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HomeMy WebLinkAboutSDP202300024 Correspondence 2023-03-28 (3)Scott I Kroner PLC Attorneys at Law Neal L. Walters Connor J.M. Childress Rebecca C. Hryvniak William J. Johnson Hope V. Payne Henry C. Young Melissa T. Marldewicz September 2, 2022 Albemarle County Community Development/Planning 401 McIntire Road Charlottesville, VA 22902 Attn: Bill Fritz RE: Marchant Street Improvement Dear Mr. Fritz: 418 East Water Street P.O.Box2737 Charlottesville, Virginia 22902 Phone: (434) 296-2161 Facsimile: (434) 293-2073 W. Stephen Scott, retired Robert J. Kroner, retired We represent 0 Marchant, LLC ("NOLA"), in connection with NOLA's acquisition and improvement of real property on Marchant Street, known as Parcel E (the "NOLA Parcel"). We understand that NOLA is in the process of requesting development approvals from Albemarle County for the development of the NOLA Parcel and that as part of any approved development NOLA would make repairs and improvements to an area adjacent to the NOLA Parcel that was previously dedicated for street purposes. NOLA has requested that we submit this letter on its behalf to set forth the basis on which NOLA has the right to make repairs and improvements to the adjoining area dedicated for street purposes. The NOLA Parcel adjoins a 50' strip of land which was dedicated for street purposes by Charlottesville Woolen Mills, Incorporated, as more particularly depicted on plat of William S. Roudabush, Jr. C.L.S. bearing date September 8,1973, of record in the Clerk's Office of the Circuit Court of the County of Albemarle, Virginia in Deed Book 542, page 568. The 50' strip of land was originally referred to as the "Entrance Road" and is now known as Marchant Street. Marchant Street is used by the NOLA Parcel to access Broadway St, a public right of way. A copy of the recorded plat referenced above is attached to this letter. It is our understanding that Albemarle County has not accepted, and does not intend to accept, Marchant Street into the County system, nor is the County maintaining the street. While the area has been dedicated for street purposes, no obligation to perform maintenance or repairs has been accepted by a public body, and the street remains private. A search of the land records revealed no easement maintenance agreement either granting private rights to make repairs or Scott I Kroner PLc Attorneys at Law Community Development/Planning September2,2022 Page 2 improvements or prohibiting repairs or improvements to the street by those who are benefitted by it. It is well -established law in the Commonwealth of Virginia that the beneficiary of an easement (the dominant estate) has the obligation to maintain the easement. Oney v. West Buena Vista Land Co., 52 S.E. 343, 344 (1905). In 1992, the Supreme Court of Virginia concluded that a dominant estate not only has obligation to maintain an easement but also has the right to improve an easement, stating that "the owner of a dominant estate has the right to make reasonable improvements to an easement, so long as the improvement does not unreasonably increase the burden upon the servient estate," and such improvement may include such things as "paving a roadway." See Hayes v. Aquia Marina, Inc., 243 Va. 255, 261, 414 S.E.2d 820, 823 (1992). Therefore, we believe that under applicable case law, NOLA has a right to maintain and improve the 50' area specifically dedicated for street purposes, including paving/repaving portions of it, as long as NOLA makes only reasonable improvements to the area dedicated for street purposes. We have enclosed copies of the Oney and Hayes decisions for your reference. We have highlighted relevant passages in each for ease of reference. Very truly yours, Connor J. Childress Enclosures eTATA TAX D Tz TAX t;w TDl'AL I ) p tp 1. �._ �•+ BCOX542 facf566 +wo�+ur • anw THIS DEED made this 16th day of November, 1973, by and between PAUL E. SANDRIDGE and JAMES H. WOODSON, deceased, by Emma Jane Woodson, administratrix, Partners trading as'S d W Roofing Company, parties of the first part, hereinafter referred to as Grantors, and PRESTON A. COINER and JULIE M. COINER, hue - band and wife, and RICHARD W. COINER and SUE W. COINER, husband and wife, parties of the second part, hereinafter referred to as Grantees, WHEREAS James H. Woodson died Intestate on the 23rd day of August , 1973 and Emma Jane Woodson qualified as admin- istratrix of the Estate of Jamea H. Woodson on the 29th day of August, 1973; and, WHEREAS, the parties of the first part desire to sell, and the parties of the second part desire to buy the property of the above -named partnership described below, W I T N E S S E T H, THAT FOR AND IN CONSIDERATION of the am of TWELVE THOUSAND FIVE HUNDRED DOLLARS ($12,500.00), cash