ANALYSIS OF FEBRUARY 9, 2023 SUPREME COURT OPINION
(Posted February 9, 2023) The Supreme Court of Virginia hands down a single published opinion this morning. Horn v. Webb is primarily about easements by prescription, though there’s a side order of punitive damages on the menu.
This appeal relates to lakefront property in Fairfax County, designated as Lot 612. Back in the Johnson Administration – Lyndon; not Andrew – the owners of that lot reached an agreement with two landlocked neighbors. Lot 612’s owners would grant to the owners of Lots 613 and 615 a nonexclusive but still valuable easement of access to the lake. In exchange, the two neighbors agreed to build a retaining wall – I assume this is a bulkhead – along the lake frontage of Lot 612. The parties memorialized this agreement in a deed of easement.
The owners of the inland lots built the wall and a set of steps to allow access by all three owners to the lake; they also moored a pontoon boat along the frontage of Lot 612, and kept it there for many years. (The two inland neighbors jointly owned the boat. It sank about 50 years later, but was quickly replaced.) They also periodically stored canoes on Lot 612, presumably just landward of the bulkhead.
Gradually, title to all three properties changed hands. The current owners include the Webbs, who own the waterfront lot, and the Horns, who own Lot 615. The Webbs bought their lot in 2017 and wrote to the owners of the inland lots, asserting that the easement didn’t allow the mooring of the pontoon or the storing of the canoes on the site. The owners of the inland lots refused to change anything in response, citing their rights under the deed of easement.
Now we’re heading for court. The owners of Lot 613 sued the Webbs, seeking a declaratory judgment that they possessed the disputed rights; the Webbs counter-sued for trespass. (Justice McCullough, who pens today’s opinion for a unanimous court, helpfully calls this “Round 1.”) The circuit court ruled in favor of the Webbs, the owners of the servient tenement.
Instead of appealing, the losing owners of Lot 613, having had enough, sold their half interest in the boat to the Horns for the princely sum of one dollar, American. When the Horns still refused to remove the boat and the smaller craft, it was the Webbs’ turn to sue. They sought a declaration and punitive damages, asserting that in the wake of Round 1, the Horns could no longer plausibly claim the disputed rights. They asserted that the Horns were in privity with the owners of Lot 613, so they were bound by the earlier ruling.
The court convened a bench trial with a different judge. The result was favorable for the Webbs: judgment for compensatory and punitive damages, plus a declaration that the Horns’ use was in excess of the limited rights in the deed of easement. The Horns sought and received a writ.
Today’s opinion offers something for each side. The justices first affirm the circuit court’s holding that the Horns had not established a prescriptive right to store small watercraft on Lot 612. The evidence at trial established some periodic use like that, but not continuous use for the required 20-year period.
The Horns fare better when it comes to the mooring of the pontoon boat, as the court rules that the evidence established the requisites for a prescriptive easement: open, visible, exclusive, and continuous use under claim of right for the statutory period. The fact that the owners of Lot 613, plus the Webbs themselves, also had the right to use the space doesn’t make the Horns’ (and their predecessors’) use any less exclusive. That may sound counterintuitive, but there’s unambiguous SCV precedent to back it up.
The Supreme Court today rejects the Webbs’ claim that their neighbors’ use was permissive. That matters because a permissive use can never mature into a prescriptive easement. Here’s a key passage from this part of the opinion: “The fact that prior owners of these lots were on friendly terms does not establish a permissive use. Failure to object is acquiescence. Acquiescence is not the same as granting permission.” The court adds that there’s no “tacking” allowed of prior owners’ consent to use the easement, noting that once Lot 612’s original owners sold the lot, any permission that they may have granted must end. That means that the Webbs can’t establish that the Horns’ use was permissive, so that use can ripen into a prescriptive easement.
The court last takes up the punitive-damage award. After independently reviewing the record, the justices first hold that the Horns can’t be liable for punitives for the pontoon-boat mooring, because they’re now the prevailing parties. Even on the claim involving the canoes, the court today notes that the Horns had plausible evidence to support their defense. Although the circuit court ruled against them, there’s no ground to find that they acted maliciously. And the Horns weren’t parties to the Round 1 proceedings, so they can’t be bound by it. The punitive-damage award thus vanishes today.
In all, this probably makes the Horns, the owners of the dominant tenement, the primary victors today. They have to relocate their canoes and will owe $3,300 for trespass damages; but they retain the right to moor the pontoon boat and they escape liability for about $8,000 in damages on that claim. Most important, the justices vacate a $45,000 punitive-damage award.
Ah, but this is probably a Pyrrhic victory, you’re thinking, because the Horns must have incurred appellate legal fees that matched or exceeded the amount of the damages that they saved by appealing. Surprise! The Horns appeared in the Supreme Court pro se. That’s a rare victory for an uncounseled appellate litigant.
One last point: Today’s decision comes down after a quick turnaround. The justices entertained oral argument in this appeal on January 10, just over four weeks ago. This is thus the first appellate decision issued in an appeal argued in 2023. The Supreme Court’s docket now contains just five undecided appeals in argued cases – two from November and three from January. The February argument docket isn’t out yet, but as I’ve noted here, I expect approximately eight appeals to be argued when the full court next convenes in less than three weeks.