitted). Moreover, “[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . .” Id. at 247-48. Instead, the non-moving party must produce “significantly probative” evidence from which a reasonable jury could return a verdict in his favor. Abcor Corp. v. AM Int'l, Inc., 916 F.2d 924 (4th Cir. 1990) (quoting Anderson, 477 U.S. at 249-50).

         Pure questions of law, such as the interpretation of an unambiguous deed, are particularly well-suited to resolution on summary judgment. Bailey v. Town of Saltville, 691 S.E.2d 491, 493 (Va. 2010) (explaining that the nature of an interest in land conveyed by deed is a question of law); Wash. Metro. Area Transit Auth. v. Potomac Inv. Props., Inc., 476 F.3d 231, 235 (4th Cir. 2007) (noting that where a state's law renders the interpretation of a contract a question of law, “summary judgment is appropriate when the contract in question is unambiguous or when an ambiguity can be definitively resolved by reference to extrinsic evidence”). See also Sun Yung Lee v. Clarendon, L.P., 453 Fed.Appx. 270, 278 (4th Cir. 2011) (holding that issues involving the possible creation of an easement in a deed of partial release involved “pure questions of law which are well within the parameters reserved for the district court on a motion for summary judgment”).

         B. Parties' Arguments

         The parties agree that Virginia law applies to the court's construction and interpretation of the Easement Deed. The United States argues that the Easement Deed unambiguously conveyed a permanent easement to the Forest Service to use FSR 339, providing both Forest Service and public access to the National Forest. Because defendants' estates are subservient and the Forest Service has the dominant estate pursuant to the Easement Deed, the gate-which burdens the dominant estate in a manner inconsistent with the easement-must be removed. (See generally Dkt. No. 20.)

         In response, defendants assert that there are disputes of material fact that preclude summary judgment. They advance three arguments in support of their position that they were entitled to erect, and are entitled to maintain, the locked gate. (See generally Dkt. No. 46.) First, they argue that the easement conveyed in the Easement Deed was extinguished and terminated when its purpose-which defendants say was to provide a through road as part of the now-abandoned “Skyline Road Project”-ceased to exist. They rely heavily on “[t]he Easement Deed's reference to the Skyline ...


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