in hand paid, the re- ceipt of which is hereby acknowledged, the Grantors do hereby GRANT, BARGAIN, SELL and CONVEY with GENERAL WARRANTY and ENGLISH COVENANTS of TITLE unto the said Preston A. Coiner and Julie M. Coiner, husband and wife, a one-half undivided interest as tenants by the entirety with rights of survivorship as at common law and notes tenants in common, in fee simple, and unto the said Richard W. Coiner and Sue W. Coiner, husband and wife, a one-half undi- vided interest as tenants by the entirety with rights of survivor- ship as at common law and not as .tenants in common, in fee simple, All that certain parcel of land together with all the appurtenances thereunto belonging, situated in the County of Albemarle, Virginia, lying immediately south of the C a O Railway right of way and fronting on the southeastern margin of. a 5D' strip dedicated for street purpose, being shown and described as Parcel E on a plat of W. S. Roudabush, Jr., C.L.S., bearing date 1 1' I 1 1 i I 1 i 1 1 boox542 reti567 September 8, 1973, which plat is attached to and recorded as part of this deed. The above property was conveyed to James H. Woodson and Paul E. Sandridge, partners trading as S s W Roofing Company, by deed of Cole E. Digges, III, and Margaret H. Digges, dated December 22, 1969, of record in the Clerk's Office of the Cir- cuit Court of Albemarle County, Virginia, in Deed Book 468, Page 165. WITNESS the following signatures and seals: BY: S 8 W ROOFING COMPANY (SEAL) Paul E. Sandradge (and ♦ ���y./ (p'_p4w �I,fJP•?ela'^r"ISEAL) James H Woo son, by Emma Jane Woodson, Administratrix STATE OF VIRGINIA COUNTY OF ALBEMARLE, to -wit: The foregoing instrument was acknowledged before me this it ✓ day of 19 w by Paul E. Sandridge, S 6 W RoofiMy cng oommission expires: Notary Puriie STATE OF VIRGINIA COUNTY OF ALBEMARLE, to -wit: •� The foregoing instrument was acknowledged before me this /s day of 1921 , by Emma Jane Woodson, Administratrix of thWlXstate of James H. Woodson, S 8 W Roofing Company commission expiresi Notary Public Iw SEPT. 8, 1973 IEW900h_ LT PHYSICAL SURVEY OF _ PARCEL "E" DESIGNATED AS PARCEL 7, ON TAX MAP 77A LOCATED SOUTH OF MARKET STREET ADJACENT TO C & 0 RAILAIAY ALBEMARLE COUNTY, VIRGINIA s/. S. RP.@9 !B . A CCR'. ND. � 5617.3 JAI 65S �5i 173lb) 76 .`9 Lw ��,. • . A A ROUDASUSH, JR. Rnfl(D LAND'JURYMR ARIA�nIIL ngnmu . arise: 1"a20' Me N0. _ . 1 1 eoar542 ?aE569 ^VIRGxhih: CLDCxncoxx couaz,J3 `"` III 211E D1<:S "OPFICC OP I�LDDMADLD' . This C was psasente8 to me in said office and with certificate M. ;annoxed admitted to record atTeSta sn i 1 1 11 Oney v. West Buena Vista Land Co, 113 Am.StRep. 1066,52 S.E. 343,104 Va. 580 (1905) 52 S.E. 343 104 Va. 580 ONEY et al. V. WEST BUENA VISTA LAND CO. et al. Supreme Court of Appeals of Virginia. Nov 23,1905. 1. Easements —Acquisition. An Owner platted land into lots, blocks, streets. A map showing that the streets were to beconnected with the streets of a city by means of a bridge to be erected by the owner was recorded. The owner offered to dedicate the bridge to the public but it was not accepted. He sold lots, the deeds referring to the map. He urged the existence of the bridge as an inducement to the purchasers. Held that the conveyances of lots carried with them an implied grant of die bridge as an easement to the property conveyed. 2. Same—Repa¢. A grantor of an easement is, in die absence of an agreement to the contrary, under no obligation to keep the same in repair, but this duty rests on those using the easement ]Ed. Note. —For cases in point, see vol. 17, Cent. Dig. liusements, § 117.] 3. Same. An owner platted land into lots, streets, etc., and recorded a map showing that the streets were to be connected with the streets of a city by means of a bridge to be erected by the owner. The existence of the bridge constituted the principal inducement for the purchase of lots. Hrld, that the purchasers of lots were bound to keep the bridge, constituting an easement to their property, in repair. 4. Same —Abandonment. The failure of the owner of an easement, bound to keep it in repair, to do so for an unreasonable length of time, is an abandonment of the easement; an abandonment being presumed on the owner doing or permitting an act to be done which is inconsistent with the future enjoyment of the right. S. Same. Owner; of property owned an easement consisting of a right in a bridge The bridge, on the flooring being removed, was useless, except for foot passengers. The bridge was built mainly of iron and steel, and was, with the exception of the Flooring, well preserved. "phe owners continued to use the bridge and insisted on their right to repair. HelA that they had not abandoned their right in the bridge; but they must repair it within a reasonable