PRESENT: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and 

Powell, JJ., and Russell, S.J. 

NORFOLK SOUTHERN RAILWAY COMPANY 

 OPINION BY 

v. Record No. 131066 JUSTICE ELIZABETH A. McCLANAHAN 

 APRIL 17, 2014 

E. A. BREEDEN, INC. 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

James V. Lane, Judge 

 Norfolk Southern Railway Company (Norfolk Southern) appeals 

from the judgment of the circuit court granting permanent 

injunctive relief to E. A. Breeden, Inc. (Breeden) requiring 

Norfolk Southern to restore a private grade crossing over its 

railway tracks in Rockingham County. We will affirm the 

judgment of the circuit court. 

I. BACKGROUND 

 The current action involves a private grade crossing across 

Norfolk Southern's railway tracks created pursuant to a crossing 

agreement dated March 26, 1940, and recorded in the circuit 

court clerk's office of Rockingham County (Crossing Agreement). 

The Crossing Agreement was entered into by the owners of the 

156-acre T. L. Yancey estate (Yanceys) and Norfolk & Western 

Railway Company (Norfolk & Western), a predecessor to Norfolk 

Southern. 

 Pursuant to the Crossing Agreement, Norfolk & Western 

agreed to construct and maintain a new private grade crossing 

for use by the Yanceys in exchange for the Yanceys' agreement to 
2

release their rights to the two then existing private crossings 

that were to be abandoned.1 The Crossing Agreement expressly 

"grant[ed] unto the [Yanceys] the right and privilege of a 

private grade crossing about 18 feet in width, over, upon and 

across the right of way and tracks of [Norfolk & Western]" and 

obligated Norfolk & Western "to construct and maintain the said 

crossing.". The Crossing Agreement specifically provided: 

[The Yanceys] covenant and agree that the 

private crossing to be constructed hereunder 

shall be used solely in their own interest 

and for their own benefit, and that they 

will indemnify and save harmless the Railway 

Company from any and all claims for damage 

or injury to person, including death, or 

property, resulting from their use of said 

grade crossing. 

In addition, the Crossing Agreement stated that it "shall be 

binding upon the heirs, executors, administrators, successors 

and assigns of the parties hereto." 

 In 1996, Breeden acquired title to a 2.56 acre tract that 

was originally a part of the T. L. Yancey estate tract and, in 

1999, leased a house and yard located upon this tract to Todd 

and Michelle Ditton. In 2001, Todd Ditton was injured when his 

vehicle was struck by a Norfolk Southern train at the crossing. 

 

1

 At the time the Crossing Agreement was entered into, the 

Yancey Estate was located on both sides of the railroad tracks 

and had access to a public road, now State Route 642, and U.S. 

Highway No. 12, now U.S. Route 340, located on the opposite side 

of the railroad tracks from State Route 642. 
3

Ditton filed an action against Norfolk Southern and the parties 

settled the action in 2005. 

 In 2006, Norfolk Southern filed an action against Breeden 

seeking to recover the settlement amount as well as the costs 

and attorney's fees associated with the Ditton litigation based 

on the indemnity clause of the Crossing Agreement 

(indemnification litigation). The circuit court ruled that 

Norfolk Southern was not entitled to indemnification or 

contribution from Breeden. In reaching its decision, the 

circuit court ruled that the Crossing Agreement was a covenant 

running with the land, and that Ditton, as lessee of Breeden, 

was a successor to the Crossing Agreement and had a right to use 

the crossing. 

 The circuit court further ruled that Ditton's use of the 

crossing was not attributable to Breeden and, therefore, Breeden 

was not obligated under the Crossing Agreement to indemnify 

Norfolk Southern for the costs incurred and damages paid by 

Norfolk Southern arising from Ditton's use of the crossing. 

Norfolk Southern filed a petition for appeal with this Court, 

which petition was refused by an unpublished Order. See Norfolk 

Southern Railway Company v. E. A. Breeden, Inc., Record No. 

080429 (June 13, 2008). 

 At some time subsequent to the conclusion of the 

indemnification litigation, Norfolk Southern removed the private 
4

crossing. Breeden filed a complaint against Norfolk Southern 

seeking a permanent injunction requiring Norfolk Southern to 

replace and maintain the crossing. Breeden also sought 

compensatory and punitive damages alleging breach of contract, 

tortious interference with the right of way, and nuisance. 

