Present: All the Justices 

BRUCE A. TAYLOR, ET AL. 

v. Record No. 012583 OPINION BY JUSTICE CYNTHIA D. KINSER 

 SEPTEMBER 13, 2002 

RICHARD R. McCONCHIE, ET AL. 

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY 

George E. Honts, III, Judge 

This appeal arises from an amended bill of complaint 

filed by the appellants, Bruce A. and Karen D. Taylor (the 

Taylors), seeking injunctive and declaratory relief with 

regard to an easement for access to their property located 

in Botetourt County. Because we conclude that the circuit 

court did not err in finding that the original easement had 

been extinguished and that, under the terms of a new, 

relocated easement, the Taylors’ access to their property 

is now limited to vehicular and pedestrian traffic, we will 

affirm that aspect of the court’s judgment. However, we 

hold that the court abused its discretion in refusing to 

allow the Taylors to present evidence about their ability 

to access their property in light of a post-trial survey 

changing a small portion of the easement. Accordingly, we 

will remand for further proceedings. 

I. FACTS AND MATERIAL PROCEEDINGS 

The easement at issue was first created in 1949 when 

Philip and Kate S. Kohen conveyed a 12-acre parcel to Mary 
Ann Jane Sink; the parcel was subsequently conveyed to 

Charles L. Sink (Sink). The deed from the Kohens reserved 

an easement (the Kohen easement) over the property being 

conveyed “so that [the Kohens could] get to their remaining 

lands adjoining the land sold by this deed,-from the 

[present Virginia Secondary Route 635].” The deed 

specified that the “road-way . . . shall be of sufficient 

width to permit the free and convenient passage of motor 

vehicles and farm vehicles with loads of hay and other farm 

products, and with further sufficient width for cuts and 

fills, and to permit the convenient working of said road.” 

In 1997, the Taylors entered into a real estate 

contract to purchase a parcel of property, which is the 

dominant estate served by the easement at issue, from 

Patrick D. and Ann M. McClave (the McClaves). The contract 

between those parties provided, in pertinent part, that: 

The Sellers herein covenant[] that [they have] a 

legal right-of-way through the lands of the 

adjoining property owners to the State Road for 

the new road [the Sellers have] constructed and 

furthermore that said right-of-way may be used if 

the land subject to this contract is subdivided. 

This covenant shall survive closing. 

 After the execution of this contract with the Taylors 

but prior to closing, the McClaves entered into a “DEED OF 

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EASEMENT AND AGREEMENT” with Sink.1 The agreement expressly 

abandoned the Kohen easement (referred to in the agreement 

as the “Original Easement”), but created a new, relocated 

easement across the servient property to Virginia Secondary 

Route 635. The servient property identified in this 

agreement included not only the 12-acre parcel that was 

originally the servient property with regard to the Kohen 

easement, but also two additional parcels that are adjacent 

to the 12-acre parcel. The terms of the agreement granted 

the McClaves “a nonexclusive Right-of-Way Easement for 

vehicular and pedestrian access from the southern boundary 

of the [McClave property] across the [Sink property] to 

Virginia Secondary Route 635” (the McClave/Sink easement). 

The McClave/Sink easement was expressly “delimited by the 

existing ‘New Shale Surface Road’, as the same is now 

located, constructed, graded, and drained, as shown to 

scale on a Plat of Survey” recorded with the deed and 

agreement. It was situated slightly to the east of the 

Kohen easement, except at the southern terminus near the 

state route, where the two easements generally coincided. 

 In December 1998, the Taylors and the McClaves closed 

on the real estate contract between them. The deed from 

 1

 The agreement appears to have been in settlement of a 

suit instituted by Sink against the McClaves. Sink had 

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the McClaves conveyed, along with the property, the rightof-way described in the “DEED OF EASEMENT AND AGREEMENT” 

between the McClaves and Sink, i.e., the McClave/Sink 

easement, and specified that the conveyance was subject to 

the McClave/Sink easement agreement. However, the deed 

from the McClaves to the Taylors did not refer to the Kohen 

easement. 

 In the spring of 1999, Richard R. and Christina G. 

McConchie (the McConchies), who owned property adjacent to 

the “New Shale Surface Road” (the shale road), challenged 

the Taylors’ route of access, claiming that the roadway the 

Taylors were using crossed over the McConchies’ property. 

In July, the Taylors received a “bar notice” from Sink, 

advising that their right of access was limited to the 

shale road as shown on the plat recorded with the 

McClave/Sink easement agreement. Later, both the 

McConchies and Sink erected fences that, according to the 

Taylors, restricted their access and made it impossible for 

a cattle truck to travel along the road without the prior 

removal of some of the fence posts. The Taylors then filed 

the present suit, naming as defendants Sink and the 

McConchies. 

 

also named the Taylors as defendants in that suit. 