nine, or the owner of the structure might remove it. Appeal, from Circuit Court, Rockbridge County. Suit by J. L. Oney and another against the West Buena Vista Land Company and others. From a decree dismissing the bill, complainants appeal. Reversed. Hugh A. Wliltc, for appellants. E. Al. Pendleton, for appellees. CARDWN,U, ). During what is now commonly spoken of as the "boom" period, the West Buena Vista ]and Company, the owner of a tract of several hundred acres of land lying just across North river from, and west of, Buena Vista, a town then rapidly growing in population, and which afterwards became a city, desiring to enhance the value of its property and make sale of its land in town lots for building purposes, etc., laid the same off into lots, blocks, streets, alleys, parks, and other public places, and on the 23d day of September, 1890, placed a map or plat of said land, so divided, upon record in the clerk's office of the county court of Rockbridge county-, according to law. The idea of the Wtest Buena Vista land Company seems to have been to make its lands across the river from Buena Vista practically a part of that town, and to that end determined to build a bridge across the river connecting the prospective town of West Buena Vista with Bucna Vista, and this bridge across North river was shown on the map or plat, made and recorded as stated. The streets of West Buena Vista were to be connected continuously with the streets of Buena Vista by this bridge, and 1.exingmn and Moore streets, appearing on the map of \Vest Buena Vista, and which converge together at the west end of the bridge, form, with the bridge, a continuation of Twentieth street in Buena Vista at the cast end of the bridge. After recording the map showing the streets and bridge, the \Gist Buena Vista land Company proceeded to make sale of its lots, villa sites, etc., and among the sales it made was a mill, residence, and outbuildings, known as "Moore's Mill, " appearing on said map, to). L Oncy and his associates, on March 20, 1891, at the price of S6,000, a "boom" price according to the evidence in this record, and about twice as much as the property would have brought, but for the map of West Buena Vista showing the bridge across North river. This bridge, contemplated and contracted for in 1890, was well under way in construction when Oney and his associates bought the mill property, which was connected by open and convenient streets and alleys with the bridge and within a few yards of its west end, and was subsequently completed, extending not only across the river, but also over the railroad tracks of the furnace company, the Chesapeake & Ohio, and the Norfolk & Western Railway Companies, and 152 S.E. 3441 terminated in Sycamore (lwentieth) street, in Buena Vista, with the consent of these several companies; but the completion of the bridge was in accordance with the representations of the company in effecting sales of its lands. By the bridge "Moore's Mill" was brought within one-half mile of the business center of Buena Vista, while without it the distance was about two miles around by die county road and bridge below. It is admitted that this bridge was built as a passway "for the owners of the West Buena Vista Company, " and after its completion the public was permitted to use it, and it was used for both horse and foot passengers by those desiring to use it; and for a long time, while the couny bridge below was down, it was the only thoroughfare into Buena Vista from the western portion of the county; but there has never been any other acceptance of it as a highway by the count)' of Rockbridge or the city of Buena Vista. After many years of service to the public, but especially to the persons who had bought land of the \rest Buena Vista Company, and the owners of "Moore's Mill" in particular, the bridge became in need of repairs and unsafe, the flooring thereon having decayed and by reason of a complaint from the railroad companies the flooring over the railroads was removed, so as to avoid any danger to their traffic. This being the condition of the bridge, in order to continue it as a footway, the owners of "Moores Mill" and others took up a subscription among the public and raised a fund with which a stairway was built from the ground up to the floor of the bridge at the point from which the flooring had been removed back to the end of the bridge over the railroad tracks, whereby the bridge was made a passageway for pedestrians over North river, and has been used as such since. ]n May, 1904, while the bridge was being used in the way just stated, particularly by the residents on the West Buena Vista side of the river, the West Buena Vista Company, having disposed of all of its other property, made sale of this bridge with the view