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Law School Case Brief

Cushman Virginia Corp. v. Barnes - 204 Va. 245, 129 S.E.2d 633 (1963)


When a right of way is granted over land, the servient estate, for the benefit of other land, the dominant estate, and the instrument creating the easement does not limit the use to be made thereof, it may be used for any purpose to which the dominant estate may then, or in the future, reasonably be devoted. This rule is subject to the qualification that no use may be made of the right of way, different from that established at the time of its creation, which imposes an additional burden upon the servient estate.


Cushman Virginia Corporation and Donald C. Barnes both owned property that was originally part of one large farm. A road existed across Barnes’ property that was a right of way in the original deed to Cushman’s property, but that right of way was not specifically named as such in the deed to Cushman. Cushman wanted to subdivide its property and use the road, so Cushman filed a complaint seeking an adjudication that there was a right of way appurtenant to Cushman’s land over Barnes' land. The chancellor found that the right of way existed but that it was limited in its use and width. The appellate court modified the decree and The Supreme Court of Virginia granted Cushman an appeal. Barnes also assigned cross-error to the findings of the chancellor.


Did the chancellor err in limiting Cushman’s use of the right of way?




The Supreme Court of Virginia concluded that the right of way over the road was an appurtenance of Cushman’s land that had passed by operation of Va. Code Ann. § 55-50. The court found that there was sufficient credible evidence to support the chancellor's determination that the width of the road was limited to its width at the creation of the right of way. However, the court held that the right of way contained no terms limiting its use and the chancellor erred by limiting Cushman’s use. Cushman was entitled to make such use of the right of way as its narrow width permitted.

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