Old Landowner vs. New

Old Landowner vs. New

Mulfords Lose Pricey Lawsuit Against Developer

As far as Preston and Beverley Mulford of Centreville were concerned, a developer called Fairfax Center LLC did them wrong.

Contending that the developer destroyed an easement and a sign important to the Mulfords' preschool and horseback-riding school, in October, the Centreville couple sued Fairfax Center to the tune of $835,100.

The case came to court, two months later, before Fairfax County Circuit Court Judge Terrence Ney. At that time, he dismissed part of it and took the other part under advisement. On March 6, Ney issued his written opinion on that remainder, ruling that the Mulfords' allegations just didn't stand up.

"The Court finds that the Mulfords fail to possess any easement or other continuing legal right to use the former easement area for any purpose," wrote the judge. "The Motion for Judgment is dismissed."

In 1972, the Mulfords purchased land adjacent to and east of Old Centreville Road. The CentreMed medical facility is now next to that parcel and Fairfax Center — which now owns the property — is building a real-estate company and other businesses on that land.

When the Mulfords bought the parcel, they were granted an easement that connected Old Centreville Road westward to Route 29. They later put an asphalt roadway and a sign there, advertising their schools.

However, in 1987, VDOT gave the Mulfords $12,000 and purchased from them the portion of the easement serving as the access point to Route 28. It left them with about 60 feet of roadway which extended from Old Centreville Road, but deadended before reaching Route 28. The Mulfords used it as a nature trail and for extra parking for their two schools.

Fast forward to August 2002, and Fairfax Center began construction on its property — destroying both the asphalt roadway and the Mulford School sign. The developer also piled several feet of dirt and rock on the driveway, making the remainder unusable to the Mulfords.

Furious, on Oct. 4, the Mulfords sought a legal injunction to prevent Fairfax Center from doing any further work there. But the court denied their petition because there was another legal course of action the Mulfords could take — namely, suing for monetary damages.

So that's what they did. Five days later, on Oct. 9, they filed a Motion for Judgment, seeking both compensatory and punitive damages totaling more than $800,000.

In the document, the Mulfords explained that "cars would pull onto the easement to get off of Old Centreville Road and thus not back up traffic." As for the roadway, they said the developer's construction activities had resulted in it being covered with 4-12 feet of dirt and rock.

"[The developer's] actions have obstructed, interfered with and destroyed [our] easement," alleged the Mulfords. They also stressed that "the Mulford Preschool and Horseback Riding" sign, which served as "a primary source of advertisement" was destroyed during the construction.

"The sign was destroyed during the prime time for preschool registration and horseback registration," wrote the Mulfords. As a result, they contended, the preschool lost an estimated $40,000 in revenue, and the riding school, about $5,600. They also noted that a new sign would set them back about $4,500, and repaving the road would cost approximately $35,000.

Overall, for Count I of their Motion for Judgment (Interference and Destruction of Property), the Mulfords sought a total of $335,100 ($250,000 for punishment and $85,100 for compensation). For Count II (Taking of Property), they asked for a cool $500,000 ($350,000 for punishment and $150,000 for compensation).

The latter count alleged that the developer's construction efforts, in effect, took the Mulfords' property for Fairfax Center's sole use and control — without the Mulfords' permission and without compensating them.

On Oct. 31, Fairfax Center filed a legal document called a Demurrer, asserting that the Mulfords failed to provide any facts in support of: 1. "The continued existence of an easement subsequent to the Mulfords' conveyance of the Route 28 access portion of that easement to VDOT; 2. A sign easement — or any other legal right to place a sign on [what was now] Fairfax Center's property; or 3. A claim that Fairfax Center's actions amount to a 'taking' of property."

On Dec. 20 in Circuit Court, Judge Ney ruled in favor of the developer regarding Count II (Taking of Property). But he took more time to consider Count I — in particular, the question of "whether a landowner is liable for the destruction of improvements and/or personal property located on an extinguished easement."

In his March 6 ruling, Ney noted that the Mulfords only alleged that the easement was given to them, in the first place, for "ingress and egress" (entering and exiting). "As Fairfax Center points out, however, these purposes no longer exist — as a result of the [Mulfords'] conveyance of the Route 28 access portion to VDOT," explained Ney.

He further stated that the Mulfords failed to make a case that the nature trail and parking of cars fell within the scope of their easement for entering and exiting. Furthermore, he wrote, although the Mulfords claimed their easement was still valid because VDOT only bought part of it, that's just not so.

In Virginia, wrote the judge, "when an ingress-egress easement no longer connects to a public road, the easement is extinguished." Therefore, since the Mulfords' easement no longer existed, Fairfax Center couldn't have destroyed it.

As for the roadway and sign on the easement, Ney concluded that they were both "fixtures annexed to the realty" and, therefore, property belonging to the landowner, Fairfax Center. Once the Mulfords sold part of the easement to VDOT, he ruled, they gave up their claim to both the roadway and the sign. Besides, he added, 15 years after that sale is an "unreasonable length of time" for the Mulfords to have waited before making such a claim.