of dividing the proceeds• of sale among the stockholders of the company, and the purchaser thereof began to tear it down, whereupon J. L. Oney and Ella B. Agner, who had become the sole mvners of "Moore's Mill, " filed their bill in this cause and obtained a temporary injunction restraining the West Buena Vista Company and all others from removing the said bridge or interfering with its use by the public. In their bill the complainants set out the origin of the bridge, its use, etc., as hcrembefore stated, and charge that they and others similarly situated bought their property in West Buena Vista in good faith on the existence of the bridge as a most valuable casement to their property; that the removal of it would inflict a serious and irreparable injury to the complainants, by reason of the fact that they would then be without access to Buena Vista, save around by the old county bridge, a distance of two miles; that the West Buena Vista Company is insolvent and that complainants desire to repair and keep in repair the said bridge as an indispensable and valuable casement to their property, etc. By its answer the West Buena Vista Company admits that the map or plat exhibited with the bill was made and recorded in accordance with what is known as the "Plat Act" (Acts 1887-88, pp. 553, 554, c. 486 jVa. Code 1904, p. 1280, Q 2510al), that the bridge was used by every one who desired to use it, and that it was offered to the county and city as a public bridge; does not deny that complainants bought with reference to the bridge and would not have paid more than one-half as much for their property without the bridge, or bought it at all. While the answer denies that the company sold with reference to the map, the deeds it made to Oney and his associates for "Moore's hfill" show that it was referred to, and the proof is uncontradicted that the bridge was urged as the inducement to the purchasers of the company's prop".. Upon the hearing of the cause om the bill and answer and the proofs submitted on behalf of the respective parties, the circuit court dissolved the temporary injunction theretofore awarded the complainants and dismissed their bill, whereupon they obtained this appeal. While there was, unmistakably, an offer of appellee to dedicate the bridge in question to both the county of 12ockbridge and the city of Buena Vista as a part of a public highway, it is not claimcdat least, it is not shown— that it was in any manner accepted by either; but it is equally as certain from the facts proved that it was not only the purpose of appellee to dedicate die bridge to the public use, but that the bridge was urged as an inducement to appellants and others to purchase the company's lands, and that it was one of the most important, if not the principal, inducement to them to buy. It is true that neither the bridge nor any part of it was conveyed in the deed to appellants, or to any other purchasers of the company's lands; but the map showing the bridge was not only recorded as provided in the plat act, supra, but was referred to in the deeds made to appellants and others. Therefore the law implies a grant of the bridge as an easement to the property conveyed. But the rule is that the grantor or dedicator of an easement is generally under no obligation to make repairs, and that this duty rests upon those who use the easement, and if they fail to keep it in proper condition for the uses for which it was granted or dedicated they must suffer the resulting inconvenience. This rule is changed only where there is a special agreement or prescriptive fight to the contrary. 14 Cyc. 1209; 2 Min. Inst. 19; 2 Tuckei s Com. 7; 9 Am. & Eng Ency. L. (2d lid.) 80. There is nothing in this record to take the 152 S.E. 345] case out of the control of the general rule, so that, while appellants and others similarly situated acquired by their purchase of lands from appellee a right in this bridge as an easement incident to their property, the burden rests upon them to keep it in proper condition for the uses for which it was constructed; and a failure to do this for an unreasonable length of time would amount to an abandonment of the easement, as an abandonment will be presumed where the owner of the right does, or permits to be done, any act inconsistent with the future enjoyment of the right. 10 A. & F. $ncy. L. 435; Buntin v. Danville. 93 Vi 205, 24 S. E. 830: Nnrfnik v. Nottingham, 96 Va. 34. 30 S. E. 444,, Scott v. Moo , 98 Va. 668. 37 S. F. 342. 