Lindsey v. Clark

Rule of Law:

An easement created by an express deed is not extinguished by mere non-use or by the use of an alternate path based on a mutual mistake of the parties. To prove abandonment of such an easement, there must be non-use coupled with clear and unequivocal evidence of an intentional relinquishment of the right.

Facts:

• In 1937, the Clarks owned four adjoining lots and sold the front two-thirds of two of them (Lots 33 and 34) to their daughter and son-in-law, the Sixes.
• The deed to the Sixes contained a reservation for a 10-foot right-of-way along the south side of the property for the benefit of the Clarks' remaining rear property.
• Despite the deed's language, Clark began using a driveway located on the north side of the property to access his rear lots, and this use continued undisputed for many years.
• The Sixes built a house on their lots which encroached approximately two feet onto the reserved southern right-of-way.
• The property was subsequently sold to the McGhees in 1939 with the same southern reservation, and then to the Lindseys in 1944 without the reservation mentioned in their deed, although the prior deeds were recorded.
• The Lindseys were aware of the northern driveway's use when they purchased the property, but later discovered the easement was officially located on the south side and sued to enjoin the Clarks' use of the northern driveway.

Procedural Posture:

• The Lindseys instituted a suit in a trial court to enjoin the Clarks from using a driveway on their property.
• The trial court held that the Clarks owned the right-of-way on the south side of the Lindsey lots as described in the original deed.
• The trial court's decree gave the Lindseys the option to either make the southern right-of-way available or to allow the Clarks to continue using the northern driveway.
• The Lindseys appealed the trial court's decree to the Supreme Court of Appeals of Virginia.