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Lindsey v. Clark | 69 S.E.2d 342 (1952)
Use it or lose it. Many privileges are conditioned on this principle. For example, some employees lose their vacation leave if they don’t use it by a certain date each year. But does this principle hold true with property easements? The Virginia Supreme Court explored this question in Lindsey versus Clark.
Floyd Clark owned four adjoining lots with his wife Helen. In nineteen thirty-seven, Clark conveyed the front portion of two lots to their daughter and her husband, Mabel and C. W. Six. Clark reserved a right of way in the deed that was ten feet wide and ran the length of the Six property on its south border. This easement allowed Clark to access the part of his property that was located behind the Six property. However, Clark created and used a driveway on the north border of the Six property. In addition, the Sixes built a house on their property that overlapped the deeded south easement by two feet. Despite the language in the deed, neither Clark nor the Sixes ever realized that the easement was supposed to be on the south border rather than the north.
In nineteen thirty-nine, the Sixes sold their property to William McGhee, and the deed reserved the same south easement. McGhee then sold the property to Horace Lindsey and his wife Mary Louise in nineteen forty-four, but this deed didn’t include the easement. Lindsey didn’t perform a title search at the time of purchase. Throughout these years and changes in ownership, Clark continued using the north driveway, and no one objected until Lindsey sued Clark several years after purchasing the property. Lindsey asked the trial court to enjoin Clark from using the north driveway and to either declare that Clark abandoned the deeded south easement or estop him from using it.
The trial court concluded that Clark didn’t abandon the south easement. But the court didn’t require Lindsey to move the encroaching house if Lindsey allowed Clark to continue using the north driveway. Lindsey appealed to the Virginia Supreme Court.
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