 Norfolk Southern filed a demurrer to the complaint on the 

grounds that the prior rulings of the circuit court established, 

as a matter of law, that Breeden materially breached the 

Crossing Agreement and was not entitled to enforce it because 

Breeden permitted use by Ditton that was not solely in Breeden's 

interest and not solely for Breeden's benefit. Overruling the 

demurrer, the circuit court held that based on its previous 

rulings that Ditton was a successor in interest under the terms 

of the Crossing Agreement and his use of the crossing was 

independent of Breeden, it could not rule that Breeden 

materially breached the Crossing Agreement as a matter of law.2

 Breeden filed a motion for summary judgment seeking a 

judgment that Norfolk Southern was obligated to maintain the 

crossing and an order requiring Norfolk Southern to replace the 

private crossing on the grounds that the circuit court's prior 

holdings were binding under principles of collateral estoppel. 

 

2

 The circuit court sustained Norfolk Southern's demurrer to 

the claim for tortious interference and punitive damages. 
5

Norfolk Southern opposed the motion for summary judgment on the 

grounds that there were genuine issues of material fact as to 

whether Breeden sustained actual injury or damages to recover on 

a breach of contract claim and that Breeden was not entitled to 

injunctive relief because it had not presented evidence of 

irreparable harm and lack of an adequate remedy at law. In 

addition, Norfolk Southern argued that Breeden's motion for 

summary judgment failed to address the affirmative defenses 

raised by Norfolk Southern, including estoppel, laches, unclean 

hands, and first material breach. 

 The circuit court denied Breeden's motion for summary 

judgment and held an evidentiary hearing on Breeden's request 

for permanent injunctive relief. Upon consideration of the 

evidence presented at the hearing and certain concessions made 

by Norfolk Southern, the circuit court granted the request for 

injunctive relief requiring Norfolk Southern to replace the 

crossing. 

II. ANALYSIS 

A. First Material Breach 

 Norfolk Southern argues that the circuit court erred in 

overruling the demurrer and enforcing the Crossing Agreement 

because Breeden committed the first material breach of the 

Crossing Agreement, thereby precluding Breeden from enforcing 

the agreement. See, e.g., Countryside Orthopaedics, P.C. v. 
6

Peyton, 261 Va. 142, 154, 541 S.E.2d 279, 285 (2001); Horton v. 

Horton, 254 Va. 111, 115-16, 487 S.E.2d 200, 203-04 (1997). 

 We have not previously applied the doctrine of first 

material breach to vested property rights granted under a real 

covenant. Indeed, this doctrine is ill-suited to address 

situations in which the covenantor seeks to excuse its 

unilateral termination of real property interests held by other 

landowners. Nevertheless, the circuit court did not err in 

concluding there was no material breach by Breeden. In 

previously determining the enforceability of the indemnity 

clause of the Crossing Agreement in the indemnification 

litigation, the circuit court ruled that the Crossing Agreement 

is a valid covenant running with the land such that Breeden, as 

a successor to the Yanceys, was entitled to the use and benefits 

of the crossing.3

 Additionally, the circuit court ruled that 

Ditton, as Breeden's lessee, was a successor under the terms of 

 

3

 Both parties asserted that the circuit court's prior 

rulings were binding in the current litigation under principles 

of collateral estoppel, and the circuit court agreed with these 

assertions. Neither party has assigned error to the circuit 

court's ruling in this case that it was bound by its previous 

rulings that the Crossing Agreement was a covenant running with 

the land and that Breeden and its lessee were successors under 

the Crossing Agreement. Therefore, we will not revisit those 

issues. See Rule 5:25 (no ruling of the trial court will be 

considered "as a basis for reversal" unless objection stated). 
7

the Crossing Agreement and, therefore, had a legal right to 

utilize the crossing independent of whether Breeden permitted 

such use by Ditton. The circuit court further ruled that 

"Ditton's use of the crossing did not solely benefit [Breeden] 

but benefited Ditton independently." Since the Crossing 

Agreement expressly "grant[ed] unto the [Yanceys and their 

successors] the right and privilege" to use the crossing "solely 

in their own interest and for their own benefit," Ditton's use 

of the crossing for his own benefit was not a violation of the 

Crossing Agreement. 

