Present: All the Justices 

NORMAN E. WALTON 

v. Record No. 952244 OPINION BY JUSTICE ELIZABETH B. LACY 

 November 1, 1996 

CAPITAL LAND, INC. 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H. C. Taylor, Judge 

 In this appeal, we determine the scope of an easement 

described as an "exclusive easement of right of way." 

 In 1980, Willow Investment Corporation conveyed a tract of 

land east of Overhill Lake in Hanover County to Norman E. Walton. 

 The grantor reserved an easement in gross described as 

 AN EXCLUSIVE EASEMENT OF RIGHT OF WAY FOR PURPOSE OF 

INGRESS AND EGRESS TO STATE ROUTE 33, FIFTY FOOT (50') 

IN WIDTH ALONG THE ENTIRE NORTHERN BOUNDARY OF THE 

PROPERTY HEREIN CONVEYED. 

Capital Land, Inc. (Capital) subsequently acquired an adjacent 

tract consisting of 34.028 acres including Overhill Lake and 

acquired the easement in gross over Walton's land. Capital 

operates a recreational facility on its tract and approximately 

30,000 patrons use the easement each year. 

 In 1990, Capital filed this action against Walton, alleging 

that Walton erected a barricade across the easement, harassed 

those trying to use the easement, and blocked drainage through 

his property in order to flood the easement. Capital sought to 

enjoin Walton from interfering with the free and unfettered 

access of Capital and its patrons to its property. Capital also 

sought a declaratory judgment that it had the exclusive right to 

use the easement, including the ability to exclude Walton's use 
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of the easement.1

 The trial court granted a temporary injunction and referred 

the matter to a commissioner in chancery to determine the rights 

and interests of the parties. The commissioner concluded that 

the easement gave Capital the exclusive right to grant to anyone 

it chose the authority to use the easement for ingress and 

egress, but that the easement was not a grant of a fee. The 

commissioner found that Walton, as the owner of the fee, retained 

the right to use the easement area but could not use it in a 

manner which interfered with Capital's rights in the easement. 

 Capital filed exceptions to the commissioner's report, 

challenging his determination that Walton could continue to use 

the area encumbered by the exclusive easement. The trial court 

sustained Capital's exceptions and entered an order declaring 

that Capital has the exclusive right to determine who may use the 

exclusive easement and may exclude the owner of the servient 

estate, Walton. We awarded Walton an appeal to consider the 

scope of the easement. 

 In determining the scope of an easement, we have repeatedly 

held that the owner of the servient estate retains the right to 

 1The northern 20 feet of Walton's property is also subject 

to a non-exclusive right of way easement created in 1956. Both 

Walton and Capital are entitled to use this non-exclusive 

easement and Capital did not challenge Walton's right to use 

the northern 20 feet of the 50 foot easement created in 1980. 

Therefore, this opinion only addresses the parties' respective 

rights to use of the southern 30 feet of the 50 foot easement. 
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use his land in any manner which does not unreasonably interfere 

with the use granted in the easement. Preshlock v. Brenner, 234 

Va. 407, 410, 362 S.E.2d 696, 698 (1987); Brown v. Haley, 233 Va. 

210, 216, 355 S.E.2d 563, 568 (1987); Hartsock v. Powell, 199 Va. 

320, 324, 99 S.E.2d 581, 585 (1957). None of our prior cases, 

however, specifically addresses the legal right of the easement 

owner to exclude the servient owner's use of the land based on 

the phrase "exclusive easement" in the language creating the 

easement. 

 Ruling that the language creating the easement was 

unambiguous, the trial court looked to the dictionary definition 

of "exclusive" and concluded that the phrase "exclusive easement" 

gives the easement owner the legal right to control who may use 

the easement, including the legal right to exclude the servient 

landowner from using the easement.2 The trial court's resolution 

of the issue effectively transmuted a grant of an easement into 

the grant of a possessory interest or an estate by allowing the 

owner of the easement to deprive the servient estate owner of the 

use of his land. 

 If a conveyance grants the right to exclusive use of all or 

part of the servient estate for all purposes, the owner of the 

servient estate is stripped of his right to use the land. 

Conveyances of this sort are generally considered to effectively 

 

 2 Walton did not assign error to the trial court's 

determination that the language creating the easement was 

unambiguous. 
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transfer an interest in fee, not an easement, and are not 

favored. If, however, the conveyance limits exclusive use of all 

or part of the servient estate to a particular purpose, the 

conveyance is an easement and the servient landowner retains the 

right to use the land in ways not inconsistent with the uses 

granted in the easement. Restatement of Property § 471, cmt. a, 

b, e (1944); 7 Thompson on Real Property, Thomas Edition (David 

A. Thomas ed. 1994) § 60.04(b)(1)-(2). 

 In this case, the language creating the easement limited its 

use in two ways. First, the easement is limited to use as a 

"right of way" and second, the right of way can only be used for 

the "purpose of ingress and egress to State Route 33." This 

limiting language is consistent with the category of conveyances 

which are true easements and leaves the servient owner with the 

right to use his land in a manner not inconsistent with the 

nature of the uses granted to the owner of the easement. 

 Accordingly, we will reverse that portion of the judgment of 

the trial court sustaining Capital's exceptions to the report of 

the commissioner and its holding that Capital has the right to 

exclude the owner of the servient tract from using the easement. 

 We will enter final judgment here specifying that Walton retains 

the right to use the easement but in a manner that does not 

interfere with Capital's right to use the easement for the 

purpose of ingress and egress to State Route 33. 

 Reversed in part,

 and final judgment.