Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and 

Agee,∗ JJ., and Carrico, S.J. 

NEXTEL WIP LEASE CORPORATION 

v. Record No. 071653 

ROSCOE NEAL SAUNDERS, 

EXECUTOR OF THE 

ESTATE OF CORA BELL MEADOR 

SAUNDERS, ET AL. 

 OPINION BY 

SENIOR JUSTICE HARRY L. CARRICO 

 September 12, 2008 

TOWERCO LLC 

v. Record No. 071655 

ROSCOE NEAL SAUNDERS, 

EXECUTOR OF THE 

ESTATE OF CORA BELL MEADOR 

SAUNDERS, ET AL. 

FROM THE CIRUIT COURT OF BEDFORD COUNTY 

James W. Updike, Jr., Judge 

 The issue in these appeals is whether the lease of a parcel 

of land atop a mountain in Bedford County permits the erection 

of one telecommunications tower or two such towers. In a 

declaratory judgment proceeding, the circuit court held that the 

lease permitted only one tower. We agree with the circuit court 

and will affirm its judgment. 

 ∗

 Justice Agee participated in the hearing and decision of 

this case prior to his retirement from the Court on June 30, 

2008. 
 The parcel of land, measuring approximately 50’ by 50’, is 

part of a larger tract owned by Roscoe Neal Saunders and Ralph 

Edward Saunders, Executors of the Estate of Cora Bell Meador 

Saunders (the Saunders). In an Option and Ground Lease 

Agreement dated July 13, 2004 (the lease agreement), the 

Saunders, as lessors, leased the parcel to Nextel WIP Lease 

Corporation (Nextel), as lessee, for a term of five years, with 

five successive five-year options to renew for a monthly rental 

of $670.00. 

 Nextel constructed an 80’ high telecommunications tower on 

the property and then on June 30, 2005, assigned the lease to 

TowerCo, LLC (TowerCo), as the lease agreement permitted. In 

March 2006, an application was filed with the Bedford County 

Department of Planning for an amended special use permit to 

allow TowerCo to increase the height of the 80’ tower to 100 

feet. Another application was filed for a special use permit to 

allow the construction of a second 80’ tower on the leased 

premises. On April 24, 2006, the County’s Board of Supervisors 

denied the application to increase the height of the existing 

tower because a zoning regulation forbade any height above 80 

feet. However, the Board approved the construction of a second 

80’ tower on the leased premises. 

 Construction was begun on the new tower, and on September 

12, 2006, Nextel and TowerCo were confronted with a motion for 

2
declaratory judgment filed by the Saunders in the circuit court. 

The motion alleged that the “lease provided for the construction 

of one communication tower on the lease[d] premises” but “the 

lessee and its assignees have commenced construction of a second 

tower on the lease[d] premises contrary to the provisions of the 

lease agreement and has [sic] refused to forego construction 

upon confrontation by the plaintiffs.” The Saunders prayed that 

the circuit court “determine the number of towers permitted 

pursuant to the aforementioned Lease Agreement dated July 13, 

2004.” 

 Nextel and TowerCo filed answers to the motion for 

declaratory judgment and also filed motions for summary 

judgment. Nextel alleged in its motion that it was entitled to 

summary judgment because there were no material facts in dispute 

and “the Lease at issue is unambiguous, and it clearly allows 

Nextel and its assignees to build a second telecommunications 

tower on the Premises.” In its motion, TowerCo alleged that it 

was entitled to summary judgment “because the only issue to be 

resolved is a question of law – interpretation of three clear 

and unambiguous provisions of the Lease Agreement” expressing 

the parties’ intent “that more than one tower may be constructed 

on the Leased Premises.” 

 The three paragraphs referenced by TowerCo provide in 

pertinent part as follows: 

3
 10. Use. The premises may be used by Lessee for the 

transmission and receipt of wireless communication signals 

in any and all frequencies and the construction and 

maintenance of towers, antennas, or buildings, and related 

facilities and activities (“Intended Use”). Lessor agrees 

to cooperate with Lessee in obtaining, at Lessee’s expense, 

all licenses and permits required for Lessee’s use of the 

Premises (the “Governmental Approvals”). Lessee may 

construct additional improvements, demolish and reconstruct 

improvements, or restore replace and reconfigure 

improvements at any time during the Initial Term or any 

Renewal Term of this Lease. [Emphasis added.] 