 Notwithstanding Ditton's right under the Crossing Agreement 

to use the crossing as a successor for his own benefit, Norfolk 

Southern argues that Breeden breached the Crossing Agreement by 

allowing its lessee to use the crossing in a means that was not 

solely in Breeden's own interest or for Breeden's own benefit. 

Norfolk Southern's argument, however, has no merit because the 

Crossing Agreement did not prohibit the conveyance or lease of 

the property benefiting from the crossing and did not require 

that the use of the crossing be excluded from any conveyance or 

lease of the property benefiting from the crossing. To the 

contrary, the Crossing Agreement provided it was "binding upon 

the heirs, executors, administrators, successors and assigns of 

the parties hereto." Therefore, the Crossing Agreement did not 

obligate Breeden to preclude its lessee from using the crossing 
8

for the lessee's benefit and Breeden cannot be deemed to have 

breached the Crossing Agreement in not preventing such use.4

B. Injunctive Relief 

 Norfolk Southern also argues the circuit court erred in 

granting the injunction without requiring Breeden to prove harm 

and without balancing the equities. "[T]he decision to grant or 

deny an injunction is within the discretion of the trial court, 

and it will not be disturbed on appeal unless it is plainly 

wrong." Snead v. C&S Props. Holding Co., 279 Va. 607, 613, 692 

S.E.2d 212, 215 (2010). 

 At the hearing, Breeden introduced evidence regarding its 

use of the crossing and safety concerns caused by the removal of 

the crossing due to the lack of ingress or egress during times 

of high water or flooding that blocked other access. Although 

Norfolk Southern proffered evidence through cross-examination of 

Breeden's witness regarding the lease payments received by 

Breeden before and after the removal of the crossing and an 

appraisal obtained by Breeden estimating a diminution in value 

 

4

 If Norfolk Southern believed that Breeden's action in 

leasing the property without placing restrictions on the use of 

the crossing increased the burden originally contemplated by the 

parties under the Crossing Agreement, its remedy was to seek 

equitable relief against Breeden, not to remove the crossing, 

thereby terminating the rights of all landowners that were 

parties to or successors under the agreement. 
9

of $7,500 resulting from the removal of the crossing, the 

circuit court disallowed the evidence. 

 When Breeden began to introduce evidence relevant to 

whether it had acquiesced in the removal of the crossing or 

whether it was guilty of laches in failing to object to the 

removal of the crossing, Norfolk Southern conceded it was not 

contesting those issues. In fact, Norfolk Southern did not 

bring witnesses to the hearing. Norfolk Southern argued it was 

defending the request for an injunction on the grounds that 

Breeden had not suffered any injury, that any harm was 

outweighed by the burden to Norfolk Southern if the crossing is 

installed, and that Breeden had an adequate remedy at law. In 

light of those concessions, the circuit court determined no 

further evidence from Breeden was necessary. The circuit court 

ruled that the Crossing Agreement was specifically enforceable 

and that it would order Norfolk Southern to reinstall the 

crossing.5

 We have previously held that an injunction is the 

appropriate remedy for enforcement of a real property right. 

See, e.g., Snead, 279 Va. at 608, 616, 692 S.E.2d at 212, 216; 

 

5

 Acting on Breeden's representation that it would no longer 

seek damages on its claim for breach of contract, the circuit 

court ordered the removal of the scheduled trial from its 

docket. 
10

Pizzarelle v. Dempsey, 259 Va. 521, 532, 526 S.E.2d 260, 266 

(2000); Sonoma Development, Inc. v. Miller, 258 Va. 163, 169-70, 

515 S.E.2d 577, 580-81 (1999); Boerner v. McCallister, 197 Va. 

169, 172, 89 S.E.2d 23, 25 (1955). This is so because the 

violation of a real property interest is deemed "'irreparable 

and the owner protected in the enjoyment of his property whether 

such be sentimental or pecuniary.'" Levisa Coal Co. v. 

Consolidation Coal Co., 276 Va. 44, 62, 662 S.E.2d 44, 54 (2008) 

(quoting Boerner, 197 Va. at 172, 89 S.E.2d at 25)).6 In such a 

case, we have noted "that the question was not one of 

reasonableness, nor was it a case in which the equities should 

be balanced." Snead, 279 Va. at 615, 692 S.E.2d at 216. 

