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212 Va. 543

Lipscomb v. Commins

Supreme Court of Virginia

Decided January 17, 1972

Supreme Court of Virginia · decided 1972-01-17

Key passage — most relied on by later courts

““Abandonment is a question of intention. A person entitled to a right of way or other easement in land may abandon and extinguish such right by acts in pais; and a cessation of use coupled with acts or circumstances clearly showing an intention to abandon the right will be as effective as an express release of the right. ... “But mere non-user of an easement created by deed, for a period however long, will not amount to abandonment. In addition to the non-user there must be acts or circumstances clearly manifesting an intention to abandon; or an adverse user by the owner of the servient estate, acquiesced in by the owner of the dominant estate, for a period sufficient to create a prescriptive right. . . . Nor is a right of way extinguished by the habitual use by its owner of another equally convenient way unless there is an intentional abandonment of the former way. . . . “The burden of proof to show the abandonment of an easement is upon the party claiming such abandonment, and it must be established by clear and unequivocal evidence. . . .””

quoted by 2 later decisions, including Lawrence v. National Fruit Product Co., Conrad v. Strickler

Relies on Lindsey v. Clark

Good law ✅— No negative treatment on recordhow we know

Decided 1972-01-17

How this case has been cited

Cited by 8 later decisions — most recently November 2003

8 state decisions

401972198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Per Curiam.

¶1 By a deed recorded August 9, 1963, Lawrence A. Lipscomb, Jr. (appellant) was conveyed a tract of land in King William County known as “Oak Spring.” The deed also conveyed the following right-of-way:

“Together with a right of way for a road over the tract of land containing 150 acres, more or less, called ‘Youngs’ which road is located along a fence and extending from ‘Oak Spring Farm’ Northwestwardly to the road leading from Chericoks Farm to the public road all of which is more definitely set forth in a certain deed dated November 27, 1908, from J. W. Montague and wife to Thomas C. Commins recorded in the Clerk’s Office of the Circuit Court of King William County, Virginia, in Deed Book 23, page 446.”

¶2*544 Thomas E. Commins, Jr. (appellee) is the own’er of the tract of land known as “Youngs.” On April 22, 1968, Commins filed a bill of complaint alleging that the right-of-way enjoyed by Lipscomb had been abandoned by Lipscomb’s predecessors in title. The bill prayed that Lipscomb be permanently enjoined from using such right-of-way.

¶3 An issue out of chancery was had, and after all the evidence was heard, the jury returned the following verdict: “We the jury upon the issue joined find for the complainant, Thomas E. Commins, Jr. and find that the road should be abandoned.”

¶4 The Chancellor, after considering motions made by Lipscomb, entered a decree affirming the jury’s verdict and enjoining Lipscomb from using the right-of-way across the land of Commins. We awarded Lipscomb an appeal from that decree.

¶5 The only question we find necessary to decide is whether the evidence was sufficient in law to support a finding that the right-of-way had been abandoned.

¶6 The party asserting the abandonment of an easement or right-of-way must prove that fact by clear and unequivocal evidence. Abandonment is a question of intention and may be proved by a cessation of use coupled with circumstances clearly showing an intention to abandon the right. Lindsey v. Clark, 193 Va. 522, 525, 69 S.E.2d 342, 344 (1952).

¶7 We have carefully considered the entire record in this case. Although there is evidence of non use of the right-of-way, there is no clear and unequivocal proof that the right-of-way in question was intentionally abandoned by Lipscomb’s predecessors in title. Accordingly, the decree appealed from is reversed and final decree entered.

¶8 Reversed and final decree.

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