Present: All the Justices 

SHENANDOAH ACRES, INCORPORATED 

v. Record No. 972263 

D.M. CONNER, INCORPORATED 

 OPINION BY 

JUSTICE LAWRENCE L. KOONTZ, JR. 

September 18, 1998 

ACRES SAND & STONE, L.L.C. 

v. Record No. 972266 

D.M. CONNER, INCORPORATED 

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY 

Thomas H. Wood, Judge 

In these appeals we consider whether the trial court properly 

determined that the owner of a non-exclusive easement may limit 

access to the easement by the servient landowner and its lessee. 

Background

Since 1957, D.M. Conner, Incorporated (Conner) and its 

predecessors have held a mineral interest in the northeastern corner 

of property owned by Shenandoah Acres, Incorporated (Shenandoah) for 

the purpose of mining sand and gravel. In June 1982, by deed of 

exchange, Shenandoah granted to Conner’s principal shareholder and 

his wife a 50-foot easement from State Route 660 running east along 

the northern edge of Shenandoah’s property to an adjacent parcel 

owned by the couple in exchange for the release of an existing 
right-of-way over Shenandoah’s property. This easement was 

subsequently transferred to Conner by deed dated March 25, 1987. 

Conner constructed and maintains a 30-foot wide, surfacetreated road within the easement connecting Conner’s mining 

operations on Shenandoah’s property with State Route 660. These 

improvements include a locked gate at the point where the road meets 

the state highway. Conner’s sole current use of its easement is for 

access from the mining operation on Shenandoah’s property to the 

highway over this road. 

In November 1996, Shenandoah decided to terminate its mining 

agreement with Conner and entered into a lease agreement with Acres 

Sand & Stone, L.L.C. (Acres Sand), for use of a portion of 

Shenandoah’s property. The purpose of this lease is to allow Acres 

Sand to conduct mining operations within the leasehold. The 

leasehold area covers approximately 144 acres of Shenandoah’s 

property, including that portion currently being mined by Conner.* 

The lease further provides that Acres Sand will have use of the same 

 

*

At the time Shenandoah and Acres Sand entered into this lease, 

the nature and extent of Conner’s interest in Shenandoah’s property 

and its right to continue its mining operation there were in dispute 

and were already the subject of other litigation. Pending the 

resolution of that litigation, Acres Sand is limited by its special 

use permit to conduct mining operations only on the undisputed 

portion of its leasehold. Because Conner’s interest in Shenandoah’s 

property and its right to continue mining operations there were not 

issues in the suits from which these appeals arise, we express no 

opinion on these issues or the effect of the resolution of that 

litigation on the issues reviewed in this opinion. 

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right-of-way between State Route 660 and the leased premises 

previously granted to Conner. Although Acres Sand had not begun 

mining operations at the time of trial, it was surveying a portion 

of the leasehold and making initial preparations to open a mine in 

an area nearer to Route 660 and west of Conner’s mining operations. 

Acres Sand plans to build a spur road to connect its mine to the 

road on the right-of-way. 

In February 1997, Shenandoah requested that Conner either 

relocate its gate to a point nearer Conner’s mining operations, or 

permit Shenandoah to have joint control over the gate in its current 

location. Conner refused these requests. On April 4, 1997, 

Shenandoah constructed a “loop” from the highway to the road to 

bypass Conner’s gate. Shenandoah secured the loop with a second 

locked gate. That same day, Conner parked a road grader on the 

easement road blocking the bypass. 

On April 7, 1997, Conner filed a bill of complaint seeking a 

temporary injunction against Shenandoah and Acres Sand to prohibit 

their interfering with Conner’s use of the easement, tampering with 

the existing form of the right-of-way, and disturbing the existing 

security for Conner’s mining operations until Conner’s property 

rights in the disputed portion of the leasehold could be determined. 

On April 9, 1997, Shenandoah and Acres Sand jointly filed a separate 

bill of complaint seeking an injunction prohibiting Conner from 

interfering with their use of the easement area. 

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Although not formally consolidated by the trial court, the two 

suits were considered together in the course of two ore tenus

hearings. At those hearings, the parties offered evidence on the 

current and proposed uses of the easement. Shenandoah indicated 

that its current use of the easement was limited to checking the 

property two or three times a week. Acres Sand offered evidence 

that it planned to begin mining operations within three months, but 

that its current use of the easement involved only survey and site 

preparation work. Once mining operations begin, Acres Sand intends 

to use the easement road to move equipment into its mining area and 

remove gravel and sand in dump trucks. 

Conner offered testimony that continued use of the easement 

road was necessary for its mining operations on Shenandoah’s 

property. Conner also presented evidence regarding the security 

requirements of the mining operations imposed by state regulation, 

and maintained that it was necessary to keep its gate locked during 

non-business hours. In commenting on the evidence, the chancellor 

expressed concern that permitting Shenandoah and Acres Sand 

unlimited access to the easement might compromise the security of 

Conner’s mining operations. 