81 A m. St. Rep. 749. Nonuser of an easement, however, unaccompanied by proof of an intention to abandon it, is not sufficient. The evidence must be dear that there was the intention to abandon. See the authorities just cited. While the evidence shows that the bridge, since the flooring was taken up over the railroad tracks, Is absolutely useless except for foot passengers, it also shows that the structure, built mainly of iron and steel, is, with the exception of the flooring, well preserved, and the materials therein perfectly sound. Therefore, it cannot be said that it has become entirely useless, as appellee contends, as an easement to the property of appellants. Nor can it be said, under the circumstances, that it has been abandoned by the appellants. On the contrary, appellants have been all along and are now using the bridge, and insist upon their right to repair and restore it to a condition that will render it safe and useful for the purposes for which it was built and used for many years after its construction. It would, we think, be manifestly, unjust to permit appellee, after having used this bridge as an inducement to appellants and others to buy its property, and permitted Its use as stated, to remove it and thereby deprive these purchasers of a valuable and indispensable easement to their property. But we are further of opinion that, to entitle appellants to a continuing right or interest in this bridge as an easement, they should be required to restore it, within a reasonable time, to such condition as will render it safe and useful for the purposes for which it was constructed, and that, if this is not done, they should be regarded as having abandoned the easement, in which event appellee will be entitled to make such disposition of the materials in the structure as it may see fit 13 Cyc. 490; Boiling v Petersburg, 3 Sand. 573; Harrison v Parker, 6 Fast, 563. Therefore the decree appealed from will be reversed, the temporary injunction awarded in the cause reinstated, and the cause remanded to the circuit court with directions to put appellants upon the terms that, unless they repair, or cause to be repaired, the said bridge, putting it in a good and safe condition for the uses for which it was con strueted and formerly used, within a reasonable time, to be fixed by the said court in its decree, the injunction will stand dissolved, and their bill dismissed. Page 820 Hayes v. Aquin Marina, Inc., 243 Va. 255,414 S.B.2d 820 (1992) 414 S.E.2d 820 243 Va. 255 Robert C. HAYES, et al. AQUTA MARINA, INC., et al. Record No. 910874. Supreme Court of Virginia. Feb. 28,1992. [243 Va. 2561 H. Clark Leming, Gardsonville (Leming & Healy, on briefs), for appellants. Andrew). Lillis,)r., litchmond (George B. Wickham, Harold E. Greer, 111, Mays & Valentine, on brief), for appellees. [243 Va. 2551 Present: All the )uatices. [243 Va. 2561 STEPHFaNSON,,]ustiee. The principal issue in this appeal is whether an easement across the servient Page 821 estates will be overburdened by the proposed expanded use of the dominant estate Robert C. Hayes and others I (collectively, Hayes) brought a chancery suit against Aquia Marina, Inc., Wucen E. Gnegy, and Cynthia Gnegy (collectively, Gnegy). '- Hayes alleged, inter aha, that a proposed expansion of a marina located on Gnees land (the dominant estate or marina property) would overburden the [243 Va. 257] easement across I Iayes' s lands (the servient estates). Ilayes, therefore, sought to have the trial court enjoin the proposed expanded use of the dominant estate. The cause was referred to a commissioner in chancery. Following an one tenus hearing, and after taking a view of the subject properties, the commissioner filed a report containing the following findings: (1) a perpetual easement exists across the servient estates for ingress to and egress from the dominant estate; (2) the easement is not limited solely for domestic use, but may be used commercially by the marina and its customers and by Twat owners and their guests; (3) the proposed expansion of the marina from 84 to 280 boat slips is a reasonable use of the dominant estate; (4) the resulting increase in traffic over the easement will not change the type, only the degree, of use and will not overburden the easement and (5) paving the easement is reasonable and a proper means of maintenance. By a final decree, entered March 5, 1991, the trial court overruled all of Hayes's exceptions to the commissioner's report and confirmed the report in all respects Hayes appeals. We must view the evidence in the light most favorable to Gnegy, the prevailing party at trial. The marina property is a 2.58-acre tract situate on Aquia Creek in Stafford County. The casement is the sole means of land access to the marina property. The litigants predecessors in title entered into a written agreement, executed February 3, 1951, for "the establishment of a certain roadway or right of way beginning at the Northern terminus of State Highway No. 666, and terminating at the property division line between [the servient estates], and where [the