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Robinson v. Nordquist

Supreme Court of Virginia

July 18, 2019

JANE WASHBURN ROBINSON, TRUSTEEE FOR THE JANE WASHBURN ROBINSON LIVING TRUST
v.
NELS P. NORDQUIST, ET AL.

          FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Lisa B. Kemler, Judge

          OPINION

          DONALD W. LEMONS CHIEF JUSTICE

         In this appeal, we consider whether the Circuit Court of the City of Alexandria ("circuit court") properly dismissed trespass and nuisance claims as time-barred and properly construed the provisions of express easements. Additionally, we consider whether the circuit court abused its discretion by denying a petition for a rule to show cause.

         I. Facts and Proceedings

         This appeal involves a dispute between neighboring landowners in Old Town Alexandria. Jane Washburn Robinson ("Robinson"), as Trustee of the Jane Washburn Robinson Living Trust, owns real property located at 404 Duke Street and 303 South Royal Street of Old Town Alexandria (collectively "404 Duke Street"). In December 2015, Robinson filed a complaint in circuit court against Nels P. Nordquist and Jennifer D. Nordquist (collectively "Nordquists"), her neighbors and the owners of 406 Duke Street and 408 Duke Street (collectively "406-08 Duke Street"), alleging that the Nordquists installed an underground sprinkler system, which causes "persistent and damaging encroachments of water" to 404 Duke Street. Additionally, Robinson alleged that the Nordquists violated her rights under two express easements. Robinson later learned that she needed access to certain areas of the Nordquists' property to repair water damage to 404 Duke Street. She moved to amend the complaint to request access to those areas, and the circuit court granted the motion to amend.

         In the amended complaint, Robinson alleged that in 1960, the former owner of 406-08 Duke Street executed a "Deed of Bargain and Sale and Easement," which granted the former owner of 404 Duke Street and her successors "a perpetual easement to keep and maintain openings on the west side of [] 404 Duke Street overlooking the premises 406-[0]8 Duke Street for the purpose of admitting light and air through said openings, and to locate ventilation outlets on and in said west side" ("1960 Easement"). In 1969, the former owners of 404 Duke Street and 406-08 Duke Street executed a Deed of Indenture "to affirm and enlarge the 1960 Easement" ("1969 Indenture"). In relevant part, the 1969 Indenture provides:

A 3-foot strip of land (herein called the Median), the easterly portion of 406-[0]8, adjoining the westerly boundary of 404 [Duke Street], shall forever be and remain open and free of all buildings and structures except the chimney or chimneys hereinafter in Section 3 of this Indenture provided for, and except as aforesaid the same shall be and remain open yard, the right so secured hereby appurtenant to 404 and enjoyed by the party of the second part and any and all persons who succeed her in the ownership of 404.

Section 3 of the 1969 Indenture provides that the owner of 404 Duke Street and "her heirs and assigns" can erect "one or more chimneys" in the median "at any time."

         Robinson asserted that after the Nordquists purchased 406-08 Duke Street, they "significantly expanded" a brick wall "that encloses and blocks access" to the 1960 Easement and "denied [her] use of gates along the brick wall." As a result, Robinson claimed that she cannot "keep and maintain openings on the west side of [] 404 Duke Street." The Nordquists also "constructed an arbor and [] made major changes in their landscaping, including the planting of numerous trees and bushes," which "severely and detrimentally restrict[]" the "amount of light and air entering" 404 Duke Street. Robinson alleged that the brick wall, arbor, trees, bushes, sprinkler system, and various objects such as "ladders and toys" encroached upon the median. Robinson sought declaratory judgment that the Nordquists had "improperly denied" her access to 406-08 Duke Street for the purpose of "maintain[ing] openings" on her property, "violated the [1960] [E]asement's light and air requirement," and violated the Deed of Indenture's requirement that the median remain "open yard."

