VEPCO v. BUCHWALTER

Easement description granted public service corporation sufficiently precise under provisos of Code Sec. 56-259; grantor estopped to assert restrictive covenants and grantees estopped by deed; easement construed; other issues.

(1) Property — Real Property — Easements — Public Service Companies — Statutory Construction — Easements of Public Service Corporations, Etc. (Code Sec. 56-259) — Must Be Described with Reasonable Particularity and Definiteness — Description by Reference to Centerline and Ascertainable Beginning Sufficient.

(2) Property — Real Property — Easements — Public Service Companies — Statutory Construction — Easements of Public Service Corporations, Etc. (Code Sec. 56-259) — of Easement Sufficient Under Statute.

(3) Property — Real Property — Easements — Deeds — Restrictive Covenants — Estoppel — Grantor Estopped as Against Grantee from Asserting Anything in Derogation of Title Conveyed.

(4) Property — Real Property — Easements — Deeds — Restrictive Covenants — Estoppel — Estoppel by Deed — One Who Derives Property From or Through Grantor Bound by Every Estoppel Binding on Grantor.

(5) Property — Real Property — Easements — Deeds — Restrictive Covenants — Estoppel — Estoppel by Deed — Applies Only in Suits Growing Out of or Based Upon Transaction in Which Deed Was Executed and Does Not Apply to Collateral Action.

(6) Property — Real Property — Easements — Deeds — Restrictive Covenants — Estoppel — Estoppel by Deed — Applicable Here.

(7) Property — Real Property — Easements — Deeds — Restrictive Covenants — Estoppel — Estoppel By Deed — Rules of Court — Assignments of Error, Etc. (Rule 5:21) — Argument that Doctrine of Unclean Hands Precludes VEPCO from Asserting Estoppel By Deed Defense Not Presented at Trial and Not Considered on Appeal.

(8) Pleading and Practice — Ore Tenus Hearing — Finding of Fact Made by Chancellor Who Heard Evidence Ore Tenus Carries Weight of Jury Verdict and Not Disturbed Unless Plainly Wrong or Without Evidence to Support It.

(9) Property — Real Property — Easements — Construction — Public Service Companies — "Poles" — Trial Court's Finding that Steel Structures Are "Poles" Within Meaning of Agreement Not Plainly Wrong or Without Evidence to Support It.

In 1972, McCarthy purchased 19 lots by deed which contained certain covenants restricting the construction of nuisances and structures other than single-family dwellings, garages, and storage buildings. In 1973, McCarthy conveyed to VEPCO an easement for the construction, operation, and maintenance of electric power poles. The easement was described by the location of its centerline and beginning point and was recorded. McCarthy later sold the 19 lots to appellees.

Appellees brought this suit to have the easement declared void and to enjoin VEPCO from constructing the power lines. The Trial Court held that the easement was void because it was insufficiently described, that the covenants running with the lots do not prohibit the construction of the structures that VEPCO planned to erect, and that those structures constitute "poles" as the term is used in the easement agreement.

VEPCO appeals, the appellees also assigning cross-error to the Trial Court's rulings that the restrictive covenants do not prohibit construction of an electric transmission line and that the structures to be erected were "poles" within the meaning of the easement agreement.

1. Code Sec. 56-259 requires that contracts granting easements to public service corporations specify with reasonable particularity and definiteness the location of the easement, and expressly authorizes location of the easement by reference to a center or survey line showing courses and distances from some ascertainable point of beginning.

2. The easement granted by contract, describing the easement by courses and distances from an ascertainable beginning point, is specified with reasonable particularity and definiteness to satisfy the requirements of Code Sec. 56-259.

3. A grantor is estopped as against his grantee from asserting anything in derogation of the title conveyed.

4. A party who derives title from or through a grantor stands in the same position as the grantor and is bound by every estoppel which would have been binding on the grantor.

5. The estoppel of a deed is limited to suits based upon it or growing out of the transaction in which it was executed; it does not extend to a collateral action which has the same subject matter but a different cause. M'Cullough v. Dashiell, 78 Va. 634 (1884), discussed.

6. Buchwalter is estopped to challenge the document with which McCarthy conveyed an easement to VEPCO because he is privy to McCarthy and is therefore bound by all estoppels which bound McCarthy.

7. Because an argument based on the doctrine of unclean hands was first made on appeal, the Trial Court had no opportunity to rule on it, and the Supreme Court will not consider it (Rule 5:21).

8. A finding of fact made by a Chancellor who has heard evidence ore tenus carries the weight of a Jury verdict and will not be disturbed on appeal unless plainly wrong or without evidence to support it.

9. The Trial Court's finding that steel structures were "poles", as that term was used in the easement agreement, is not plainly wrong or without evidence to support it.

STEPHENSON, J., delivered the opinion of the Court.

Virginia Electric and Power Company (VEPCO) appeals a ruling that an easement it acquired is void because the agreement failed to state the easement's location "with reasonable particularity and definiteness" as prescribed by Code Sec. 56-259. Appellees (collectively, Buchwalter) assign cross-error to the trial court's holdings that certain restrictive covenants running with their lots do not prohibit construction of an electric transmission line and that the structures VEPCO proposed to erect were included within the meaning of the term "pole" as it is used in the easement agreement.