 14. Lessor’s Representations and Warranties. Lessor 

represents and warrants that (i) Lessee’s Intended Use of 

the Premises as a site for the transmission and receipt of 

wireless communication signals; for the construction and 

maintenance of towers, antennas or buildings; and related 

facilities is not prohibited by any covenants, 

restrictions, reciprocal easements, servitudes, subdivision 

rules or regulations. [Emphasis added.] 

 17. Improvements; Utilities; Access. (a) Lessee 

shall have the right, at Lessee’s sole cost and expense, to 

erect and maintain on the Premises improvements, personal 

property and facilities, including without limitation, one 

(1) tower, a structural tower base, radio transmitting and 

receiving antennas, communications equipment, an equipment 

cabinet or shelter and related facilities. [Emphasis 

added.] 

 The circuit court heard oral argument on the motions for 

summary judgment and denied them, holding that the lease 

agreement was ambiguous and that parol evidence would be 

admissible to determine the parties’ intent when the lease was 

negotiated. At the conclusion of an ore tenus hearing held for 

the taking of parol evidence, the circuit court ruled in its 

final order that “said Lease Agreement permits the construction 

of one communication tower, and only one communication tower, on 

4
the leased premises.” We awarded Nextel and TowerCo each an 

appeal. 

 We first must clarify the record. During oral argument 

before this Court, counsel for TowerCo made an argument based 

upon our decision in Scott v. Walker, 274 Va. 209, 645 S.E.2d 

278 (2007), decided after the present case was decided in the 

circuit court. There, we held that a restrictive covenant 

providing that no lot in a subdivision “shall be used except for 

residential purposes” was ambiguous and did not prevent the 

lot’s owners from leasing their single-family dwelling by the 

day or by the week. We stated as follows: 

 It is . . . the general rule that while courts of 

equity will enforce restrictive covenants where the 

intention of the parties is clear and the restrictions are 

reasonable, they are not favored, and the burden is on him 

who would enforce such covenants to establish that the 

activity objected to is within their terms. They are to be 

construed most strictly against the grantor and substantial 

doubt or ambiguity is to be resolved in favor of the free 

use of property and against restrictions. 

274 Va. at 212-13, 645 S.E.2d at 280 (quoting Schwarzschild v. 

Welborne, 186 Va. 1052, 1058, 45 S.E.2d 152, 155 (1947)). 

 We also said there is an exception, as follows: 

[I]f it is apparent from a reading of the whole instrument 

that the restrictions carry a certain meaning by definite 

and necessary implication, then the thing denied may be 

said to be clearly forbidden, as if the language had been 

in positive terms of express inhibition. 

5
Scott, 274 Va. at 213, 645 S.E.2d at 280-81 (quoting Bauer v. 

Harn, 223 Va. 31, 39, 286 S.E.2d 192, 196 (1982) (internal 

quotation marks omitted)). 

 In oral argument before us, TowerCo claimed that the 

circuit court held that paragraph 17(a) of the lease agreement, 

containing the “one (1) tower” language, was ambiguous. 

Therefore, counsel argued, the circuit court should have 

construed the paragraph in favor of the free use of the property 

and against any restriction as a matter of law, thus barring the 

court from admitting parol evidence or drawing necessary 

implications. When asked whether this argument had been made in 

the circuit court, counsel for TowerCo answered affirmatively 

and named three places in the record where the argument would 

appear. We have yet to find any argument based upon a purported 

holding by the circuit court that paragraph 17(a) was ambiguous. 

We will not, therefore, consider TowerCo’s argument. Rule 5:25. 

 However, while the circuit court did not hold paragraph 

17(a) ambiguous, it did, as noted above, hold the lease 

agreement ambiguous, and that ambiguity alone will serve as the 

focus of our analysis. Whether contractual provisions are 

ambiguous is a question of law and not of fact, and we do not on 

appeal accord the circuit court’s resolution any deference since 

we are afforded the same opportunity to consider the provisions. 