 We have also recognized that a party seeking to enforce a 

real covenant is generally entitled to the equitable remedy 

requested upon showing the validity of the covenant and its 

breach. Perel v. Brannan, 267 Va. 691, 700, 594 S.E.2d 899, 904 

(2004). See, e.g., Sonoma Development, 258 Va. at 169-70, 515 

S.E.2d at 580-81 (evidence with regard to an appropriate remedy 

in equity is unnecessary where a restrictive covenant was valid 

and the breaching party had notice of the covenant); Marks v. 

 

6

 In recognizing that an injury to a real property right is 

deemed irreparable, we contrasted injunctions sought to enforce 

a contract right concerning personal property from injunctions 

sought to enforce a real property right. Levisa Coal, 276 Va. 

at 61-62, 662 S.E.2d at 53-54. 
11

Wingfield, 229 Va. 573, 577, 331 S.E.2d 463, 465 (1985) (trial 

court erred in denying injunction to enforce restrictive 

covenant where restrictions were reasonable and enforceable); 

Spilling v. Hutcheson, 111 Va. 179, 183, 68 S.E. 250, 252 (1910) 

("The injunction in this case is granted almost as a matter of 

course upon a breach of the covenant. The amount of damages, 

and even the fact that the plaintiff has sustained any pecuniary 

damages, are wholly immaterial."). 

 A defendant may avoid the imposition of the equitable 

remedy sought for violation of a real covenant "if such a remedy 

would create a hardship or injustice that is out of proportion 

to the relief sought, if performance by the defendant would be 

impossible, or if the enforcement of the decree would be 

unusually difficult for the court." Perel, 267 Va. at 700, 594 

S.E.2d at 904-05 (footnotes omitted). "However, on the 

questions of hardship, injustice, or impossibility, the 

defendant bears the burden of providing the elements of the 

defense." Id. at 700, 594 S.E.2d at 905. Nevertheless, "[t]he 

doctrine of 'balancing of equities' must be viewed in light of 

our long-standing pronouncement that a private landowner is to 

be protected for injuries he may sustain 'even though inflicted 

by forces which constitute factors in our material development 

and growth.'" Blue Ridge Poultry & Egg Co. v. Clark, 211 Va. 

139, 144, 176 S.E.2d 323, 327 (1970) (quoting Townsend v. 
12

Norfolk Ry. & Light Co., 105 Va. 22, 49, 52 S.E. 970, 979 

(1906)). 

Based on the rulings of the circuit court in the 

indemnification litigation, Breeden was the successor in 

interest to the Crossing Agreement, a valid covenant running 

with the land, under which Norfolk Southern was obligated to 

construct and maintain the private grade crossing. It is 

undisputed that Norfolk Southern had notice of the covenant and 

removed the crossing to which Breeden was granted "the right and 

privilege." Therefore, Breeden was entitled to an injunction 

requiring the replacement of the crossing unless Norfolk 

Southern proved "such a remedy would create a hardship or 

injustice that is out of proportion to the relief sought, if 

performance by the defendant would be impossible, or if the 

enforcement of the decree would be unusually difficult for the 

court." Perel, 267 Va. at 700, 594 S.E.2d at 904-05 (footnotes 

omitted). 

Breeden presented evidence regarding its use of the 

crossing, including its need to access the crossing during 

periods of high water. Norfolk Southern did not present its own 

witnesses at the hearing but argued only that Breeden was not 

actually injured, that any injury was outweighed by the burden 

to Norfolk Southern, and that Breeden had an adequate remedy at 
13

law. The only evidence Norfolk Southern sought to introduce, 

which was through cross-examination of Breeden's witness, was 

the evidence regarding diminution in value and Breeden's lease 

payments. However, Breeden was not required to prove damages or 

an inadequate remedy at law. See Sonoma Development, 258 Va. at 

169-70, 515 S.E.2d at 580-81; Spilling v. Hutcheson, 111 Va. at 

183, 68 S.E. at 252; see also Springer v. Gaddy, 172 Va. 533, 

542, 2 S.E.2d 355, 358-59 (1939) ("An owner whose land is 

subject to equitable restrictions cannot violate them, and when 

suit is brought against him relieve his property from the 

restriction by the payment of damages.") (internal quotation 

marks omitted). Furthermore, Norfolk Southern did not seek to 

present evidence as to the hardship or burden that would be 

imposed by enforcement of the covenant.7

 Accordingly, the 

 

7

 The decision in Perel does not support the view that this 

case should be remanded for the circuit court to take evidence 

regarding the appropriateness of an injunction. The circuit 

court in Perel denied the request for an injunction on the 

ground that the retaining wall did not violate the covenants. 

