Gregory v. Northam (ORDER) ( 2021 )

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building in the
City of Richmond on Thursday the 2nd day of September, 2021.
Present: All the Justices
William C. Gregory, Appellant,
against Record No. 201307
Circuit Court No. 20-2441
Ralph S. Northam, in his Official Capacity
as Governor of Virginia, et al., Appellees.
Upon an appeal from a judgment
rendered by the Circuit Court of the City of
Richmond.
In this case, we awarded William C. Gregory (Gregory) an appeal from a judgment of the
Circuit Court of the City of Richmond. In that judgment, the circuit court ruled that Gregory had
not articulated a legally viable cause of action in the complaint he filed seeking declaratory and
injunctive relief concerning the governor’s order to the Department of General Services to
remove the Robert E. Lee Monument in Richmond, Virginia (Lee Monument) from property
owned by the Commonwealth of Virginia. Upon consideration of the record, briefs, and
argument of counsel, for the reasons set forth below, the Court is of opinion that there is no
reversible error in the judgment.
In the relevant complaint before the circuit court, Gregory elaborates upon his lineage
and asserts that pursuant to the wills of Bettie F. Allen Gregory and Roger Gregory, and pursuant
to the wills of their heirs, he has inherited the rights of the “covenantees” of deeds signed by
Bettie and Roger Gregory in 1887 and 1890 (respectively, the 1887 Deed and the 1890 Deed),
which conveyed ownership of the Lee Monument and the circular parcel of land where it was
erected to the Commonwealth of Virginia. Gregory emphasizes a particular provision (the
provision) in the 1890 Deed, which states that:
The State of Virginia, party of the third part acting by and through the Governor
of the Commonwealth and pursuant to the terms and provisions of the Special
Statute herein before mentioned executes this instrument in token of her
acceptance of the gift and of her guarantee that she will hold said Statue and
pedestal and Circle of ground perpetually sacred to the Monumental purpose to
which they have been devoted and that she will faithfully guard it and
affectionately protect it.
Gregory asserts that, as an heir of Bettie and Roger Gregory, he has a legal right, based
upon the language in this provision of the 1890 Deed, to compel the Commonwealth to keep the
Lee Monument where it currently sits. He also claims that removal of the Lee Monument from
its current location would result in irreparable harm to him. As evidence of his claim of
irreparable harm, he describes his familial pride in the Lee Monument, which sits on property
previously owned by his ancestors.
Governor Ralph S. Northam (Governor Northam) and Joseph F. Damico, Director of the
Virginia Department of General Services (Director Damico), were named as defendants in
Gregory’s complaint. They filed a demurrer in response. In the demurrer, they assert that
Gregory held no enforceable property right that would entitle him to the relief he sought.
Specifically, Governor Northam and Director Damico explain that because Gregory did not
claim current title to any property neighboring the Lee Monument, the property interest he
claims, as authority for his right to prevent the Commonwealth from moving its monument,
would have to be based upon him being a beneficiary of an easement in gross. They contend that
the language in the 1890 Deed to the Commonwealth did not create an easement in gross, and
therefore Gregory’s claim should fail as a matter of law. Governor Northam and Director
Damico further assert that even if the 1890 Deed created an easement in gross, Gregory would
not have inherited that interest. Additionally, they aver that in any event a perpetual restriction
on the Commonwealth’s use of land, which it owns, would be unenforceable.
The circuit court, after considering the deeds and the ownership of land surrounding the
monument, concluded that the parties to the 1887 Deed and the 1890 Deed intended to create an
easement appurtenant, not an easement in gross. Consequently, the circuit court held that
Gregory failed to state a claim that he possessed the legal right to prohibit the Commonwealth
from moving its monument from its property. The circuit court sustained the demurrer and
dismissed Gregory’s claims, with prejudice.
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“[A]n easement in gross, sometimes called a personal easement, is an easement which is
not appurtenant to any estate in land, but in which the servitude is imposed upon land with the
benefit thereof running to an individual.” United States v. Blackman, 270 Va. 68, 77 (2005). On
the other hand, “an easement appurtenant ‘runs with the land,’ which is to say that the benefit
conveyed by or the duty owed under the easement passes with the ownership of the land to
which it is appurtenant.” Id.Gregory alleges that the Commonwealth, and therefore Governor Northam and Director
Damico, have legal and contractual obligations to him personally because of the provision in the
1890 Deed. Specifically, he claims that as a descendant of the signatories to the 1887 Deed and
the 1890 Deed, he has a claim of action against Governor Northam and Director Damico because
of his alleged right to ensure the Commonwealth fulfills its duty to hold the Lee Monument
“perpetually sacred,” pursuant to the terms of the 1890 Deed to the Commonwealth. The
property right Gregory attempts to assert can only be understood to be an easement in gross.
Notably, a court will never presume that an easement is an easement in gross; it must
plainly appear from the granting instrument or deed that the parties intended to create an
easement in gross. Prospect Dev. Co., Inc. v. Bershader, 258 Va. 75, 90 (1999). As we have
explained, “[i]t is the intent of the parties, . . . as gathered from the language of the easement
itself, considered in the light of the surrounding circumstances, . . . that controls a determination
as to whether an easement is appurtenant or gross.” Lester Coal Corp. v. Lester, 203 Va. 93, 98
(1961) (citing Hardy v. McCullough, 64 Va. (23 Gratt.) 251, 260 (1873) and Stephen Putney Co.
v. R.F. & P.R. Co., 116 Va. 211, 217 (1914)). Nevertheless, “if the language used attempts to
create a right which may violate an established rule of property law, or purports to grant
something which, in law, may not be granted, then effect cannot be given to the language, plain
though it may be.” Id. (citing Tardy v. Creasy, 81 Va. 553, 562 (1886)).
The granting instruments relied upon by Gregory, the 1887 Deed and the 1890 Deed, do
not plainly state an intent to create an easement in gross, and the circuit court did not err in
concluding that they do not do so. Cf. Blackman, 270 Va. at 73-74 (construing deed language
stating that “the [g]rantors . . . do hereby grant and convey to the [g]rantee . . . an easement in
gross restricting in perpetuity, in the manner hereinafter set forth, the use of the following
described tracts of land, together with the improvements erected thereon” as creating an
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easement in gross). For purposes of argument, we assume that at most, the parties to the 1887
Deed and 1890 Deed intended to create an easement appurtenant.
Not only did Gregory not claim an easement appurtenant, the facts in the record do not
support a finding that Gregory has any ownership interest in any land to which any benefit
conveyed by the deeds would be appurtenant. Thus, Gregory has no property right, related to the
Lee Monument, to enforce against the Commonwealth. As a result, the circuit court correctly
found that Gregory failed to articulate a legally viable cause of action against Governor Northam
and Director Damico, and it did not err in granting their demurrer and dismissing Gregory’s
claim with prejudice. *
Accordingly, we affirm the judgment of the Circuit Court of the City of Richmond and
any requests made for injunctive relief are hereby denied.
This order shall be published in the Virginia Reports and certified to the Circuit Court of
the City of Richmond.
A Copy,
Teste:
Acting Clerk
*
Further, in Taylor v. Northam, 300 Va. ___ (2021) (this day decided), this Court ruled
that any property interest that may have been created by the 1887 Deed or the provision in the
1890 Deed would be unenforceable against the Commonwealth.
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