IN THE SUPERIOR COURT OF THE VIRGIN Isl ANDS
DIVISION OF ST THOMAS AND ST JOHN
KAREN UNDERWOOD
'
)
(Charles A Kaplanek III)
)
Plaintiffs
)
CASE NO ST 95 (,V 00459
v
)
)
Action {or Declaratory Relief
BRUCE W STREIBICH
)
Preliminary and Permanent
Defendant,
)
Injunctivc Relief and Damages
m4
)
WARREN STRYKER and
)
MARGARET STRYKER
)
)
Intervcning Plaintiffs,
)
HQ
)
ARTHUR SCHMAUDER ELIZABETH
)
MCGUIRE and BLUE WATERS
)
Cite as 2024 VI Super 19
RETREAT LLC
)
}
Intervcning Defendants
)
)
_—__—__—_)
MICHAFL FITZSIMMONS ESQ
CAROL ANN RICH ESQ
Duensing 81. Casncr
5194 Dronningcns Gade, Ste 3
9800 Buccaneer Mall
At Hibiscus Alley
P O Box 6785
St Thomas V I 00802
St Thomas V
I 00804
Allzszvs/or Defendant
Attorneysfar Plamtgffand
Inter venmg Plamtg/fx
MATTHEW J DUENSING ESQ
G ADAM THOR? ESQ
Ducnsing & Casner
5194 Dronningcns (Edda, Ste 3
9800 BuLcaneer Mall
A1 Hibiscus Alley
P O Box 6785
St Thomas V I 00802
St Thomas V
I 00802
Atlarmyx for Defendant
Attorneys for Plamtgff
and Intervemng Plamlg/fv
' In I995 this action was brought by {119 original plainllflKaren Underwood (Underwood) On June 30 2016
Underwood deeded Parcel No 4 27 Lame Labor & Harmony wlnch i: the aubjecl ofihis land diapule Io her 50“
Charla A Kaplanek 111 (Kaplanek Ill) and on March 4 2022 the Court accepted Kaplanek III as Underwood 5
cuccessor and pany in interim
l'he namefihave bran med interchangeably lhroughom mm pmceedings and
filings thus all refeanLcs w Underwood as Plainliflalga "Apply (0 Kaplanek III as er successor
UndLrwnod & Strykcr v Stnzblch W a]
(.115 as 2024 VI Super 19
Case NO ST 1995 CV 0045‘)
Memorandum Opinion
MARK D HODGE ESQ
Hodge & Hodge
1340 Fdameberg
St Ihomas V1 00802
Attorneys for Inlcrvcmng Defendanls
CARTY, Senior Sitting Judge
MEMORAND! M QPINION
(Filed Apri126 2024)
111
UPON REMAND from the Supreme Court 01 the Virgin Islands this matter came on for a
bench tria1 on April 3"I 4‘“ and 5‘h 2023 This cabe arises out 01 a land dispute regarding a right
01 way located at Estate Tabor & Hannony Nos
5 & 6 Last End Quamr St Thomas Virgin
Island: On March 23, 2021
the Supreme Court affirmed the trial coun s ruling that there is an
implied easement over Faisal No 4 26 The case was remanded back fot the determination of
the location and scope of the easement on the 1957 Public Works map situated over tour (4) one
acre parcels of 1and On April 4 2023 a site visit was conducted at Parcel No 4 Estate Tabor &
Harmony with all parties present and testimony taken from expert surveyors
Ryan Wisehart
(Wischatt) of Brian Moseley & Associates, Inc
on behalf of the Plaintiff and Intervening
Plaintiffs (eollectively
P1aintiffs ) and Harry Gautiloff (Gauriloft) of Marvin Beming &
Associates on behalf of the Defendant and Intervening Defendants(colleetive1y
Defendants
)
112
Prior to the site visit, the suweyors were Lharged with the responsibility at identifying the
precise 10Lation by metes and bounds 01 the easement as illustrated on FWD B9 31 T57 map
dated February 1958 (referred to as
T57 ) and subdivision plan filed with the Govemment 0f
the Virgin Islands by the then landowners, Marshall B
Diersscn and Sidney C
Dicrssen (the
Dierssens) Each surveyor was required to travel to the site, without involvement of any of the
parties and at separate times
(a place color coded flags depicting the exact location of the
easement based on their expertise
113
The Plaintiffs contend there is an implied easement on T57 which allows for vehicular
access to theii properties situated at Parcel Nos 4 27 and Parcel 4 28 and Drawing No 3654 3
as produced by their expert suiveyor witness has properly defined the boundaries of the
2
Underwond & Stryker v Slrulmh, e! a]
Cue as 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
easement Defendants euntend the T57 R O W no longer exists because portions thereof were
deeded away in 1961 and 1962 and the owners 01 Parcel No: 4 22A 4 228 and 4 26 have not
granted