We reversed, holding that the retaining wall did violate the 

covenants and remanded the case to permit the homeowners to 

prove that removal of the retaining wall would create a 

hardship. Perel, 267 Va. at 702, 594 S.E.2d at 905. In this 

case, Breeden proved the breach of a valid real covenant, and 

Norfolk Southern did not seek to present any evidence of 

hardship in the circuit court. Similarly, in Levisa Coal, which 

did not involve a real covenant, the circuit court denied 

injunctive relief on the ground that Levisa Coal did not prove a 

violation of a real property interest. Holding that the circuit 

erred in its ruling, we remanded the case for the circuit court 
14

circuit court did not abuse its discretion in ordering the 

requested injunctive relief.8

C. Right to a Jury 

 Norfolk Southern contends that the circuit court erred in 

hearing Breeden's request for a permanent injunction prior to 

the trial scheduled for Breeden's breach of contract claim 

because it deprived Norfolk Southern of its right to a jury. 

 When the circuit court scheduled the hearing on Breeden's 

request for an injunction, Norfolk Southern made an objection to 

the circuit court's decision to proceed with the injunction 

hearing prior to the scheduled trial, which the circuit court 

overruled. Thereafter, Norfolk Southern filed a motion to 

reconsider on the grounds that the court's action violated Rule 

 

to consider Levisa Coal's request for an injunction. Levisa 

Coal, 276 Va. at 59, 662 S.E.2d at 52. 

8

 Norfolk Southern also argues that because the covenant was 

affirmative rather than negative, the principles this Court has 

applied to restrictive covenants are inapplicable. We have 

recognized that affirmative covenants respecting real property 

interests will run with the land. See Chesapeake & Ohio Ry. Co. 

v. Willis, 200 Va. 299, 303-04, 105 S.E.2d 833, 837 (1958) 

(covenant to build fence was covenant running with the land and 

was enforceable unless broken by predecessors in title). We 

have not previously made any distinction between the 

enforceability of affirmative covenants and negative covenants 

and see no reason to do so here. See, e.g., Recco v. Chesapeake 

& Ohio Ry. Co., 32 S.E.2d 449, 453-54 (W.Va. 1944) (landowners 

entitled to seek specific performance compelling railroad to 

rebuild crossing pursuant to covenant in 1870 deed, and court 

will not balance the equities where a vested property right will 

be destroyed by violation of covenants). 
15

3:22(e) and deprived Norfolk Southern of its right to a jury 

trial on issues of fact common to the claims for injunctive 

relief and damages. The circuit court denied the motion to 

reconsider and proceeded with a hearing on Breeden's request for 

a permanent injunction. 

 It is well-established that a party has no right to a jury 

trial on a claim for equitable relief. "[W]hen a party seeks 

injunctive relief, he must sue in equity. In equity, a litigant 

has no constitutional right to trial by jury, and, absent a plea 

in equity, no statutory right." Wright v. Castles, 232 Va. 218, 

222, 349 S.E.2d 125, 128 (1986) (citations omitted); see also

Code § 8.01-336(D). Norfolk Southern did not file a plea in 

equity. Therefore, Norfolk Southern did not have a 

constitutional or statutory right to a jury on Breeden's claim 

for injunctive relief. 

 While acknowledging that it had no right to a jury on the 

claim for injunctive relief, Norfolk Southern contends that the 

circuit court violated Rule 3:22(e) because the circuit court 

resolved factual disputes that were at issue in the breach of 

contract claim. Rule 3:22(e) provides: 

In any case when there are both jury and 

non-jury issues to be tried, the court shall 

adopt trial procedures and a sequence of 

proceedings to assure that all issues 

properly heard by the jury are decided by 

it, and applicable factual determinations by 
16

the jury shall be used by the judge in 

resolving the non-jury issues in the case. 