Video Zone, Inc. v. KF&F Properties, L.C., 267 Va. 621, 625, 594 

6
S.E.2d 921, 923 (2004). Thus, we conduct a de novo review. 

Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624, 631, 

561 S.E.2d 663, 667 (2002). 

 Contractual provisions are ambiguous if they may be 

understood in more than one way or if they may be construed 

to refer to two or more things at the same time. Berry v. 

Klinger, 225 Va. 201, 207, 300 S.E.2d 792, 796 (1983). The 

ambiguity, if it exists, must appear on the face of the 

instrument itself. Salzi v. Virginia Farm Bureau Mut. Ins. 

Co., 263 Va. 52, 55, 556 S.E.2d 758, 760 (2002). In 

determining whether the provisions are ambiguous, we give 

the words employed their usual, ordinary, and popular 

meaning. Pocahontas Mining, L.L.C. v. Jewell Ridge Coal 

Corp., 263 Va. 169, 173, 556 S.E.2d 769, 772 (2002). And 

contractual provisions are not ambiguous merely because the 

parties disagree about their meaning. Dominion Savings 

Bank, FSB v. Costello, 257 Va. 413, 416, 512 S.E.2d 564, 

566 (1999). 

 In addition to Scott v. Walker, Nextel and TowerCo rely 

heavily upon Parrish v. Robertson, 195 Va. 794, 80 S.E.2d 407 

(1954), Oakwood Smokeless Coal Corp. v. Meadows, 184 Va. 168, 34 

S.E.2d 392 (1945), and Stonegap Colliery Co. v. Kelly, 115 Va. 

390, 79 S.E. 341 (1913). In Parrish, we stated as follows: 

7
In . . . an instrument, where uncertainties or ambiguities 

exist, the tenant is favored by law . . . because the 

landlord, having the power of providing expressly in his 

own favor, has neglected to do so; and also upon the 

general principle that every man’s grant is to be taken 

most strongly against himself. Thus, the language of a 

lease which is fairly susceptible of two constructions is 

to be taken most against the lessor. 

195 Va. at 800, 80 S.E.2d at 410-11 (citations and internal 

quotation marks omitted). 

 In Oakwood Smokeless Coal Corp., we stated as follows: 

A lessee of real property is entitled to exclusive use of 

the demised premises for any purpose not prohibited by the 

lease, not amounting to waste or destruction of the subject 

matter. 

. . . . 

It has been stated as a general rule that where doubt 

exists as to the meaning of lease restrictions as to the 

use of property, such provisions are to be resolved in 

favor of the lessee and against the lessor. 

184 Va. at 177, 34 S.E.2d at 396 (citations and internal 

quotation marks omitted). 

 And in Stonegap Colliery Co., a case Nextel says is 

controlling, we stated as follows: 

A covenant that premises shall be used by a lessee for a 

particular specified purpose does not impliedly forbid that 

they may be used for a similar lawful purpose which is not 

injurious to the landlord’s rights, unless such other use 

is expressly forbidden. 

115 Va. at 394, 79 S.E. at 342. 

 Nextel and TowerCo argue that the provisions of the 

lease are not ambiguous. They say that paragraphs 10 and 

14, which permit “towers,” are consistent with and not 

8
contradictory of paragraph 17(a), which permits 

“improvements . . . including without limitation, one (1) 

tower,” indicating, as Nextel puts it, that the lease 

provides the lessee with “the right to construct a minimum 

of one tower on the Premises,” or, as TowerCo puts it, that 

“there simply is no basis to either ascribe ambiguity to 

the provision or construe the provision as limiting use of 

the leased property to the construction of one tower only.” 

 Nextel and TowerCo contend that the word “including,” 

found in paragraph 17(a), implies that the list following 

is not exhaustive and not exclusive. They cite several 

cases for definitions of the word to support their claim 

that the provision “including without limitation, one (1) 

tower” unambiguously permits the erection of more than one 

tower on the leased premises. For example, in Federal 

Election Comm’n v. Mass. Citizens for Life, Inc., 769 F.2d 

13 (1st Cir. 1985), aff’d, 479 U.S. 238 (1986), the United 

States Court of Appeals for the First Circuit stated that 

“the word ‘includes’ is usually a term of enlargement, and 

not of limitation,” and therefore “conveys the conclusion 

that there are other items includable, though not 

specifically enumerated.” Id. at 17. Also cited is 

Black’s Law Dictionary, 777 (8th ed. 2004) (“including 

typically indicates a partial list”). 