dominant estate] adjoins the same on the North side thereof' and for "the continuation of said right of way" The agreement recited that "the State Department of Highways will be requested ... to take over into the State Highway System the present roadway beginning at the North terminus of said State highway No. 666, and leading through [the servient estates]." The roadway that was intended to be taken into the state highway system was "approximately something less than one-half mile in length." The "newly established private roadway" was "approximately 1,120 feet in length' and "fifteen feet wide along its entire distance." The agreement provided that the parties thereto "shall have an easement of right of way over the entire length [thereof]." [243 Va. 2581 The record indicates that the portion of the easement, beginning at the northern terminus of State Highway No. 666, became a part of the state highway system in 1962. The record also indicates that the "private roadway" is constructed of dirt and gravel. By 1959, three residential buildings and a wooden pier were located on the dominant estate The pier was approximately 30 feet long and contained about 10 boat slips. This small marina was operated commercially. Between 1961 and 1962, the current marina was constructed. This marina has been operated commercially for the general public from 1964 until the present. The marina consists of 84 boat slips, a travel lift station, 3 a public boat launch, and a gas dock. Boats and boat parts are sold at the Page 822 marina. Boats also are repaired on the marina property. In September 1989, the Board of Supervisors of Stafford County granted Gnegy a special use permit to expand the marina by increasing the number of boat slips to 280. After the proposed expansion, the marina will continue to provide the same services it has provided since 1964. 'there has never been a "traffic problem" with the easement. An expert witness on emergency services testified that there never had been a problem with access to the marina property and none was anticipated if the proposed expansion occurred. On weekends, a time of maximum use of the marina property; Gnegy anticipates that only 20 to 30 percent of the boat owners will make use of the marina. As a general rule, when an easement is created by grant or reservation and the instrument creating the easement does not limit the use to be made of it, the casement may be used for "any purpose to which the dominant estate may then, or in the future, reasonably be devoted." Cushman Cotporation v Raines, 204 la. 245, 253,129 S.E.2d 633, 639 (1963). Stated differently, an easement created by a general grant or reservation, without words limiting it many particular use of the dominant estate, is not affected by any reasonable change in the use of the dominant estate SA3dUgS Bank v. Rai I ae ,201 Va_ 718, 723,113 S.E.2d f�83_ 687 (1960) (citing Ribble, l minor on Real Property § 107, at 146 n. 2 (2d ed. 1928)). However, no use may be made of the easement which is different from that established at the time of its creation 1243 V a. 2591 and which imposes an additional burden upon the servient estate. Cushman Corporation, 204 Va. at 253, 129 S.R2d ar 639-40 1layes contends that, by using the phrase, "private roadway," in the easement agreement, the parties to the agreement intended to limit the use of the easement to domestic purposes, thereby prohibiting commercial uses.' Gnegy contends, on the other hand, that the agreement created an easement for access without limitation. The commissioner and the trial court adopted Gnegy's- contention When the agreement is read as a whole, it is dear that the phrase, "private roadway," was used to distinguish that portion of the easement that would not become a part of the state highway system from that portion of the easement that could be taken into the system. Thus, the phrase is descriptive, not restrictive. Consequently, we hold tbat the agreement creating the easement for access contains no terms of limitation upon the easement's use. Additionally, the record supports the conclusion that die operation of a marina is a use to which the dominant estate reasonably can be, and has been, devoted. ' I Iayes further contends that the proposed expansion of the marina will impose an additional and unreasonable burden upon the easement. Having alleged that the proposed expansion will impose an additional burden upon the easement, Hayes has the burden of proving this allegation. Holt v Holt; 174 Va. 120, 123, 5 S H�504, 505 (1939). A contention similar to the one advanced by I layes was presented in Cushman Corporation, supra. In Cushman Corporation, as in the present case, the instruments creating the easement contain no language limiting the easement's use 204 Va. at 