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 At trial, the evidence showed that the McClave/Sink 

easement encroached on the McConchies’ property by about 

four feet near the southern end of the shale road. It was 

also established that, while the stated purpose of the 

McClave/Sink easement was to provide vehicular access “from 

the southern boundary of the [Taylor property] to Virginia 

Secondary Route 635,” the language of the agreement limited 

the location of the easement to the shale road, but that 

road did not extend to the state route. The evidence 

showed that the Kohen easement also fell short of reaching 

the present location of the state road by approximately 20 

feet. 

The circuit court held that the Kohen easement had 

been “supplanted” by the McClave/Sink easement. The court 

then found that Sink had breached the special warranty of 

title given in the deed of easement to the McClaves, the 

Taylors’ predecessor in interest, and that the Taylors 

were, therefore, entitled not only to access their property 

via the shale road as specified in the McClave/Sink 

easement, but also to have access across Sink’s property 

from the ending point of the shale road to the state route, 

thereby fulfilling the easement’s intended purpose. After 

announcing its decision from the bench, the court 

instructed a surveyor on the particulars of that decision 

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and directed the surveyor to prepare a plat reflecting the 

court’s ruling. 

After receiving the new survey, the Taylors moved the 

court to reconsider its decision, contending that the 

easement awarded by the court was only 7.05 feet wide at a 

point near the state route and thus too narrow to provide 

vehicular access to their property. Treating the motion as 

one to introduce newly-discovered evidence, the court 

denied the motion and entered its final decree, attaching a 

copy of the new plat. The Taylors appeal from that decree. 

II. ANALYSIS 

On appeal, the Taylors raise three assignments of 

error. First, they assert that the circuit court erred in 

finding that the Kohen easement had been extinguished and 

argue that it was conveyed to them in addition to the 

McClave/Sink easement. Next, they contend that the 

easement awarded by the circuit court is insufficient to 

provide vehicular access to their property, as assured by 

both easements. Finally, the Taylors contend that they 

should have been permitted to present evidence concerning 

the impact of the post-trial survey that was attached by 

the circuit court to its final decree. 

As to their first assignment of error, the Taylors 

contend that, by virtue of their contract to purchase the 

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McClaves’ property, they acquired an equitable interest in 

the Kohen easement and that, since they were not parties to 

the agreement establishing the McClave/Sink easement, their 

interest in the Kohen easement was not extinguished by that 

agreement. The Taylors also point out that, although their 

deed from the McClaves did not mention the Kohen easement, 

it nevertheless included the provision that “[t]his Deed is 

made subject to all easements, restrictions, and conditions 

of record affecting the hereinabove-described property.” 

We agree with the Taylors’ position that an easement 

remains with the dominant estate to which it is appurtenant 

and passes to a subsequent grantee even though not 

specifically mentioned in the deed to that grantee. See

Code § 55-50; Corbett v. Ruben, 223 Va. 468, 473-74, 290 

S.E.2d 847, 850 (1982). Likewise, upon execution of the 

real estate contract with the McClaves, the Taylors became 

vested of an interest in the McClaves’ property, including 

the appurtenant Kohen easement. See Carmichael v. Snyder, 

209 Va. 451, 454-55, 164 S.E.2d 703, 706 (1968). 

Nevertheless, these principles do not resolve the issue 

raised here. 

The agreement creating the McClave/Sink easement 

specifically stated that the parties were abandoning the 

“Original Easement” (the Kohen easement) and creating a 

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new, relocated easement across the servient property.2 That 

new easement was confined to the area where the shale road 

had been constructed. The McClave/Sink agreement was in 

accord with the McClaves’ covenant, included in their real 

estate contract with the Taylors, that they had a right-ofway through the lands of the adjoining property owners to 

the state route along the new road that they had 

constructed (the shale road). Similarly, the deed from the 

McClaves to the Taylors included the right-of-way described 

in the McClave/Sink easement agreement and made the 

conveyance to the Taylors subject to that agreement which, 

as already stated, abandoned the Kohen easement. Thus, 

when the deed from the McClaves was delivered and accepted 

by the Taylors, any rights to the Kohen easement that the 

Taylors may have acquired by virtue of the real estate 

contract, despite its specific reference to the new road 

constructed by the McClaves, were extinguished under the 

doctrine of merger.3 “The rule is that when a deed is 

 2

 The term “abandonment” means “[t]he relinquishing of 

a right or interest with the intention of never again 

claiming it.” Black’s Law Dictionary 1 (7th ed. 1999). 

3

 Notably, in a letter introduced into evidence, the 

Taylors’ attorney advised them that if they closed on the 

contract with the McClaves, they would be waiving the right 

to pursue any cause of action that they might have against 

the McClaves concerning the right-of-way. 

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executed and accepted in performance of a prior preliminary 

contract, the deed, if unambiguous in its terms, and 

unaffected by fraud or mistake, must be looked to alone as 

the final agreement of the parties.” Woodson v. Smith, 128 

Va. 652, 656, 104 S.E. 794, 795 (1920); accord Davis v. 