9
 We are willing to adopt these definitions of the word 

“including,” but we do not agree that as used in paragraph 

17(a) the word has the effect Nextel and TowerCo claim for 

it. In the context in which it appears, the “including 

without limitation” language means that there could be no 

limitation upon the maintenance, use, or improvement of the 

one tower listed in paragraph 17(a). Nor could there be 

any limitation upon the addition of some different item not 

specifically enumerated that might be necessary or 

convenient to the erection, maintenance, use, or 

improvement of that one tower. 

 Furthermore, the “including without limitation” 

language certainly does not require us to ignore that the 

“usual, ordinary, and popular meaning” of the word “one,” 

appearing in paragraph 17(a), is “one,” not “two.” See

Pocahontas Mining, 263 Va. at 173, 556 S.E.2d at 772. 

However, we cannot view paragraph 17(a) in isolation but 

must consider it along with all the other provisions of the 

lease. Berry, 225 Va. at 208, 300 S.E.2d at 796 (contract 

“must be read as a single document” and its meaning “is to 

be gathered from all its associated parts”). 

 In this approach, paragraphs 10 and 14 come into play. 

Paragraph 17(a) may be understood as permitting only one 

10
tower while paragraphs 10 and 14 may be understood as 

permitting more than one. Thus, there is an unmistakable 

ambiguity in the provisions of the lease agreement. The 

question then becomes how the ambiguity should be resolved. 

 TowerCo argues that “rather than admitting parol 

evidence, the trial court should have considered whether 

‘settled rules of interpretation, applied to the writing as 

a whole, leave a genuine uncertainty as to which [of] two 

or more possible meanings represents the contracting 

parties’ true intent. Thus, if the words chosen by the 

parties have an ordinary, plain meaning, the parol evidence 

inquiry is ended; parol evidence is inadmissible.’ ” 

 The difficulty, however, is that it is impossible to 

ascertain from a consideration of the lease agreement as a 

whole which of the two possible meanings represents the 

true intent of the parties. In the effort to ascertain the 

appropriate meaning, Stonegap Colliery Co. is helpful, but 

not to the position espoused by Nextel and TowerCo. 

 In Stonegap Colliery Co., this Court considered an 

abundance of extrinsic evidence. At issue was a claim by a 

lessor that a lease of land for the purpose of mining coal 

thereon impliedly prohibited the construction of housing 

for miners on a part of the land unusable for mining 

11
purposes. The Court stated that it “appears from the 

testimony of numerous coal operators . . . that it is usual 

and customary for the lessee to have the possession, 

control and use of the surface of the leased premises . . . 

for all purposes,” including “tenement houses.” 115 Va. at 

395-96, 79 S.E. at 343. The Court also stated that “the 

action of the parties is significant as showing their 

intention, and that the construction of the lease now 

contended for by the [lessors] is not warranted.” Id. at 

396, 79 S.E. at 343. The Court then proceeded to recite a 

lengthy list of activities supporting the view that 

construction of the housing for miners was a use intended 

by the parties. Id. at 396-97, 79 S.E. at 343. 

 In Dart Drug Corp. v. Nicholakos, 221 Va. 989, 277 

S.E.2d 155 (1981), we indicated that when a case involves 

the construction of covenants requiring strict construction 

and the provisions are ambiguous, “the intention of the 

parties is the controlling factor” and extrinsic evidence 

is admissible to discern that intention. Id. at 993, 277 

S.E.2d at 157. In a number of other cases involving 

ambiguous contractual provisions, we have approved the use 

of extrinsic evidence to resolve the ambiguity. 

12
 As recently as this past January, in Ott v. L&J 

Holdings, LLC, 275 Va. 182, 654 S.E.2d 902 (2008), we said 

that “[w]hen a document is ambiguous, . . . the court will 

look to parol evidence in order to determine the intent of 

the parties.” Id. at 187, 654 S.E.2d at 905. In Prospect 

Dev. Co. v. Bershader, 258 Va. 75, 515 S.E.2d 291 (1999), 

we said that “‘where the writing on its face is ambiguous, 

. . . parol evidence is always admissible . . . to 

establish the real contract between the parties.’ ” Id. at 

84, 515 S.E.2d at 296. And in Cascades North Venture Ltd. 

