The Piedmont Environmental Council v. Malawer t/a Piedmont Agricultural Academy Civil Action No. CL09401-01, 2010 Va. Cir. LEXIS 23
By: Robert J. Allen
In a January 28, 2010 letter opinion, the Circuit Court of Fauquier County (Parker, J.) ruled that the common law doctrine of merger is inapplicable to conservation easements. In 2006, the Piedmont Environmental Council ("PEC") granted a conservation easement to the Virginia Outdoors Foundation and immediately thereafter conveyed the real property to Martha Michael Malawer ("Ms. Malawer"). The conservation easement listed PEC as the grantor and also an additional grantee. PEC brought an action to enforce the conservation easement against Ms. Malawer's successor in interest who filed a plea in bar and demurrer challenging the easement. The property owner argued that PEC could not legally create the easement because, under the doctrine of merger, the holder of the fee simple interest and the easement cannot be the same person. When the ownership of the dominant and servient estate are vested in one owner, a traditional easement (e.g., right-of-way) is extinguished by operation of law. When one person, owns the fee and the easement, there is no longer a need for the easement. The court distinguished a conservation easement in which the parties intended to protect the scenic value of the real estate in perpetuity for the general public. The court held that ownership of the fee and the conservation easement in one person did not extinguish the purpose of the conservation easement. The court construed PEC's deed of gift of easement and concluded that the conservation easement was intended to be an easement in gross which was not subject to the common law analysis of merger.
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