In 1972, The McCarthy Company of Virginia-Maryland (McCarthy) purchased 19 lots now owned by the appellees. The deed to McCarthy contained restrictions permitting only single-family dwellings, garages, and storage buildings on the lots, prohibiting any other structures, and proscribing any activity which would constitute a nuisance.

In 1973, McCarthy conveyed to VEPCO an easement across the rear of the 19 lots allowing VEPCO "to construct, operate and maintain one line of poles . . . for the purpose of transmitting electric power." A plat is included in the easement agreement. The agreement also provides that

the location of the center line of said pole line being shown on said plat and being described as follows:

Beginning at Station 348 plus 96.14 in the property line dividing property of Owner and that of Alfred S. Hodgson and Winifred Hodgson, which point is N. 82 degrees 36' 45" W. 3 feet, more or less, along said property line from a property corner; thence S. 13 degrees 29' 45" E. 1864.88 feet to Station 367 plus 61.02 in the property line dividing property of Owner and that of Helen Munsen and others, which point is N. 82 degrees 30' 45" W. 3 feet, more or less, along said property line from a property corner.

VEPCO paid McCarthy $57,000 for the easement. All appellees purchased their lots after the easement agreement was recorded. Subsequently, appellees initiated this suit to have the easement declared void and to enjoin VEPCO from constructing the electric transmission line across their lots.

Code Sec. 56-259 provides that all contracts respecting easements for public service corporations "shall specify with reasonable particularity and definiteness the location of such easement." Moreover, it expressly authorizes the location of an easement "by reference to a center line or survey line showing courses and distances from some ascertainable point of beginning."

The agreement between McCarthy and VEPCO contains a center line of the pole line described by courses and distances from an ascertainable beginning point and located three feet from and parallel to the rear property line of the 19 lots. Thus, we believe that a fair and rational reading of the agreement, including the plat, inescapably leads to the conclusion that VEPCO acquired an easement six feet in width adjacent and parallel to the lots' rear property line. We conclude, therefore, that the easement's location meets the requirement of Code Sec. 56-259 in that it is specified in the agreement with "reasonable particularity and definiteness."

We now address the assignments of cross-error. First, Buchwalter contends that McCarthy conveyed the easement in violation of the restrictive covenants. The court ruled that the appellees were estopped from challenging McCarthy's conveyance.

[3-4] It is well established that a party who purports to convey an estate is estopped as against his grantee from asserting anything in derogation thereof. That is to say, a grantor cannot deny his title to the prejudice of his grantee. See School Board v. Smith, 134 Va. 98, 104, 113 S.E. 868, 869 (1922). Similarly, " 'those who derive title from or through the parties, ordinarily stand in the same position as the parties, and are bound by every estoppel that would have been binding on the parties.' " Richmond Cedar Works v. West, 152 Va. 533, 543, 147 S.E. 196, 199 (1929).

While conceding this is the law, Buchwalter nonetheless argues that estoppel by deed does not apply in this case because the present action does not attempt to deny McCarthy's title. Buchwalter contends that the present suit is a collateral action. For this argument, he relies upon M'Cullough v. Dashiell, 78 Va. 634 (1884). We do not agree.

[5-6] In M'Cullough, a party sought to rely upon a recital in a deed to which he was neither party nor privy, and we said that "[t]he estoppel of a deed will be limited to suits based upon it or growing out of the transaction in which it was executed, and will not extend to a collateral action, where the cause is different, although the subject matter may be the same." Id. at 641. In the present case, Buchwalter challenges the very document by which McCarthy conveyed the easement to VEPCO. Because he is in privy with McCarthy, Buchwalter is bound by every estoppel which would have been binding upon McCarthy.

Further, Buchwalter contends that the doctrine of unclean hands precludes VEPCO from raising the equitable defense of estoppel by deed. He asserts that VEPCO dealt unfairly with McCarthy. Because Buchwalter makes this argument for the first time on appeal, we will not consider it. Rule 5:21.

[8-9] By his second assignment of cross-error, Buchwalter contends that the court erred in finding that the self-supported steel structures VEPCO proposes to erect are "poles" as that term is used in the easement agreement. The court heard extensive evidence ore tenus, including undisputed expert testimony, indicating that the proposed structures are in fact "poles." The company manufacturing the structures calls them "poles," and similar structures, common in Fairfax County, have been identified by the County's Board of Zoning Appeals as "poles."

A finding of fact, made by a chancellor who has heard the evidence ore tenus, carries the weight of a jury verdict, and will not be disturbed unless plainly wrong or without evidence to support it. Burns v. Winchester Hosp., 225 Va. 545, 550, 303 S.E.2d 908, 911 (1983). Apparently, the trial court deemed it immaterial that these structures were made of steel rather than wood, and we agree. In any event, we cannot say the court's finding that the proposed structures are "poles" within the meaning of the agreement is plainly wrong or without evidence to support it.

In sum, we will reverse that portion of the decree which holds that the easement agreement was void, and we will affirm the rulings relating to the assignments of cross-error.

Reversed in part, affirmed in part, and final decree.

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