Opinion
48036 Record No. 911824
September 18, 1992
Present: All the Justices
The trial court erred in finding that the private plaintiff had acquired a prescriptive right-of-way across a public utility's property that is being used for a public purpose, and that finding is reversed.
Real Property — Rights-of-Way — Easements — Public Utilities — Railroad Crossings
In the mid-1800s, the landowners conveyed a strip of land running across their farm to a railroad company. Because the strip of land bisected the farm, the railroad company maintained a crossing that allowed access to both portions of the farm, as required by statute. Another farm owner used the crossing and a connecting farm road over the farm to travel between his separate farms, although neither the railroad nor the farm gave him permission to do so. The state landlocked a part of the land belonging to the farmer when it built a limited access highway. He sold the landlocked land to new owners, who then acquired an easement of right-of-way across over the farm crossed by the railroad, which purported to grant an easement across the private crossing of the railroad. These owners sold the property, including the easement, to the plaintiff, who put a mobile home on it for use as her residence. The railroad advised her that she would have to sign a crossing agreement, which it did not provide until she had already used the crossing for about a year. The plaintiff refused to sign the proposed agreement which reflected her obligations to pay the cost of safety improvements to the farm crossing, and brought this suit to establish a prescriptive right to use the crossing as a private crossing. The trial court held that the plaintiff had failed to prove an easement by prescription for residential uses, but that she had established a prescriptive right to use the crossing for agricultural and related uses. The railroad appeals.
1. Assuming, without deciding, that the plaintiff carried her burden of proving all the necessary elements of a prescriptive easement upon property not used for public purposes, no prescriptive right can be acquired in property affected with a public interest or dedicated to a public use.
2. The railroad property is affected with a public interest.
Appeal from a judgment of the Circuit Court of Dinwiddie County, Hon. Thomas V. Warren, judge presiding.
Reversed and remanded.
John Y. Richardson, Jr. (David N. Anthony; Eugene R. Marable, Jr.; Williams, Kelly Greer, on brief), for appellant.
No brief or argument for Betty J. Waselchalk.
The sole issue here is whether a prescriptive right-of-way can be acquired over a public utility's property, which property is being used for a public purpose.
On March 1, 1851, William B. Potts and Charity S. Potts, his wife, conveyed a strip of land running generally east and west across their farm (the Potts-Stanfield farm) to the South Side Railroad Company (South Side) for the construction and operation of a railroad. Because the strip of land bisected the farm, South Side constructed a crossing that connected the two portions, as required by statute, and that its successor, the Norfolk and Western Railroad Company (NW), maintained.
Code Sec. 56-16, in substantially the same language as its ancestor, Code (1849) tit. 17, c. 56, Sec. 22, provides in pertinent part:
Every public service corporation, whose road, canal, or works passes through the lands of any person in this State, shall provide proper and suitable wagonways across such road, canal, or other works, from one part of such land to the other, and shall keep such ways in good repair.
In 1984, successors in title to the owners of the Potts-Stanfield farm conveyed to Betty Waselchalk an easement of right-of-way over a road that traversed the farm and NW's tracks at the crossing South Side had built, and NW was maintaining. This right-of-way was to serve Waselchalk's property, which adjoined the Potts-Stanfield farm. The record also indicates that the previous owners of Waselchalk's land had used this easement for agricultural and related purposes for some time without permission from the owners of the Potts-Stanfield farm.
In 1985, Waselchalk planned to move a mobile home onto her land for use as her residence, and to use the right-of-way as her means of access to a public highway. Waselchalk made inquiries of NW regarding such use. Upon learning of Waselchalk's plan to use the crossing as access to her residence, NW advised Waselchalk that she would have to sign a crossing agreement. Waselchalk moved the mobile home onto the property and used the crossing for about a year before she was furnished with a copy of the proposed crossing agreement.
Because residential use of a railroad crossing is more frequent than farm use, NW requires residential-crossing permit holders to pay the cost of safety improvements to farm crossings. Although NW pays the maintenance costs of lesser-used farm crossings in accordance with Code Sec. 56-16, residential-crossing permit holders must also pay the maintenance costs of a residential crossing. Waselchalk refused to sign NW's proposed agreement that reflected her obligations to pay these costs, and brought this suit to establish her prescriptive right to use the crossing.
Following an ore tenus hearing, the chancellor held that although Waselchalk had failed to "prove an easement by prescription for residential uses," she had established a prescriptive right to use the crossing "for agricultural and related uses." Accordingly, the chancellor enjoined NW from interfering with those uses. The chancellor also directed that a copy of the decree be recorded showing NW as grantor and Waselchalk as grantee. NW appeals.
We will assume, but not decide, that Waselchalk carried her burden of proving all the necessary elements of a prescriptive easement upon property not used for public purposes. Citing the case of Chesapeake and Ohio Canal Co. v. Great Falls Power Co., 143 Va. 697, 719, 129 S.E. 731, 738 (1925), Waselchalk contended in the trial court that she could acquire a prescriptive right in NW's property that was used for a public purpose. However, Great Falls Power Co. involved a prescriptive easement in property owned by a public utility that was not being used for public purposes.
Waselchalk filed a memorandum in the trial court but filed no brief on appeal.
We have said that " 'no prescriptive right can be acquired in property affected with a public interest or dedicated to a public use.' " Preshlock v. Brenner, 234 Va. 407, 409, 362 S.E.2d 696, 697 (1987) (quoting City of Lynchburg v. Chesapeake and Ohio Ry., 170 Va. 108, 116, 195 S.E. 510, 514 (1938)). There can be little doubt that this railroad property is affected with a public interest; an average of 3,808 NW railroad cars traverse this crossing each day.
Therefore, we conclude that the chancellor erred in two respects: first, in finding that Waselchalk had a prescriptive right to use NW's crossing for any purpose, and second, in enjoining NW's interference with her use of the crossing. Accordingly, we reverse the decree of the chancellor and remand this cause for entry of an appropriate decree, and for correction of the land records, consistent with this opinion.
Reversed and remanded.