by Jonathan A. Nelson
The Virginia Court of Appeals recently issued an unpublished opinion regarding a 1914 right of way easement used for logging, in Barr v. Garten Development, LLC. An unpublished opinion is not precedent, but does yield practical advice. Here are two lessons for drafting documents we can gain from the 100 years of history in this case.
First, keep the certainty of change in mind. In Barr, the 1914 Deed establishing the right of way reserved the right to place across the land “a broad gauge railroad, and for narrow gauge railroad tracks to and from any mines… [and] wagon roads.” Had the deed stopped there, the subsequent changes in transportation (coupled with the economic realities which led to releasing the mineral rights in 1979) might have decided this case before it started.
Fortunately for the owner of the easement, the attorney in 1914 included a catch-all phrase reserving “all necessary rights of way… and more particularly for the proper ingress and egress….” These were enough for the Court of Appeals to find the right of way included improving an unpaved road to the standards of the Department of Forestry for use by logging trucks.
I can see the benefit of applying this principle in a number of contexts. If I am writing a medical directive and someone has a strong preference regarding, say, being put on a ventilator, am I leaving enough flexibility and authority for the agent if the technology is radically different in ten years? If I am creating a trust making sure minor children are taken care of, do I also write it so that if it doesn’t kick in until they are 50 they aren’t treated like children? When crafting a transition plan for a family business, have I adequately provided for what happens if someone dies before the transition is completed? Not everything can be anticipated, but attorneys should balance details and principles so we don’t build any time bombs into the documents.
Second, keep the terminology of previous documents as they were used, even if the language seems antiquated or just different from your usual wording. A 1979 deed included a release of some rights; the landowner, who didn’t want logging trucks driving on a new and improved road over their land, argued that the release included the 1914 right of way. The Court found, however, that the release of “all restrictions, easements and mineral rights” did not include the right of way because “on the face of the 1914 Deed, the terms ‘easement’ and ‘rights of way’ are not used interchangeably.” Regardless of what the 1979 landowner thought he was getting, since abandonment of a right of way has to be “clear and unequivocal” on the face of the deed, he didn’t get it, and it may have been because the attorney drafting the deed didn’t preserve the original word usage. If necessary, provide explanations of how the terms are used going forward, but don’t omit it; tell the story.
Sometimes attorneys need more time or documentation than a client expects, but this lost continuity is exactly the kind of issue we want to avoid – if we put land into a trust in a way that a divorce decree or premarital agreement prohibited, or try to transfer ownership of an LLC in a way that triggers a buyback with tax consequences, we aren’t doing the client any favors. It is also a caution to those drafting their own documents, using online forms, or working outside their expertise: if you miss a term of art or don’t understand that in 1914 attorneys used a word differently, you may inadvertently create a big problem that we will read about in a Court of Appeals opinion.
Next in the Lessons From Litigation series: No-Contest Confusion Helps a Church
Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.
The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.