Tazewell Place Assocs., 254 Va. 257, 262, 492 S.E.2d 162, 

165 (1997); Miller v. Reynolds, 216 Va. 852, 854-55, 223 

S.E.2d 883, 885 (1976). 

Nor does the language in the Taylors’ deed stating 

that the conveyance was “subject to all easements, 

restrictions, and conditions of record” affecting the 

property change our conclusion. That provision serves 

merely to acknowledge that any existing rights are excepted 

from the conveyance and continue to limit the Taylors’ fee 

simple interest. See Davis v. Henning, 250 Va. 271, 275, 

462 S.E.2d 106, 108 (1995). Thus, we conclude that the 

circuit court did not err in finding that the Taylors no 

longer have any rights under the Kohen easement. 

Consequently, we also conclude that the circuit court 

did not err in construing the Taylors’ easement as one for 

solely vehicular and pedestrian access to their property. 

The Taylors assert that the court erred in limiting the 

width of the easement to 7.05 feet at a point near the 

state route. According to the Taylors, that limitation in 

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the width made the easement too narrow for “vehicular 

access” as assured by the easement conveyed to the Taylors 

in their deed. Relying on the language in both the 

McClave/Sink easement and the Kohen easement, the Taylors 

argue that, while a passenger automobile may be able to 

“squeeze through” this 7.05-foot “gateway”, a larger 

vehicle or farm equipment cannot do so, especially in light 

of the sharp left turn that must be negotiated after 

passing through the 7.05-foot opening. 

To the extent that the Taylors claim that the 

character of their easement remains as it was under the 

Kohen easement, they are mistaken. The deed creating the 

Kohen easement specifically stated that the easement was to 

be of sufficient width to allow for the free passage of 

motor vehicles and farm vehicles. However, when the Kohen 

easement was abandoned in the agreement between the 

McClaves and Sink, not only was the easement relocated, its 

purpose was also changed. That change is evidenced by the 

language in the “DEED OF EASEMENT AND AGREEMENT” specifying 

“a nonexclusive Right-of-Way Easement for vehicular and 

pedestrian access from the southern boundary of the 

Dominant Property across the Servient Property to Virginia 

Secondary Route 635.” In other words, the easement no 

longer provided access for farm equipment. 

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However, we do agree with the Taylors that the circuit 

court abused its discretion by refusing to reopen the 

evidence after the post-trial plat was prepared. Relying 

on our decisions in Odum v. Commonwealth, 225 Va. 123, 301 

S.E.2d 145 (1983) and Fulcher v. Whitlow, 208 Va. 34, 155 

S.E.2d 362 (1967), the court held that the Taylors had not 

satisfied the criteria for granting a new trial on the 

basis of newly-discovered evidence. While not necessarily 

dispositive of the issue, we note that those cases dealt 

with motions for a new trial, whereas the Taylors merely 

sought to reopen the evidence and did not ask for a new 

trial. 

It is apparent from the plat depicting the 

McClave/Sink easement and from testimony that the easement 

narrows to a width of 7.05 feet at a point where there is a 

sharp left turn in the roadway as one travels along the 

easement from the state route. That is the same narrow 

“gateway” about which the Taylors complain, but it did not 

come about as a result of the circuit court’s finding that 

a small part of the shale road encroached upon the 

McConchies’ property. That narrow portion in the easement 

existed when the McClave/Sink easement was created and is 

shown on the plat recorded with that deed of easement. 

However, when the plat was prepared post-trial to reflect 

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the circuit court’s ruling, the area in which to negotiate 

the sharp left turn in the easement, and thus the angle of 

that turn, changed because the court shifted a small 

section of the easement eastward in order to correct the 

encroachment upon the McConchies’ property. Consequently, 

the Taylors asserted in their motion to reopen the evidence 

that their ability to use the easement for vehicular and 

pedestrian access to their property had been adversely 

affected. Two photographs introduced into evidence depict 

an automobile passing through this 7.05-foot-wide area, but 

those pictures do not demonstrate the extent to which the 

angle of the turn has been affected. 

The plat establishing the location of the Taylors’ 

easement and changing the angle of that turn was not 

available to the parties until after the trial. While the 

court and the surveyor discussed the court’s decision with 

the parties by making some pencil marks on the plat of the 

McClave/Sink easement, the parties did not know the exact 

change in the location of the easement until the post-trial 

plat was prepared. More importantly, the Taylors could not 

have understood what impact, if any, the court’s proposed 

ruling would have on the use of their easement for 

vehicular access to their property until they had the plat 

in hand and could actually use the easement with the 

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changes effected by the court. On this basis, we conclude 

that the court abused its discretion in refusing to permit 

the Taylors to introduce additional evidence on that point. 

For these reasons, we will affirm in part and reverse 

in part the judgment of the circuit court and remand for 

further proceedings in accordance with this opinion. 

Affirmed in part, 

reversed in part, 

 and remanded. 

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