## Facts

- A 2.58-acre marina tract on Aquia Creek relied on a roadway easement as its sole land access.
- In 1951, predecessors executed a written agreement establishing a roadway/right-of-way from a state highway to the property line and continuing to the marina tract; the agreement referred to the road as a “private roadway.”
- The marina historically operated as a commercial marina, growing from about 10 slips to 84 slips.
- The dominant-estate owners sought to expand the marina to 280 slips under a county special use permit and to pave the access roadway.
- Owners of the servient estates filed a chancery suit to enjoin the expansion and paving, alleging the intensified traffic would overburden the easement.
- A commissioner in chancery, after an evidentiary hearing and site view, found the easement was perpetual, not limited to domestic use, and usable for commercial access; the commissioner further found the proposed expansion changed only the degree of use (not its type) and would not overburden the easement, and that paving was a reasonable maintenance measure.
- The trial court overruled the servient owners’ exceptions and confirmed the commissioner’s report; the servient owners appealed.

## Issues

1. Whether expanding a commercial marina from 84 to 280 slips would impose an impermissible additional burden on an access easement created by grant, warranting injunctive relief.
2. Whether describing the road as a “private roadway” in the 1951 agreement restricted the easement to noncommercial or otherwise limited uses.
3. Whether paving the easement constituted an unreasonable increase of the burden on the servient estates.

## Decision

- The Supreme Court of Virginia affirmed the final decree confirming the commissioner’s report.
- The Court held the expansion and associated increase in traffic did not overburden the easement because the change increased only the degree of use, not the nature of the burden.
- The Court held the “private roadway” language was descriptive rather than restrictive and did not limit the easement’s permissible purposes.
- The Court upheld paving as a reasonable improvement/maintenance measure consistent with the easement’s use.
- Applying deferential review to confirmed commissioner findings, the Court concluded the servient owners failed to prove an additional, different burden.

## Legal Principles

- An easement created by grant or reservation may be used for any reasonable purpose unless the instrument expressly limits the easement to a particular use or purpose.
- An intensified use that increases the burden on servient land will not be enjoined if it does not change the nature of the burden; an increase in degree, standing alone, is insufficient to constitute an impermissible “additional” burden.
- Descriptive terms such as “private roadway,” without more, do not necessarily impose use restrictions on an easement.
- The easement holder may make reasonable improvements to permit full enjoyment of the easement, so long as the improvements do not unreasonably increase the burden on the servient estate.
- Confirmed factual findings by a commissioner in chancery receive substantial weight on appeal and are not set aside unless plainly wrong; the party claiming overburdening bears the burden of proof.

## Conclusion

The court refused to enjoin the marina’s planned expansion and the paving of the access road, holding that a commercially used access easement not expressly limited by its grant is not overburdened by a reasonable increase in traffic that changes only the degree, not the nature, of the easement’s use.


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