Can you prevent your neighbor from putting a locked gate across your access easement? The answer may well be ‘yes’  under a relatively recent Virginia Court of Appeals case about gates across easements, although as usual, it depends on the nature of the easement and of the gate.

A prescriptive easement is a type of easement that is established by the use of one property, called the “servient” parcel, by the owners of another parcel, referred to as the “dominant” parcel, for the benefit of the dominant parcel. (In comparison to a prescriptive easement which is created by use, you can also have an express easement, where the parties agree to an easement and put it to record in a deed of easement or easement agreement.) A prescriptive easement is proven by a series of factors including the length of time of the prescriptive use and the adverse nature of the use. Virginia law places the burden on the party claiming a prescriptive easement to establish that the use was adverse, under claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the landowner for at least twenty years. 6B M.J. Easements §14. See also Johnson v. DeBusk Farm, Inc., 272 Va. 726, 636 S.E.2d 388. The person claiming a prescriptive easement must establish these elements by clear and convincing evidence. Hafner v. Hansen, 279 Va. 558, 536 691 S.E.2d 494, 497 (2010).

In Boxley v. Crouse, 79 Va. App. 350 (2023), the Court of Appeals affirmed the circuit court’s decision to grant a prescriptive easement across the appellant’s land and required that the landowner take down her gate over the right of way. Two adjoining parcels were accessible by a road called Hawk Trail. The parcel owned by the Crouses was accessed by previous owners by way of Hawk Trail exclusively from 1976. The Crouses came into ownership in 1989. Previous owners of the Crouse parcel, and the Crouses, maintained, improved, and widened portions of Hawk Trail.

The Boxley parcel, under its previous owner, had a gate erected over the portion of Hawk Trail that crossed its property. Importantly, the gate was not connected by fences reaching to either side of Hawk Trail. The gate was never locked, and a key was mailed to the Crouses. Neither the gate nor the key was ever discussed between the previous owner of the Boxley parcel and the Crouses. The new owner, Boxley, installed a new lock on the gate in 2020 and did not provide the Crouses with the key. The circuit court found that the Crouses had established a prescriptive easement over the portion of Hawk Trail crossing the Boxley parcel and that the gate was in violation of Virginia Code §33.2-110(A).

Boxley appealed the decision below and argued that the Crouses did not prove their use of Hawk Trail was continuous and uninterrupted, and that the Crouses failed to prove their use was

hostile since the previous owner of the Boxley parcel mailed the Crouses a key. Additionally, Boxley argued that the statute, which speaks to how one may establish a gate across a right of way, was permissive, as opposed to restrictive.

The Court of Appeals affirmed the trial court’s decision. The use of the property does not need to be every day of the week including holidays in order to be considered continuous and uninterrupted. The Court of Appeals explained that the use “[M]ust only be “of such frequency and continuity as to give reasonable notice to the landowner that [such a] right is being exercised against him.” Id. at 356, citations omitted. The use of Hawk Trail after the gate was erected in 1995 was “undisputed evidence” that the Crouses used Hawk Trail for more than the prescriptive period, 20 years in Virginia.

Mailing a key to the Crouses did not defeat their claim of an ‘adverse use’ against Boxley and the previous owner. An adverse use is “the intentional assertion of a claim hostile to the ownership right of another,” but does not require an express hostile intention. Id. at 357, citations omitted. Instead, the claim of right to use the land as one’s own to the exclusion of all others may be implied by conduct. Where the use is “open, visible, and continuous throughout the required prescriptive period,” the claimant is “entitled “to a presumption that the use arose adversely or under a claim of right.”” Id., citing Hafner, 279 Va. at 563.

The Court of Appeals held that because the Crouses had established a presumption that their use of Hawk Trail arose adversely or under a claim of right, the burden shifted to Boxley, the servient estate, to show that the use was permissive and not adverse. Receiving a key to a gate that was never locked was mere circumstantial evidence of an ‘agre

ement’ (which would have defeated the Crouses’s adverse use claim). Circumstantial evidence will not be enough to rebut a presumption that a claim matured adversely or under a claim of right.

Not only were the Crouses granted a prescriptive easement, but the Court of Appeals also held that Boxley’s gate across Hawk Trail violated Virginia Code §33.2-110(A). Virginia Code §33.2-110(A) reads as follows:

Any person owning land over which another or others have a private road or right-of-way may, except when it is otherwise provided by contract, erect and maintain gates across such roads or right-of-way at all points at which fences extend to such roads on each side thereof.

The Court applied an analysis from Ridgwell v

. Brasco Bar Corp., 254 Va. 458, 493 S.E.2d 123 (1997). There, the Virginia Supreme Court determined that the statute in question, or its predecessor, excluded any type of gate other than one connecting to fences that extended the length of the right of way. Boxley’s gate was free-standing and not connected at any side by a fence. Ridgwell and Boxley show us that free-standing gates, while fashionable and helpful for a ‘secret garden’ a

pproach to landscaping, will not stand when they are placed over an easement if they obstruct the easement or do not comply with state code.

Just as the servient la

 

ndowner cannot obstruct a right of way with a gate, the dominant landowner who has a prescriptive easement or a right of way cannot restrict the servient landowner with a gate. In a case where a dominant landowner tried to restrict access to their easement with a gate against the servient estate and other users, the Virginia Supreme Court held such restriction to be unreasonable where the use of the gate did not unreasonably interfere with the lawful dominant use. Shenandoah Acres v. D.M. Conner, 256 Va. 337, 342, 505 S.E.2d 369, 371 (1998).

An additional Court of Appeals case, Forbes v. Cantwell, 78 Va. App. 454 (2023), affirmed the use of a gate within a 40-foot-wide easement area if the gates are in compliance with Virginia Code §33.2-110 and must remain unlocked and must be able to be easily opened and closed. What we can conclude from Forbes and the body of Virginia case law on gates across a right of way is that the gate must comply with state code, must not impede the dominant estate, and must be unlocked with the ability to open and close the gate. The practical application of these guidelines is that fences up to the right of way area are alright, but gates within a right of way may be better for keeping animals at bay than your neighbors (at least the ones with easement rights).

Subscribe

Virginia Augello is an attorney with the firm’s Eminent Domain / Right of Way Practice Group, focusing on the practice group’s eponymous areas of eminent domain and right of way as well as local government work.