         With respect to water damage, Robinson alleged that between 1988, when she took possession of 404 Duke Street, and 2005, when the Nordquists took possession of 406-08 Duke Street, her property "did not sustain a single incident of water penetration." "Subsequent to [the Nordquists] installation of their sprinkler system," 404 Duke Street began "suffer[ing] persistent and damaging encroachments of water." Robinson described the encroachments as "on-going," "continuous," and "intermittent," and stated "significant water intrusion and damage did not begin to take place until mid-2011." She alleged the "entrance foyer, kitchen, [] finished basement," and "foundation" had sustained water damage, but did not specify when these areas were first damaged or when the Nordquists installed their sprinkler system. She claimed the "encroachment of water" was both an intentional trespass and a private nuisance, and sought compensatory damages and injunctive relief.

         The Nordquists filed a demurrer and plea in bar to the amended complaint. They demurred to the easement claims, arguing the 1960 Easement did not "create any right of access" to their property. Instead, the 1960 Easement and 1969 Indenture created an "easement of light and air defined by the three foot median." They contended that the "original 1960 [E]asement of light and air contained no boundaries or scope, as would generally be required to properly create an easement." The 1969 Indenture "cure[d] this oversight" by "delineating [the easement's] scope according to a definite no-build zone, the median." They asserted that the 1969 Indenture required the median to be "free of 'buildings and structures," but did not "prohibit additional planting" or "call for the removal of walls, gates, fences, or vegetation." Therefore, the Nordquists argued they had not violated Robinson's rights under the 1960 Easement and 1969 Indenture.

         In their plea in bar, the Nordquists argued that the "water damage claim[s]" were barred by the "five year statute of limitations" that applies to "actions for injury to property." They contended that the amended complaint "alleges a continuous, rather than an intermittent, trespass," and "directly attributes" the "encroachments of water" to the Nordquists' "installation of an underground sprinkler system." They asserted that "the sprinkler installation took place in or about June 2008." Consequently, they argued the trespass and nuisance claims were time-barred because Robinson filed the complaint over seven years after the sprinkler system was installed.

         The Nordquists included correspondence from Robinson dated between 2005 and 2008 as exhibits to the plea in bar. In the correspondence, Robinson informed the Nordquists that their sprinkler was spraying on 404 Duke Street, causing "water damage on the first floor." They also included Robinson's answer to an interrogatory as an exhibit, which stated that Robinson had "not observe[d] any instances of water encroachment during the winter months when the Defendants ceased their watering activities."

         Robinson filed an opposition to the plea in bar, demanding trial by jury. She asserted that fact-finding was needed to determine whether water damage to 404 Duke Street was caused by an "intermittent" or "continuous trespass." Additionally, she argued that a fact-finder needed to consider her "theory that it took a period of time after the installation of the sprinklers for the water infiltration to begin creating structural damage to the mortar in [the] basement wall." Because the "issues raised in the plea in bar [were] factually contested," Robinson asked the circuit court to deny the plea and allow the action to proceed to trial.

         The circuit court held a hearing on the demurrer and plea in bar and heard argument from counsel. At the conclusion of the hearing, the circuit court determined, based on "the four corners of the amended complaint," that "it's very clear [Robinson alleged] an ongoing continuous encroachment" of water. Therefore, the circuit court held the trespass and nuisance claims were barred by the five-year statute of limitations. Robinson then moved for leave to amend the amended complaint to clarify the water encroachments were intermittent, rather than continuous. The court denied the motion, stating an amendment was not "appropriate" on the "eve of trial."

         The circuit court also held that pursuant to the language of the 1960 Easement, "the owner of 404 Duke Street [] shall be granted access to enter the yard of 406 Duke Street for the purposes of maintaining the openings and ventilation outlets on and in the west side of 404 Duke Street." However, the circuit court determined "[t]he term 'light and air' in the 1960 [E]asement is vague and ambiguous, without dimensions, and is therefore unenforceable." With respect to the 1969 Indenture, the circuit court held that it "establishes a valid easement for a three-foot median," which "is limited to prohibiting a building or structure," as defined under Code § 36-97. The circuit court then determined that the "specific items identified in the [a]mended [c]omplaint as violating the three foot easement are neither buildings nor structures [under ...


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