253, 129 S.F, 2d .it 640. When the casement was established, the dominant estate, a 126.67-acre tract, was used as Page 823 farm and contained two single-family dwellings with appurtenant servant and tenant houses Id. at 252,129 SE..2d at 639. A controversy arose when 1243 Va. 260] the dominant owner proposed to subdivide the tract for residential and commercial uses. Id. at 249,129 S.E.2d at 637. The trial court limited the easement to its original uses. Id. at 247, 129 S.E.2d at 635. We reversed the ruling, stating, inter alia: The fact that the dominant estate is divided and a portion or portions conveyed away does not, in and of itself, mean that an additional burden is imposed upon the servient estate. The result may be that the degree of burden is increased, but that is not sufficient to deny use of the right of way to an owner of a portion so conveyed. Id. at 253, 129 S.E.2d at 640. (Emphasis added) Here, after weighing the evidence, both the commissioner and the trial court concluded that the proposed expansion would not unreasonably burden the easement. On appeal, a decree conf rain g a commissioner's report is presumed to be correct and will be affirmed unless plainly wrong. Bain v. Ram, 47 4 W 26 , 263, 360 REM 849, 851 (1987); Seemann v Seemann, 233 Va. 290, 293, 355 S.E.2d 884, 886 (1987). In the present rase, we cannot say that the trial courts conclusion is plainly wrong Indeed, we think that it is supported by the evidence and by well-eatablished principles of law Here, as in Cushman Corporation, the proposed expansion will not, "in and of itself," impose an "additional burden" upon the easement, even though the "degree of burden" may be increased. Therefore, assuming, without deciding, that an expanded use of the dominant estate could be of such degree as to impose an additional and unreasonable burden upon an easement, such is not the situation in the present case. Finally, I layes contends that Gnegy does not have the right to pave the easement. Hayes acknowledges, and we agree, that die owner of a dominant estate has a duty to maintain an easement. Pettus . Keeling, 232 V 483, 490, 352 S.E.2d 321, 326 (1987); v. West Buena Vista land Co., 104 Va. 580. 585,52 S.G. 343, 344 (1905). However, Hayes reasons that, because the owner of a dominant estate has a duty to maintain an easement, it follows that the owner does not have a right to improve the easement. We agree that there is a distinction between maintenance and improvement. See n gpmmq-y. Columbia Knoll Condo. Coss il, 231 Vs. 437, 344 S. l 912 (12,M). however, we do ]243 Va. 261] not agree that the owner of a dominant estate does not have the right to make reasonable improvements to an easement. Although we previously have not addressed the "improvement" issue, courts in other jurisdictions have held that the owner of a dominant estate has the right to make reasonable improvements to an easement, so long as the improvement does not unreasonably mcrease the burden upon the servient estate. Sec, e.g., &gmau_ v Kv] o=, 19 Mau%AppJCL 590. 4M h .E.2d 257 (1285); Glenn v. pool e, 2 hh,&AppJCL= 423 LUA 1030 (19M); Schmutzer v. Smith,679 S.W2d 453 enn..lpn.1984)„ Such improvement may include paving a roadway See, e.g., Stagman, supra; Sehmutzer, supra. Ordinarily, the reasonableness of the improvement is a question of fact G dl ter a Liv ri is, 297 Klass. 337, 340, 8 N.E.2d 921, 922 (1937). We adopt these principles of law. In the present case, the commissioner and the trial court found that the proposed paving of the roadway by Gnegy, under the existing facts and circumstances, is reasonable. We will affirm this finding; it is supported by the evidence and is notplainlywrong. Accordingly, the trial court's judgment will be Affirmed. I Tbc other complainants/appellants ate Irmgard R. flayea, Nathan I- Nendig, Charlotte pendig, G.K. Massic,Ir., Mary Massie, andlacyueline Davdx 21'6c Hoard of Supervisora of Stafford County initially was a party defendant but is not a part), in this appeal. 3 A "travel lift" is a dntice for moving boats out of the water for repairs. 4 Hayes also contends that, as it result of this allegedly ves[detive language, Gnegy, "at best, acquired a prescriptive easement" for the canning marina. In fact, Hayca endesnoons to concede that such a prescriptive easement was established. By making this concession, Hayea, relying upon McN�� , Kiag y,2$j Va. 400. 406, 377 &R.2d 430. 433 (198')), seeks to place on Gnegy the burden of showing that the proposed ehangc in use of the easement impoaea no additional burden on the aeraicat catatcs. We summarily reject I iayes's prescriptive casement theon. The record cunply does not support it. 5 Significantly, Hayes stated in oral argument that Gnegy had a "right to access the present-day marina."