P’ship v. PRC Inc., 249 Va. 574, 457 S.E.2d 370 (1995), we 

said that “where the writing on its face is ambiguous, 

. . . the court should receive extrinsic evidence to 

ascertain the intention of the parties.” Id. at 579, 457 

S.E.2d at 373. See also Video Zone, 267 Va. at 626, 594 

S.E.2d at 924; Tuomala v. Regent University, 252 Va. 368, 

374-75, 477 S.E.2d 501, 505 (1996); Georgiades v. Biggs, 

197 Va. 630, 634, 90 S.E.2d 850, 854 (1956); Young v. 

Schriner, 190 Va. 374, 379, 57 S.E.2d 33, 35 (1950); 

Shockey v. Westcott, 189 Va. 381, 389, 53 S.E.2d 17, 20 

(1949); Stewart-Warner Corp. v. Smithey, 163 Va. 476, 487, 

175 S.E. 882, 886 (1934). 

 We hold that the trial court did not err in admitting 

parol evidence. We will now consider that evidence, 

13
viewing it in the light most favorable to the Saunders, who 

prevailed at trial. Tuomala, 252 Va. at 375, 477 S.E.2d at 

505. 

 The record shows that on some unspecified date, a 

representative of Nextel approached the Saunders brothers 

and told them that Nextel was interested in the mountain on 

their property “because of its height for a

telecommunications tower.” (Emphasis added.) Later, over 

a period of several months beginning in the summer or 

autumn of 2003, the Saunders negotiated numerous times with 

as many as five or six different representatives of Nextel. 

 A summary of the matters that the Saunders and 

Nextel’s representatives negotiated is important for it is 

indicative of their intentions at the time they signed the 

lease agreement. Ultimately, Nextel presented the Saunders 

with a draft of a lease agreement, included in the record 

as Exhibit A. Ralph Saunders, with the agreement of his 

brother, Roscoe, made numerous changes in the draft, 

including in paragraph 18(a), which is now paragraph 17(a). 

 Originally, paragraph 18(a) provided in part that 

“Lessee shall have the right, at Lessee’s sole cost and 

expense, to erect and maintain on the Premises 

improvements, personal property and facilities, including 

14
without limitation, towers.” However, the Saunders struck 

through the words “including without limitation,” struck 

the “s” from the end of the word “towers,” and placed ”1-” 

before the new word “tower.” 

 Roscoe Neal Saunders testified that these changes were 

made because “we figured . . . it needed to be with 

limitations,” and where on “the original it says towers 

. . . we changed that over to one because negotiating on 

one tower was all that Nextel was doing at that point . . . 

one tower only . . . [o]ne tower was negotiated.” And, 

significantly, when Roscoe Saunders was asked “how many 

towers did Nextel represent to you was going to be built up 

there,” he replied: “One only.” And he affirmed that Paul 

Tobias, a Nextel representative, “said during the 

negotiations that they were planning on building one tower 

on the property.” 

 On cross-examination, Roscoe Saunders was asked 

whether he had discussed with anyone on behalf of Nextel 

concerning the possibility that Nextel would construct more 

than one tower. He responded that there was not a 

discussion but only a mention by a Nextel representative 

that there “may be a possibility but he didn’t think so” 

and “it was not discussed as a possibility of a contract.” 

15
 Later on, Nextel asked the Saunders to return the 

“including without limitation” language to the lease 

agreement. A Nextel representative explained that the 

return was necessary to allow Nextel to upgrade its 

equipment and “lease part of [its] tower to . . . someone 

else,” and the removal of the language “would have stopped 

[it] from doing so.” Accordingly, Roscoe Saunders 

testified, “we put that back into the contract for that 

reason.” 

 The Saunders then received from Nextel another draft 

of the lease agreement, included in the record as Exhibit 

B. This draft returned the “including without limitation” 

language to the text of what then became paragraph 17(a), 

but, significantly, Nextel included in paragraph 17(a) the 

“one (1) tower” change the Saunders had made in Exhibit A. 

As Ralph Saunders put it in his testimony, “they brought 

[the draft] back with the one wrote in it.” 

