Present: All the Justices 

RACHEL P. CHANEY 

v. Record No. 941562 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 June 9, 1995 

CASPER B. HAYNES, JR., ET AL. 

 FROM THE CIRCUIT COURT OF KING AND QUEEN COUNTY 

Samuel Taylor Powell, III, Judge 

 In this appeal, we consider whether the evidence is 

sufficient to support the trial court's ruling that a 

prescriptive easement had been established. The dispositive 

issue is whether the plaintiffs proved an adverse use. 

 The property involved in this dispute is located in King and 

Queen County. In 1944, J.M. Garnett purchased a five-acre tract 

which he later subdivided. By deed, the Garnetts granted each 

lot purchaser 

 the right to use the strip of land 10-ft. wide over and 

along the northern boundary of this lot and over and 

along the northern boundary of all other lots in the 

Re-Subdivision and over and along the remaining 

property of J.M. Garnett extending from the public 

highway on the east to low water mark of York River on 

the west for purposes of access to the York River and 

to the public highway. This right shall be in common 

with a similar right of use by the [grantors] and the 

owners of all the land now owned by J.M. Garnett and by 

the owners of all the lots in the Re-Subdivision herein 

recited. 

The described easement runs across a lot now owned by Josephine 

Erwin. 

 Casper B. Haynes, Jr., Josephine Erwin, and the other 

plaintiffs are all successors in interest to the original 

purchasers of the Garnett lots. Despite the fact that their 

express easement runs across Erwin's property, the plaintiffs and 
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their predecessors have used land adjacent to Erwin's property to 

gain access to the York River. This adjacent lot, formerly owned 

by Frances Sutton, is now owned by Rachel P. Chaney. The 

plaintiffs alleged that, at the time Chaney purchased the lot in 

1991, she placed a fence across a portion of the lot, thus 

preventing access to the river. 

 The plaintiffs filed a petition for temporary injunction, 

asking the trial court to enjoin Chaney from interfering with 

their use of an alleged ten-foot wide right-of-way across 

Chaney's land between Route 667 and the York River. The 

plaintiffs also filed a petition for declaratory judgment 

asserting that they had established a prescriptive easement, ten 

feet wide, over Chaney's land. The trial court denied the 

request for injunctive relief and referred the petition for 

declaratory judgment to a commissioner in chancery. 

 At the commissioner's hearing, all the plaintiffs who 

testified stated that, until the present suit was filed, they 

believed their easement ran over Chaney's property between a 

group of cedar trees to the north and a stand of bushes to the 

south. That area is approximately 40 to 50 feet wide. 

 These plaintiffs further stated that they used this way to 

get to the river because they understood that their easement was 

located there. One plaintiff, Michael S. Duvall, testified that 

he used the way with knowledge that his easement was only ten 

feet wide. Duvall stated that, when he used the way, he drove 
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his vehicle straight down the middle of the area between the 

trees and the shrubs, apparently in an attempt to comply with the 

terms of his easement. The other plaintiffs testified that they 

used the whole area between the trees and the shrubs because they 

thought it was included in their easement. 

 The commissioner received other evidence indicating that the 

plaintiffs' use of the way was exclusive, continuous, 

uninterrupted, and with the acquiescence of the Suttons, and that 

such use had continued for a period of over 20 years. The 

commissioner concluded that the plaintiffs had acquired a 

prescriptive easement over Chaney's property, and stated that 

they had established an adverse use by their use of the entire 

area between the trees and the shrubs. 

 After overruling Chaney's exceptions to the commissioner's 

report, the trial court entered an order confirming the report. 

This appeal followed. 

 Chaney argues that the plaintiffs did not establish a 

prescriptive easement because they did not prove the element of 

adverse use. Chaney asserts that, if the users of a way are 

under the mistaken belief they have an express easement granting 

them the right to use the way, and they do not intend to use land 

over which they have no right-of-way, then such use of the 

property is not adverse. See Clatterbuck v. Clore, 130 Va. 113, 

121-22, 107 S.E. 669, 672 (1921). 

 In response, the plaintiffs argue that the element of 
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adverse use is satisfied by their use of the entire area between 

the cedar trees and the shrubs, instead of only a ten-foot wide 

strip across the property corresponding to the width of the 

easement they believed they were entitled to use. Citing Pettus 

v. Keeling, 232 Va. 483, 489-90, 352 S.E.2d 321, 326 (1987), the 

plaintiffs contend that the location and size of their right-ofway should be measured by their actual use of the property. We 

disagree with the plaintiffs. 