Under the plain language of the Rule, it only applies when there 

are jury issues to be tried. Although Breeden's breach of 

contract claim required it to prove damages resulting from the 

breach, Breeden was not required to prove monetary damages or 

quantify the harm resulting from the removal of the crossing to 

seek an injunction. See Sonoma Development, 258 Va. at 169-70, 

515 S.E.2d at 580-81; Spilling, 111 Va. at 183, 68 S.E. at 252. 

Therefore, there were no factual determinations before the 

circuit court at the injunction hearing that were common to the 

breach of contract claim. Accordingly, Rule 3:22(e) was not 

applicable. 

D. Breeden's Motion for Attorney's Fees as Sanctions 

 Following the injunction hearing, Breeden moved for 

reimbursement of attorney's fees pursuant to the sanction 

provisions of Code § 8.01-271.1 on the grounds that Norfolk 

Southern asserted there were genuine issues of material facts in 

dispute in opposition to the motion for summary judgment but 

failed to produce any evidence at the hearing on the injunction 

to support its defenses to the injunction, thus rendering the 

injunction hearing unnecessary. Finding no violation of Code § 

8.01-271.1, the circuit court denied Breeden's motion. Breeden 

assigns cross-error to this ruling and contends the circuit 
17

court abused its discretion in denying its motion for attorney's 

fees. 

 In response to Breeden's motion for summary judgment, 

Norfolk Southern filed an opposition in which it asserted that 

Breeden must prove damages as an essential element of its case, 

and irreparable harm and lack of an adequate remedy at law for 

an injunction, all of which were in dispute. Additionally, 

Norfolk Southern asserted that there were affirmative defenses 

pled by it, including the doctrine of first material breach, 

estoppel, laches, and unclean hands on which issues of fact 

remained. Although Norfolk Southern did not contest laches and 

estoppel at the hearing, it insisted that the circuit court 

should determine whether Breeden proved actual injury and lack 

of an adequate remedy at law. Norfolk Southern also argued the 

circuit court should weigh the burden to Norfolk Southern if 

injunctive relief was awarded against the harm to Breeden if it 

was not awarded. 

 Code § 8.01-271.1 provides, in pertinent part, that 

signature of an attorney on any pleading, written motion, or 

other writing constitutes a certificate that "to the best of his 

knowledge, information and belief, formed after reasonable 

inquiry, it is well grounded in fact and is warranted by 

existing law or a good faith argument for the extension, 
18

modification, or reversal of existing law" and that "it is not 

interposed for any improper purpose, such as to harass or to 

cause unnecessary delay or needless increase in the cost of 

litigation." The circuit court's decision to deny the motion 

for sanctions will only be reversed for an abuse of discretion. 

Northern Va. Real Estate v. Martins, 283 Va. 86, 103, 720 S.E.2d 

121, 129 (2012). 

 The circuit court found that "[Norfolk Southern's] 

pleadings, written motions, and other papers were all well 

grounded in fact and warranted by existing law and that they 

were not interposed for any improper purpose." The circuit 

court further found that because Norfolk Southern believed that 

it was improper to bifurcate the injunction hearing and trial on 

damages, it "chose not to call company witnesses because it did 

not want to run the risk of a claim of waiver based on having 

presented evidence outside the scope of [Breeden's] proof." 

Therefore, according to the circuit court, Norfolk Southern's 

"trial strategy" decisions were also "well grounded and not done 

with any improper purpose." 

 We cannot conclude the circuit court abused its discretion. 

Norfolk Southern opposed the motion for summary judgment, among 

other reasons, on the grounds that Breeden was required to prove 

actual damages and an inadequate remedy at law on which it 
19

asserted there were disputed issues of fact. Norfolk Southern 

continues to maintain on appeal that the circuit court erred in 

failing to require proof of actual injury, the lack of an 

adequate remedy at law, and in failing to balance the equities 

in considering the injunction. Although Norfolk Southern chose 

not to call its corporate witnesses and contest the issues of 

laches and estoppel at the injunction hearing and did not 

prevail on its arguments regarding Breeden's burden to prove 

damages, there is no evidence that Norfolk Southern's asserted 

defenses were not well-grounded or interposed for an improper 

purpose. 

