In Barr v. Garten Dev., LLC, the Virginia Court of Appeals considers an appeal involving two adjoining properties and a dispute over whether a subsequent deed extinguished an original right of way grant between the properties. The adjoining properties are owned by the Barrs and Garten Development (Garten). Garten is the dominant estate, and it accesses its property by a private gravel road (“Road”) that crosses the Barrs’ property, the servient estate. The original right of way was granted in a 1914 Deed (“1914 Deed”), which authorized a “present right of way of unspecified width for ingress and egress and all other reasonable uses including the removal of timber and wood products.” In addition to the right of way for ingress and egress, the 1914 Deed also granted to the dominant estate: (1) all mineral rights under the surface of the servient estate; (2) all necessary rights of way for development purposes of the mineral property; and (3) a “sufficient quantity of land” for ore washing purposes and necessary for development of the mineral property.
In 1979, two Deeds (“1979 Deeds”) were recorded by the predecessor owners of the Barr and Garten properties. The first Deed granted Garten’s predecessor the right to lay a water line across the Barr property and the right of ingress and egress over an “established road” to the Garten property. The second Deed released Garten from “all restrictions, easements, and mineral rights” in the Barr Parcel.
The Barrs acquired the servient property by deed in 1992, which read as follows:
“This conveyance is subject to the reservations of mineral rights, rights of way, and other rights which were reserved . . . in a certain deed . . . dated March 1, 1914, . . . but only to the extent the same are still valid and subject to the Deed dated March 28, 1979 . . . which purports to release and convey certain of said rights and reservations.”
Garten acquired the property in 2021 and sought to improve the Road in furtherance of its logging endeavors. In response, the Barrs objected and filed a declaratory judgment action to prevent Garten from widening the road or “undertaking any improvements beyond its present boundaries.” The Barrs argued that the 1914 Deed, authorizing a “present right of way of unspecified width for ingress and egress and all other reasonable uses including the removal of timber and wood products,” was extinguished by the 1979 Deeds, which created a new right of way confined to the existing (“established”) road and released all other easements. The Barrs also argued that the 1979 Deeds extinguished Garten’s right to improve the road. The trial court ruled in favor of Garten on both arguments, and the Barrs appealed.
On appeal, the Court affirmed the ruling for Garten, reasoning that the second 1979 Deed released only the “easements and mineral rights” but not “rights of way for proper ingress and egress,” which is a different category of rights expressly transferred under the 1914 Deed. The Court found that if the second 1979 Deed intended to extinguish the right of way granted in the 1914 Deed, it would have done so with explicit language referring to the “right of way for ingress and egress,” as opposed to a blanket release of “all restrictions, easements, and mineral rights.” The Court based its reasoning on the fact that the 1914 Deed did not use the terms “easement” and “rights of way” interchangeably, and that the grant of the right of way for ingress and egress had a specific meaning in the 1914 Deed that was not encompassed by the blanket release of easements and restrictions in the second 1979 Deed.
The Court also looked to intervening Deeds granted in 1948 and 1957 in the chain of title to the Garten Parcel that specifically referred to the right of ingress and egress over the Road as a “right of way.” Finally, the second 1979 Deed refers to releasing a “certain” “portion” of the rights created in the 1914 Deed, providing further evidence that the second 1979 Deed did not intend to extinguish the 1914 Deed in its entirety and did not apply to the right of way for proper ingress and egress.
Because there was not a “clear and unequivocal” intent to abandon the right of way in the 1979 Deeds, the Court of Appeals held that the 1979 Deeds did not extinguish the rights of way for ingress and egress reserved in the 1914 Deed. Accordingly, the Barr Parcel remains subject to those rights of way for ingress and egress, including a right of way over the Road. Further, the Court found that Garten’s intent for modest improvements to the Road in furtherance of its logging endeavors is within the present scope of the right of way granted by the 1914 Deed.
Barr v. Garten emphasizes the enduring nature of deeds and how they can preserve easements and rights of way through subsequent property transactions, absent an explicit release with a clear intention to extinguish those rights.
Julianne Kouba is a Pender & Coward attorney focusing her practice on civil litigation and local government matters. She is proficient in Spanish. During law school, Julianne interned as a summer associate with the firm and was a member of the Bill of Rights Journal at William & Mary.
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