Plaintiffs permission to traverse upon their private driveway
to access
Plaintiff:
properties
Detenddnts further contend the Dierssens did not construct the existing concrete
paved road as they had no intention to create a road as they did with the three private road
systems throughout the subdivision
Thus Plaintiffs must therefore access their properties from
the lower private road
1|4
Incorporated in this memorandum opinion are the findings at tact and LonL1Ll510nS of law
based on the evidence adduced at trial evidence on the record
stipulations by the parties the
procedural Iecord exhibits and all additional evidence deemed pertinent
l'he single mandate
before this Court i: to establish the location and the scope of the implied easement as depicted on
the T57map
situated on Parcel Nos
4 26
4 27
and 4 28
Estate Tabor & Harmony
As
explained below, this Court finds the implied casement as depicted on T57 lies across Parcel
Nos 4 22A 4 22B 4 26 4 27 and terminates at the boundary perimetet of Parcel No 4 28, in
favor of the Plaintiifs Due to multiple conveyances over several decades and tor the purpose at
clarity
it is necessary for this Court to start by illustrating the property tramfers from 1958 until
present
FINDINGS OF FACT
A Conveyances of Parcels
1
On June 6
1956
Marshall and Sidney Diersscn purchased Parcel No 4 Estate Tabor &
Hannony Nos 5 & 6 East End Quarter
St Thomas Virgin Islands consisting of 110 58
undeveloped acres Mama Exhibit 1 (Map A 3 62 T45) Mast” Exhzbzt 7 SlreLbzch v
Underwood 74 V I 492 (2021)
2
In February 1958
the Diersscm fi1ed subdivision plan FWD B9 31 T57( T57 ) with 19
lots consisting of Parcel No 4 18 through Parcel No 4 36 Master Exhlblt 2 Stietblc/l at
492
3
The Estate Tabor & Harmony subdivision has one main mad which branches off into three
3
Umicrwrmd & Sirykar v Stalin}! LI ((1
cm as 2024 VI Super 19
Cue Ne SI
1995 CV 00459
Memorandum Opinion
private road systems which were fully established in 1958 such that the Dierssens were
able to commence property sales
The T57 map depicts each road as a
private road
drawn with detailed metes and bnuuds Masterlxhtbtt 2
4
During the development of Parcel No 4, the Dierssens also designated a particular area as
the right at way as depleted on T57 (the T57 R O W
) which traversed and impacted
Parcel Nos 4 22 4 26 4 27 and 4 28 Parcel No 4 26 PareelNo 4 27 and Parcel No 4
28 cue abutting parcels on a hillside facing the Atlantic Ocean Parcel No 4 22 was
subdivided into 4 22A and 4 22B with the entrance off the main road being situated on
Parcel No 4 22B
Parcel No 4 22B abuts Parcel No 4 25 which is adjoined to Parcel No
4 26 Mastcr Exhlblt 2
i
Parcel No 4 22A
5
Parcel No 4 22 consisted of2 42 acres which was subdivided inn: Parcel No 4 22A
1 03
acres pursuant to FWD No F9 741
F61 (T61) and Parcel No 4 22B
consisting of 1 00
awe
puxsudnt to FWD No C0 47 T62 (T62) This division left a remainder of 39 acre
Maxie; Exhibit 2 Master Exhibit 3 Master Exhzb1t4
6
On May 25
1961
the Dierssens registered FWD Ne F9 741 T61 which defined the parcel
boundaries of 4 22A
'1 W0 portions of the T57 R O W
are incorporated within the
boundaries at 4 22A
(with one portion being totally enwmpdssed 1n 4-22A) as shown on
Defendants
Surveyor 5 map ovulay
Master Exhibit 3 Maslcr Exhibit 46 ID 102 ((zuarllafl
Survey Report)
7
On March
15, 1962
the Dierssens conveyed Parcel No
4 22A to Robert F
Mcrwin
Trustee for the Richard A Merwin Trust (Trust No l)
Masts] Evhtblt 10
8
The deed as well as all other deeds from the Dicrssens contained restrictions and covenants,
including the following language
TOGETHER with all the appurtenances and all the cst1tc title tights and
interest 01 the parties ofthe first part, their heirs and assigns, in and to said
premises including a perpetual easement to the party of the second part his
heirs and assigns, to run with the land over all roads in Parcel No 4 which
4
Undemtoad & blryker v YIruhzc/I, ct a!