III. CONCLUSION 

 For the foregoing reasons, we will affirm the judgment of 

the circuit court. 

Affirmed. 

SENIOR JUSTICE RUSSELL, with whom JUSTICE LEMONS and JUSTICE 

MILLETTE join, dissenting. 

 The following essential facts are undisputed: The 

predecessors in title of the present parties entered into a 

"Crossing Agreement" in 1940 that granted reciprocal benefits 

and imposed reciprocal obligations upon them. The Railroad's 

benefit was the consolidation of two former crossings into one. 

The landowners' benefit was the Railroad's obligation to provide 

a new, unguarded crossing over its right-of-way to the 
20

landowners' property and to maintain it in perpetuity. The 

landowners' reciprocal obligation was to ensure that the 

crossing was a private one that "shall be used solely in their 

own interest and for their own benefit." The landowners also 

agreed to "indemnify and save harmless the [Railroad] from any 

and all claims for damage or injury to [any] person, including 

death, or property, resulting from their use of said grade 

crossing." The landowners also agreed that "the said private 

crossing shall not be converted at their demand or request or 

with their consent into a public crossing." The agreement was 

made binding upon the parties' "heirs, executors, 

administrators, successors and assigns." The agreement was 

recorded among the land records and constitutes a covenant 

running with the land. 

 The present parties both insist upon their benefits under 

the 1940 agreement, but both have refused to honor the 

reciprocal obligations it imposes upon them. First, the present 

owner leased a part of the property to a residential tenant 

without imposing any limitation on the tenant's right to use the 

crossing. The tenant was injured while using the crossing and 

sued the Railroad. The Railroad settled the case with the 

tenant and claimed indemnity from the owner under the 1940 

agreement. The circuit court held that the indemnity agreement 

was inapplicable because the tenant had an independent right to 
21

use the crossing and that his use at the time of the accident 

was not as agent or for the benefit of the owner. The Railroad, 

taking the position that the owner was now accepting all of its 

benefits under the 1940 agreement while successfully evading all 

its reciprocal obligations, closed the crossing. Such was the 

posture of the case when it came before the circuit court on the 

owner's claim for a permanent injunction. 

 Permanent injunctions and decrees of specific performance 

are the most drastic remedies courts of equity are empowered to 

award, but they are nevertheless equitable remedies. They are 

to be imposed only where, after careful consideration of the 

facts and circumstances of each particular case, the chancellor 

determines that such remedy is necessary to attain the most 

equitable result. 

 Here, the circuit court refused to hear evidence of the 

facts and circumstances relating to the propriety of an 

injunction, apparently because the court regarded injunctive 

relief automatically justified by the owner's showing that the 

Railroad had closed the crossing. The court may have relied on 

statements we made in an earlier case involving breach of a 

restrictive covenant, where we said that in such a case an 

injunction is granted "almost as a matter of course" and that 

"[t]he amount of damages, and even the fact that the plaintiff 

ha[d] sustained any pecuniary damages, are wholly immaterial." 
22

Spilling v. Hutcheson, 111 Va. 179, 183, 68 S.E. 250, 252 

(1910). 

 In a recent case involving a retaining wall erected in 

breach of a restrictive covenant, however, we departed from the 

sweeping language in Spilling. In Perel v. Brannan, 267 Va. 

694, 594 S.E.2d 899 (2004), we said: 

While the retaining wall is clearly in 

violation of the covenants, [the plaintiff] is 

not automatically entitled to have the 

retaining wall removed. When parties have a 

dispute over an alleged violation of a 

restrictive covenant, the plaintiff, or 

covenantee, may file suit in the court for 

equitable enforcement of the restrictive 

covenant. A restrictive covenant may be 

enforced by injunctive relief or through 

specific performance. The party seeking 

enforcement . . . bears the burden of proving 

the validity and meaning of the covenant [and 

that it] has been violated by the acts of the 

defendant. 

. . . . 

