ANALYSIS OF DECEMBER 16, 2021 SUPREME COURT OPINION

(Posted December 16, 2021) As the year winds down, the Robes by the James give us a new published opinion. Garner v. Joseph involves the question whether the holder of an easement is an indispensable party to a boundary-line adjustment suit between fee-simple owners.

The property in issue here is in Newport News, adjacent to a body of tidal water named Deep Creek. From what I can tell by looking at satellite images, it looks like a very nice neighborhood with what I take to be expensive homes. Homeowners named Edwards own a parcel that fronts on the water. This lot separates their neighbors to the east, the Garners, from the waterfront, but an Eisenhower era deed to the Garner property creates a 6’ easement in their favor over the Edwards lot, so the Garners can reach the creek. As expressly allowed by the deed, the Garners built a pier out over the water along that 6’ strip.

In 2018, the Edwardses entered into what I perceive was a friendly lawsuit with their waterfront neighbors to the south, the Josephs. The suit was intended to fix the boundary line between the Edwards lot and the Joseph lot. As usually happens in suits like this, the circuit court entered the parties’ desired order to carry out their agreement on the boundary’s location.

This order generated a problem: The new boundary placed the Garners’ pier partly in the Josephs’ riparian area. No one had thought it necessary to name the Garners in the friendly suit, so they had no opportunity to participate and protect their easement interest.

That wouldn’t have mattered if the Josephs hadn’t then sent a no-trespassing notice to the Garners, telling them to stop using “the illegal pier construction and applicable riparian waters.” The Garners responded by filing a suit to invalidate the 2018 consent decree.

The issue in the case quickly turned to whether the Garners were proper, necessary, or indispensable parties to the boundary-line suit. Proper parties are those who may, but need not, be joined in a lawsuit. Necessary parties should be joined except in two limited situations: (1) where it’s practically impossible to join everyone, and existing parties have the same interests; or (2) the absent party’s interests “are separable from those of the parties before the court, so that the court may enter a decree without prejudice to the rights of the absent party.”

The third category, indispensable parties, comprises those without whom the court cannot adjudicate the case. The question here is whether the Garners were necessary or indispensable parties. If they were, then they can sue to canopener the 2018 judgment.

The circuit court ruled that the Garners weren’t necessary parties, so it dismissed the suit. Today the Supreme Court reverses, finding that an easement is a sufficient interest to make it necessary to include them in any adjudication of the property boundary. Because the relocation effectively deprived them of material rights, expressly including riparian rights, other parties couldn’t sue without bringing the easement holders into the suit.

Justice McCullough pens today’s opinion for a unanimous court. He distinguishes a previous decision in which the court had ruled that easement holders weren’t necessary, because their interests had been adequately represented by others in the suit whose position substantially matched theirs. Here, no one stood in the position of the Garners; no one even tried to protect their rights.

I’m grateful to the court for including a boundary survey in today’s opinion, setting out the parties’ lot lines. I tend to be visually oriented, and I greatly appreciated this visual aid. I’m also profoundly grateful to the Wolfcales and the Van Slykes and the Reeders and the Clarks and the Stoopses and the Simses and the Danos. These are my treasured neighbors adjacent to Stately Emmert Manor. I’m confident that none of them would think of doing anything so unneighborly as sending the trespassing notice that we saw here. There’s a lot to be said for treating your neighbors with kindness.