 This draft became the final lease agreement without 

further change. This agreement and a memorandum of 

agreement were signed by the Saunders on July 2, 2004. 

Before signing, they saw attached to the memorandum a 

“blueprint drawing of one tower and its equipment.” 

16
 The Saunders learned in notices from Bedford County 

dated March 3, 2006, that TowerCo had filed applications 

for an amended special use permit to increase the height of 

the existing tower from 80’ to 100’ and for a special use 

permit to construct a second tower. Roscoe Saunders 

attended the first hearing on the applications and opposed 

the second tower but did not oppose increasing the height 

of the existing tower. 

 The Saunders’ counsel also sent a letter to TowerCo 

stating that his clients “do not want the obstruction of 

another tower on the skyline or the additional burden on 

the road.” Counsel concluded with the statement that if 

TowerCo considered “another tower a necessity, it may be 

that these issues could be addressed in negotiation.” No 

negotiation ensued, and the Saunders filed their motion for 

declaratory judgment. 

 In their case in chief, Nextel and TowerCo each called 

only one witness. Nextel called Marsha Monique Fruit, its 

project manager for southern Virginia and all of West 

Virginia. However, Nextel does not mention Fruit’s name or 

set forth any of her testimony in either its opening brief 

or its reply brief. The same is true of the one witness 

TowerCo called, its co-location manager, Martha Province, 

17
whose job was to lease space on towers that TowerCo owned. 

We must assume, therefore, that Nextel does not intend to 

rely on Fruit’s testimony on appeal and that TowerCo does 

not intend to rely on Province’s. 

 TowerCo did mention Fruit’s name in one of its briefs 

and advanced an argument based upon her testimony. TowerCo 

quoted Fruit as having testified that “the Lease contained 

nothing to restrict the ‘use of the property at all . . . 

in particular the number of towers’” and that “a one-tower 

restriction would have caused her to flag the Lease as a 

‘non-standard’ Lease.” 

 However, there is a problem with Fruit’s testimony. 

The evidence showed that five or six Nextel representatives 

negotiated with the Saunders, but Fruit admitted that she 

did not “participate directly” in the negotiations with the 

Saunders, and she did not claim that she was present during 

any discussion between them and any other Nextel 

representative. 

 Furthermore, Fruit denied ever having seen Exhibit A, 

the draft of the lease agreement the Saunders returned to 

Nextel “all marked-up,” and she disavowed knowing anything 

about paragraph 18(a), now paragraph 17(a), “where it has 

marked out towers and going into one tower.” Her testimony 

18
was insufficient, therefore, to contradict the testimony of 

the Saunders that they and Nextel’s representatives 

negotiated for only one tower or to show that the change in 

paragraph 17(a) from “towers” to “one (1) tower” did not 

reflect the true intent of the parties. 

 In the end, under cross-examination, all Fruit could 

say was she knew that anything in the lease agreement 

limiting the number of towers would be “non-standard.” But 

this is beside the point. The point is that, standard or 

not, Nextel kept the “one (1) tower” provision in Exhibit 

B, the final version that it prepared of the lease 

agreement and that was signed by the parties. 

 Finally, we must address a contention made by TowerCo 

that “[a]t best, the evidence at trial points only to what 

was in Lessors’ heads contrary to both Nextel’s 

understanding and the language of the Lease, which 

represents what the parties bargained for and agreed to.” 

However, there is the evidence of Nextel’s first contact 

with the Saunders, when its representative told them Nextel 

was interested in their mountain for “a,” meaning one, 

“tower,” there is the evidence that the Saunders and 

Nextel’s representatives negotiated for only one tower, and 

there is the evidence of the representation made by a 

19
20

Nextel representative that only one tower would be built, 

all uncontradicted and all showing what was in the “heads” 

not only of the lessors but of the lessee’s personnel as 

well. It is this evidence, coupled with the evidence of 

Nextel’s retention of the “one (1) tower” language in the 

lease agreement, that truly “represents what the parties 

bargained for and agreed to.” 

 We hold that the circuit court did not err in denying 

the motions for summary judgment and in holding that the 

lease agreement “permits the construction of one 

communication tower, and only one communication tower.” 

Accordingly, we will affirm the circuit court’s judgment. 

Affirmed.