Cue us 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
are now in existence or Shall hereafter be Lunstructcd for ingress to and egress
fi‘mn the Public Road or otherwise and subject to the following restrictions ’
(i)
Easements and rights of way are hereby expressly reserved
tor the
creation,
construction and maintenance of utilities, such as
gas,
water,
telephone telegraph, electricity storm drains and land drains public private
and quasi puhiic as well as for any public private or quasi public utility or
function deemed necessary aud/or expedient by the parties of the first part for
the public health and welfare
Such easements and rights of way shall be
confined to the rear five (5) feet ofevery lot and five (5) feet along the side of
every building plot and along every street of the subdivision
The parties of
the first part hereby reserve the exclusive right to dedicate the roads, street:
and avenues abutting the aforesaid property and running through Parcel No 4
to public use;"
(i)
The common roadways shall be constructed by and at the cost and
expense of the Parties orthe first Part in a proper manner with adequate ditches,
drains and culvelts to provide proper drainage
Thereafter the parties of the
first pan
the party of the second
part
and
111 subsequent purchasers of
Parcel No 4 Estate Tabor and Harmony shall maintain the road upon which
their property abuts in Parcel No 4 in reasonably good condition on a pro rate
expense basis according to the acreage of the sub divided residential parcels
abutting on said mad, until such time as the Government accepts a dedication of
said road ”
(k)
The eovenants restrictions easements, and rights nf way set foxth above
shall be included in all subsequent deeds of subdivision of Parcel No 4 Estate
Tabor & Harmony
9
On July 3 2007 Richard A Merwin (successor trustee) individually and the Richard
A Merwin Trust (Trust No
1) transferred Parcel No 4 22A to Bruce W Streibich
Eli/abeth B
Streibich, and John K Streibieh Maxim Exh1b1t29
10 On October 26
201 1
Bruce W
Streibich
Elizabeth B
Streibich
and John K
Streibieh cunvcyed Parcel No 4 22A to Bruce W Stteibich Master Exhzbzt 31
1 1
T61 depicts the T57 R O W as an
estate road
that follows a similar path including
the second switchbaek as shown an T57 Master Exhibit 3
ii Parcel No 4 2213
12
On August 29 1962 the Dierssens registered PWD N0 C9 47 T62( T62
) which
5
Urza'Lrwoml & S'lrykcr v SIrLtlm/I Ll Ill
Cm as 2024 V1 Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
created and defined parcel buundarics 01 4 228 Masler Exhzbzt 4
13 On November 9, 1962, the Dicrsscns conveyed Parcel No 4 228,
l 00 acre,
pursuant to T62 (not including the R O W ) to Fhomas 0 Cook and Nancy 1-!
Cook
The deed specifically states
[t]he whole compn'sing an area of1 0 U S
Acre not including the fight of way
Mas!" Exhtblt 12
14 On June 9 1964 the Cooks nonveyed Parcel No 4 228 by warranty deed to
Arthur E Schmauder and Violet Schmauder M(lAlLr Exhlbxt 14
15 On July 26 1985 Violet E Schmauder conveyed Parcel No 4 22B to the Violet
E SLhmaudcr Trust by quitclaim dead 2 Master Exhzbzt IR
16 On August 20 2007 Arthur R Schmauder Trustee of the Violet E Schmauder Trust
conveyed Parcel No 4 228 by fiduciary deed to the Schmauder beneficiaries and a limited
liability company Verna C Ruan Arthur R Schmaudcr Elizabeth A McGuire (Trust
Beneficiaries) and Blue Wake“ Retreat LLC
Master I xhlbtt 3(I
17
Blue Waters Retreat LLC consists ofa building that sits upon Parcel No 4 228
Aprrl 5
2023 Trans pp 6 8
18
T62 depicts the T57 R O W as the ‘ Secondary Estate Road
and represents a similar path of
the T57 R O W Master Exhllnt 4
19
The deeds for Parce1 No 4 22A (incorporating T61) and Parcel No 4 228 (incorporating
T62) did not expressly reference T57 because T61 and T62 depicted the metes and bounds
only for the purpose ofthc subdivided Parcel No 4 22 However T62 implicated T57 by