A defendant may avoid imposition of the remedy 

requested if such a remedy would create a 

hardship or injustice that is out of 

proportion to the relief sought, if 

performance by the defendant would be 

impossible, or if the enforcement of the 

decree would be unusually difficult for the 

court. However, on the questions of hardship, 

injustice, or impossibility, the defendant 

bears the burden of proving the elements of 

the defense . . . . [I]t is for the defendant 

to show by way of defense that it is no longer 

able to perform the covenant consistently with 

its duty to the public in general, or that 

performance thereof will be burdensome and 

oppressive or otherwise inequitable. 
23

Id. at 699-701, 594 S.E.2d at 904-05 (citations, footnotes, and 

internal quotation marks omitted) (emphasis added). We 

concluded by remanding the case to the circuit court with 

specific instructions to hear evidence concerning the remedy to 

be ordered. Id. at 702, 594 S.E.2d at 905. 

 After Perel, we considered a case that, like the present 

case, involved a continuing trespass. In Levisa Coal Co. v. 

Consolidation Coal Co., 276 Va. 44, 662 S.E.2d 44 (2008), we 

said: 

Under traditional equitable principles, a 

chancellor may enjoin a continuing trespass. 

However, even in a case involving a continuing 

trespass the guiding principle which remains 

constant is that the granting of an injunction 

is an extraordinary remedy and rests on the 

sound judicial discretion to be exercised upon 

consideration of the nature and circumstances of 

a particular case. Thus, in a case of a 

continuing trespass, such as the present case, 

we have stated that if "the loss entailed upon 

[the trespasser] would be excessively out of 

proportion to the injury suffered by [the 

owner], or a serious detriment to the public, a 

court of equity might very properly deny the 

injunction and leave the parties to settle their 

differences in a court of law."*

 

*

 The present case involves both of the last two questions. 

Because of the result in the indemnity action, the Railroad will 

be exposed in the future to liability for injuries sustained by 

any tenant or tenant's invitee using the crossing without any 

protection from the indemnity for which its predecessor 

bargained in 1940. Judges are not prescient and the results of 

future changes, such as population growth and density, changes 

in land use and the need for additional rail capacity and 

traffic cannot be foreseen. If, for instance, a tenant should 
24

We have also observed that unless a party is 

entitled to an injunction pursuant to a statute, 

a party must establish the "traditional 

prerequisites, i.e., irreparable harm and lack 

of an adequate remedy at law" before a request 

for injunctive relief will be sustained. 

276 Va. at 61, 662 S.E.2d at 53 (citations and some quotation 

marks omitted). 

In Levisa Coal, as in Perel, we remanded the case to the circuit 

court with specific direction to grant the parties the 

opportunity to present evidence on the question whether 

injunctive relief would be appropriate under the facts and 

circumstances of the case. Id. at 63, 662 S.E.2d at 54. 

 Here, the owner's complaint included counts for damages at 

law as well as equitable relief. The case was set for a two-day 

jury trial on all issues to begin on March 7, 2013. After 

denying the owner's motion for summary judgment, the court, over 

the Railroad's objection, granted a motion by the owner to set 

the case for trial on the issue of injunctive relief only, to 

begin on February 27, 2013, eight days before the jury trial. 

 At that proceeding, the court refused to afford the parties 

an opportunity to present evidence of the facts and 

circumstances of the case, ruling, before the owner's evidence 

 

decide to hold a political rally on the property, or if the 

present residence were succeeded by apartment or condominium 

buildings, the Railroad's exposure to liability claims would 

increase exponentially and the crossing would become a "serious 

detriment to the public." 
25

was completed, that any further evidence offered by either party 

would be immaterial. The court essentially took the view that 

the undisputed fact that the Railroad had closed the crossing 

automatically required entry of a permanent injunction. 

 In my view, the circuit court erred in disregarding the 

traditional equitable principles made specific in Perel and 

Levisa Coal. The parties should have been afforded an 

opportunity to present evidence of all the relevant 

circumstances that might inform the chancellor's discretion in 

determining the appropriate remedy. I would make the same 

disposition we made in those cases, reverse the decree and 

remand the case to the circuit court with direction to afford 

the parties a full opportunity to present evidence. 

 On remand, if any material issues of fact are disputed, the 

parties would be entitled to jury trial of those issues pursuant 

to Rule 3:22(e). If the court should decide to leave the 

parties to their legal remedies, their constitutional right to 

jury trial would, of course, be unimpaired. 

 For the foregoing reasons, I respectfully dissent.