The trial court subsequently entered identical orders in each 

case in which it found that Conner’s easement was not exclusive, and 

that “[Shenandoah] retained the right to use the easement for any 

purposes which are not inconsistent with the use of the easement by 

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[Conner], and conversely, cannot make any use of the easement which 

is inconsistent with the rights granted to [Conner].” The trial 

court further ordered that Shenandoah and Acres Sand could use the 

easement only during Conner’s “regular business hours.” The orders 

are silent as to Shenandoah’s and Acres Sand’s request for 

injunctive relief. We awarded Shenandoah and Acres Sand these 

appeals. 

Discussion

We begin by noting that the final orders of the trial court 

were based on the easement granted by Shenandoah to Conner’s 

principal shareholder and his wife in the 1982 deed and subsequently 

transferred to Conner in the 1987 deed. We further note that none 

of the parties assigns error to the trial court’s determination that 

the easement is non-exclusive. Where error is not assigned to the 

holding of the trial court, that holding becomes the law of the 

current case and the basis for our decision. Trustees of Asbury 

United Methodist Church v. Taylor & Parrish, Inc., 249 Va. 144, 154, 

452 S.E.2d 847, 852 (1995). Accordingly, we will limit our review 

to the dispositive issue of whether the specific facts of this case 

would warrant permitting the owner of a non-exclusive easement to 

restrict the access of the servient landowner and its lessee. 

Under well-settled principles, a conveyance of an easement that 

is non-exclusive does not strip the servient landowner of its right 

to all use of the land. Walton v. Capital Land, Inc., 252 Va. 324, 

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326, 477 S.E.2d 499, 501 (1996). The servient landowner retains the 

right to use its property in any manner that does not unreasonably 

interfere with the lawful dominant use. Id. The servient 

landowner’s right to reasonably use the land includes the right to 

grant to others additional easements to use the same land so long as 

the additional uses are not unreasonably burdensome or inconsistent 

with the existing dominant uses of the easement. Preshlock v. 

Brenner, 234 Va. 407, 410, 362 S.E.2d 696, 698 (1987). 

The party alleging such an unreasonably burdensome or 

inconsistent use has the burden of proving this allegation. Hayes 

v. Aquia Marina, Inc., 243 Va. 255, 259, 414 S.E.2d 820, 822 (1992). 

Any use of a non-exclusive easement may be protected by an 

injunction prohibiting an interfering use when the harm from the 

interfering use is irreparable and cannot be adequately addressed in 

damages. Black & White Cars, Inc. v. Groome Transp., Inc., 247 Va. 

426, 431-32, 442 S.E.2d 391, 395 (1994). However, the party seeking 

relief must show that the alleged harm is imminent, and not merely 

speculative or potential. See Ridgwell v. Brasco Bay Corp., 254 Va. 

458, 462-63, 493 S.E.2d 123, 125 (1997). 

Here, Conner failed to show any significant actual conflicting 

use of the easement by Shenandoah and Acres Sand. Furthermore, any 

determination regarding the reasonableness of Shenandoah’s and Acres 

Sand’s future use of the easement, when such use is not imminent, is 

necessarily speculative. Similarly, Conner’s concerns over 

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potential criminal acts or liability arising from trespassers are, 

at best, speculative. Accordingly, we hold that Conner did not meet 

its burden to show that any actual or imminent use by Shenandoah or 

Acres Sand would irreparably harm or unreasonably interfere with 

Conner’s use of the road within its easement. 

The trial court, having determined that Conner’s easement is 

non-exclusive, may not craft an order creating a de facto exclusive 

easement. Allowing the servient landowner’s use of an easement to 

be limited by Conner’s flexible and arbitrary choice, such as its 

hours of operation, creates just such a de facto exclusive easement 

and is improper. Rather, any limitation on subsequent uses of the 

easement should be imposed narrowly and in such a manner as to 

prohibit only actual material interference with the existing 

dominant uses of the easement. See generally, Hayes, 243 Va. at 

258, 414 S.E.2d at 822. 

For these reasons, we will reverse the trial court’s judgment 

in the suit initiated by Conner limiting Shenandoah and Acres Sand 

to the use of the easement only during Conner’s hours of operation 

and enter final judgment for Shenandoah and Acres Sand. Because the 

trial court failed to address Shenandoah’s and Acres Sand’s request 

for an injunction prohibiting Conner’s interference with their use 

of the easement, we will reverse the judgment in that suit and 

remand the case for further proceedings consistent with this 

opinion. 

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 Record Nos. 972263 and 972266 — Reversed, remanded, 

 and final judgment. 

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