the notation
not including the R O W
shown as the
secondary estate mad
The only
R O W in existence in 1962 was the T57 R O W
20
T61 depicted an area designated as
Estate Road
extending from Parce1No 4 228 through
Parcel No 4 26 across Parcel No 4 27 and ending at Parcel No 4 28
21
T62 depicted the same area as
Secondary Estate Road
extending from Parcel No 4 228
through Parcel No 4 26 across Parcel No 4 27 and ending at Parcel No 4 28
22 The Dicrrsens executed both deeds with maps T61 and T62 that depicted similar but not
1 The record is silent a: to what transpired between 1964 and 1985 as lhere i: no evidence 01's lramfcr from Arthur
E Schmauder and Violet SLhmauder Io Violet E Schmauder
6
Underwoozldi Stalker v Slrerhzch, c111]
cm as 2024 V1 Super 19
Case No ST 1995 CV 00459
Mcmurandum Opinion
exact paths to the T57 R O W d5 it was the Dierssens intentions to grant access to Parcel
Nos 4 22A 4 26 4 27 and 4 28 Withuut the T57 easement Parcel No 4 22A would have
been landlocked
23 Therefore the T61 and T62 maps are relevant only to depict the sub division ofPareel
No 4 22
iii
Parcel No 4 25
24
On March 2|
1958 the Dicrssens conveyed Parcel No 4 25 consisting of] 31 acres to
Robert Mesa by warranty deed, and incorporated by reference T57 Mama Exhzbtt 8
25
On May 23 1974 Verna C Ruan purchased Parcel No 4 25 3
26
Arthur R Schlnauder and Eli7abeth A McGuire inherited Parcel N0 4 25 from an
Adjudication dated January 24 2017 OFthe Esmu 9f Verna Clark Rum; S F 2016 PB
00069
27
Ofpanicular note, Parcel No 4 25 is not affected by the T57 easement as it shares a point,
not a boundary line in common with T57
Unlike the other parcels there is no overlapping
o: eneroachmcnt 01 T57 over Parcel No 4 25, therefore no rights of the property owners axe
affected Sac Master Exhzbzt 46 ID 101 to 1D [04
iv
Parcel No 4 26
28
On November 9 1962 the Dicrssens conveyed Parcc1 N0 4 26, by warranty deed,
conaiating of l 14 acres to Noman Brilliant and June Brilliant (the Bfilliants) and
incorporated by reference map T57
Master Exhibit 11
29
On August 15 1969 the Brilliants Lonvcyed by wan‘anty deed Paree1 N0 4 26 to Sylvia
B Weaver (Weaver), and incorporated by reference map T57 Master Exhllnt 15
30
On August 6, 1981 Weaver conveyed by warranty deed Parcel No 4 2610 Brentcm E
Battles and Susan Luge Battles (the Battles)
This deed provided Inter aha, the following
3 Verna C Ruan died on June 23 2015 and her estate Was admitted to probate on November 7 2016 Probate
court Iccords renew that <he purchased Pdrce1 No 4 25 on May 23
1974 from Mania Paiewnnsky and Hulda
I’fliewonsky
The record is ailcnt however regarding transfers or conveyances between 1958 and 1974 beIchn
Robert Moss and other grantees
it my prior to the P1iewonskys ownership and until Verna Ruan 8 purchase on
May 23
1974
92:11:01”: 14/ Verna Clark Rum! SI 2016 PB 00069 and Adjudication entered on January 24
2017 ins 1 &2
7
UndLmoac/& Stryker v Strubmh Ltd]
CITE us 2024 VI Super 19
Case No S'I 1995 CV 00459
Memorandum Opinion
language
SUBJECT HOWEVER
to the covenants
restrictions, easements
rights of
way and agreements set forth in or attached to a deed dated November 9 1962
from Marshall B
Dierssen to Neiman Brilliant and June Brilliant recorded
November 9 1962 in volume 6 L page 162 N0 3059 in said office and to the
easements and rights at way or shown on said Drawing No B9 31 T57
Master Exhzblt 16
'11
Afier purchasing Parcel No 4 26 the Battles construnted the house in the 19805 that
presently sits on the piopeny afler registering the building plans with the Virgin Islands
Department of Planning, and Natural Resources Defendam s Lxhlbzt 1 (butldmg plans)
Aprll 5 2023 Trims pp 24 27
32 The Battles used the T57 easement across Parcel Nos 4 22B and 4 22A to access their
property to construct the home that now exists and did so comistently during their
ownership of Parcel No 4 26