 Our standard of review in a case like this is well 

established. Since the trial court fully approved the report of 

a commissioner in chancery who heard evidence ore tenus, the 

trial court's decree will not be reversed on appeal unless it is 

plainly wrong. Ward v. Harper, 234 Va. 68, 70, 360 S.E.2d 179, 

181 (1987); Pavlock v. Gallop, 207 Va. 989, 994, 154 S.E.2d 153, 

157 (1967). Thus, we must determine whether the conclusions of 

the commissioner, as approved by the trial court, are supported 

by credible evidence. Ward, 234 Va. at 70, 360 S.E.2d at 181; 

Surf Realty Corp. v. Standing, 195 Va. 431, 436, 78 S.E.2d 901, 

904 (1953). 

 In determining whether the plaintiffs established a 

prescriptive easement over Chaney's land, we apply the settled 

rule that 

 [t]o establish a private right of way by prescription 

over lands of another, the claimant must prove, by 

clear and convincing evidence, that his use of the 

roadway was adverse, under a claim of right, exclusive, 

continuous, uninterrupted, and with the knowledge and 

acquiescence of the owners of the land over which it 

passes, and that the use has continued for at least 20 
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years. 

Ward, 234 Va. at 70, 360 S.E.2d at 181. Accord Pettus, 232 Va. 

at 485, 352 S.E.2d at 323. However, "when the user of a way over 

another's land clearly demonstrates that his use has been open, 

visible, continuous, and exclusive for more than twenty years, 

his use is presumed to be under a claim of right." Umbarger v. 

Phillips, 240 Va. 120, 124, 393 S.E.2d 198, 200 (1990). Accord

Pettus, 232 Va. at 485, 352 S.E.2d at 323. "[T]his presumption 

of a grant or adverse right is in Virginia prima facie only and 

may be rebutted by evidence." Davis v. Wilkinson, 140 Va. 672, 

677, 125 S.E. 700, 702 (1924). 

 Chaney argues that any such presumption in the plaintiffs' 

favor is rebutted, as a matter of law, by the undisputed evidence 

that all the plaintiffs used the way under the mistaken belief 

that their express easement designated that location, and that 

they did not intend to use any land not included in the grant. 

We agree. 

 The essence of an adverse use is the intentional assertion 

of a claim hostile to the ownership right of another. Use of 

property, under the mistaken belief of a recorded right, cannot 

be adverse as long as such mistake continues. See Clatterbuck, 

130 Va. at 121-22, 107 S.E. at 672; Clinchfield Coal Co. v. 

Viers, 111 Va. 261, 264, 68 S.E. 976, 977 (1910); Schaubuch v. 

Dillemuth, 108 Va. 86, 89, 60 S.E. 745, 746 (1908). The present 

record shows that the plaintiffs based their use of Chaney's land 
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solely on their mistaken belief that it was the land described in 

their express easement. Thus, the plaintiffs have failed to 

prove that a prescriptive easement was established. 

 We find no merit in the plaintiffs' contention that their 

use of the "whole area" between the cedar trees and the bushes 

proved an intent to use adversely all but a ten-foot-wide strip 

across the property. With the exception of Duvall, all the 

plaintiffs who testified stated that they believed their easement 

covered the entire area in question. Duvall testified that he 

used only a strip down the center of the way. Thus, none of the 

plaintiffs' testimony evidenced an intent to use any property 

other than what they believed their express easement allowed. 

 We also disagree with the plaintiffs' contention that our 

holdings in Pettus and in McNeil v. Kingrey, 237 Va. 400, 377 

S.E.2d 430 (1989), require a different result here. In those 

cases, we upheld findings that prescriptive easements had been 

established when the evidence showed, among other things, that 

both of the easement claimants held a general belief they had the 

right to use the ways at issue. Pettus, 232 Va. at 488, 352 

S.E.2d at 325; McNeil, 237 Va. at 402, 377 S.E.2d at 431. 

 Neither of those claimants, however, asserted that his right 

derived from an express easement. Thus, the claimants' intended 

use of the respective properties was hostile to the interests of 

the property owners and satisfied the requirement of an adverse 

use. Here, in contrast, the plaintiffs intended to use only the 
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land described in their express easement. Since the plaintiffs 

failed to prove an adverse use, we conclude that the trial 

court's ruling approving the commissioner's report is plainly 

wrong. 

 For these reasons, we will reverse the trial court's 

judgment and enter final judgment in favor of Chaney. 

Reversed and final judgment.