## Facts

- A nearly 1,000-acre farm (“Midway”) in Albemarle County was divided by a 1895 deed into three lots: Lot 1 fronting a public road, Lot 2 behind Lot 1, and Lot 3 behind Lots 1 and 2.
- The 1895 deed granted Lot 2 an easement over a farm road across Lot 1 to reach the public road and granted Lot 3 an easement to use the same farm road across Lots 2 and 1 to reach the public road.
- Cushman acquired portions of Lot 3 in 1943 and 1944; Barnes later acquired portions of Lots 1, 2, and 3 in 1947 and 1952.
- Over time, other access routes to Cushman’s property were developed, and the farm road was no longer the primary access route.
- Cushman later planned a subdivision on its Lot 3 property and notified Barnes it intended to use the farm road as access for the development.
- Barnes objected, disputing either the existence of the easement in Cushman’s favor or the right to use it for intensified subdivision traffic.
- Cushman sued in equity to establish the right of way and to enjoin interference.
- The trial court recognized an easement appurtenant benefitting Cushman but limited the easement’s width and restricted the scope/intensity of use.

## Issues

1. Whether Cushman, as successor to Lot 3, held an easement appurtenant over the farm road across Barnes’s land under the 1895 deed and Virginia’s statute governing passage of appurtenances (then Code § 55-50).
2. Whether subsequent conveyances, nonuse, or the development of alternative access extinguished or curtailed the easement.
3. If the easement existed, how to determine its permissible width and whether subdivision-related use would unreasonably increase the burden on the servient estate.

## Decision

- The Supreme Court of Virginia affirmed the decree recognizing an easement appurtenant benefitting Cushman over the farm road across Barnes’s land.
- The court held the easement passed with the dominant estate by operation of statute because no deed in Cushman’s chain expressly excepted it.
- The court rejected extinguishment based on nonuse or the existence of other access routes, absent proof of abandonment, release, merger, or comparable doctrine.
- The court largely upheld the trial court’s limitations fixing a definite width and restricting use to prevent an unreasonable increase in burden on Barnes’s land inconsistent with the original grant’s contemplated use.

## Legal Principles

- An easement appurtenant created by deed runs with the dominant estate and passes in subsequent conveyances unless expressly excepted by deed; a statutory conveyancing rule may supply this result without repeated mention of the easement.
- Nonuse or reduced use of a deeded easement, and the creation of alternate access, do not alone extinguish the easement; extinguishment requires a recognized legal basis such as abandonment plus conduct manifesting intent, release, merger, or comparable grounds.
- Where an easement grant is general and does not specify dimensions, a court may determine and fix a reasonable width based on historical use and reasonable needs, while protecting the servient estate from undue burden.
- The dominant owner may make reasonable use of an easement in connection with ordinary and reasonably foreseeable development of the dominant land, but may not change the use so as to unreasonably increase the burden on the servient estate beyond what the original parties could fairly have contemplated.

## Conclusion

The court confirmed that Cushman held an appurtenant right of way created by the 1895 deed and carried forward by statute, not lost through nonuse, but also approved equitable limits on the easement’s dimensions and intensity of use to keep the servient estate’s burden reasonable and consistent with the grant.


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