33 On August 17 1989 the Battles sold Parcel No 4 26 to Bruce and Katharine Streibich ‘
which deed incorporated by reference D9 4345 1 88 Master Exhzbzl 2] April 5 2023
Trans pp 24 25
34 The surveyor 5 report containing the boundary description on T88 provides the following
xeference
[h]earings are correlated with FWD N0 B9 31 T57
Master Exhszt 21
35 T88 depicts a wrridor marked by dotted lines (as opposed to estate roads which are
drawn with solid hum) labeled as 20 easement to Parcels 4 27 and 4 28 and with the
notations that din road is within this easement
and
exit to public road bee [T57]
Snelbtch 74 V I 493 494 (2021) Mama Exhibit 5
36
The marked corridor is in a slightly dittcrent location from the R O W depicted on T57
Slnzblch 74 V I at 494 Master Exhibit 2 Mast” Exhlblt 5
37 Although the 1989 conveyance incorporated T88 all piior conveyances were subject to the
easements of record through the Chain 01 title odercel No 4 26 and specifically
‘ At the time of filing Ihe laWSult in 1995 Bmce and Katharine Slreibieh were the owners ufPaicul No 4 26 but
since then Katharine passed away on I cbruary 28 1999
8
Underwood & Strykcr v Struhtch er a1
Cm as 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
referenced T57 Streibich s T88 map boundary description survey also specifically
referenced T57 therefore, Streibich was on record notice of the T57 20ft wide easement
38 Every purchaser or grantee of Parcel No 4 26 the Brilliants Weaver the Battles and
the Streibichs all had record notice that Parcel No 4 26 was subject to the right of way
as shown and described on T57
39 Throughout the Battles use and the Streihichs subsequent use of the same easement across
Parcel Nos 4 223 And 4 22A Streibich utilized the same implied easement and continues
to do so to this day Neither the Battles nor the Streibichs needed permission from the
property owners 0t Parcel Nos 4 22A or 4 22B to use the easement
v
Parcel No 4 27
40
Sidney C Diersscn died on June 29 1965 Two and a halfyears later Marshall B Dicrssen
died on January 18 1968 5
41
On March 30 1990 Macdonald Budd Administrator d b n c I a 6 ofthc Estate q/Manhall
B I)zerssen and the Estate q/Stdney C Drawer! appointed by the Probate Court of
Farmington, Connecticut, executed an Administrator’s Deed whieh conveyed Parcel No 4
27 consisting of 1 15 acres incorporating by reterence T57, to Susan Laura Luge The
Administrator 5 Deed provided, mter aim the fallowing language
TOGETHER WITH all right title and interest of Grantur to use ofthe
estate roads and lights of way shown 0fthe aforesaid survey for access for
ingress and egress”
SUBJECT HOWEVER to easements restrictions covenants and
agreements of record ” Marta I xhzbzt 22
5 As it pertains to Parcel No 4 27 the record is silent as to my activity during the 22 year period between 1968 and
1990
‘5 Adminmrator d [7 n L 1 :1 refer: to de bums non, (um leslumemo ammo
When an administrator is appointed to
succeed another who has 160 the estate partially unsettled he is said to be granted
administration d2 hams mm
that is oflhe gawk not already adminiflered Black 5 Law Dictionary (2“d Ed ) hugs //thelawdictionng org/
Cum Immmemv annex) is defined as with the will annexed A term applied to fldmlniSIl’aliOflgranted where a
lestatnr make: an incomplete will, without naming any executors, or where he names incapable peraons, or
where the exeeutura named refuse Io act 13139163 Law Dictionary (2”I Ed ),
him: //thelawdittionag orchum testamenlo annexe l
9
Underwood & S‘lIy/tcr v Strum]: (.111,
Cm as 2024 V1 Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
42 On Scptcmbet 16 1992 Susan Laura Lugo LOnVCyCd by quitclaim deed Parcel No 4 27 to
Susan Laura Luge (Luge) and George H T Dudley (Dudley) and incorporated by
reference FWD No D9 4961 T90 Marta Exhlblt 23
43 On January 23 1994 Lugn and Dudley conveyed by warranty deed Parcel No 4 27 to
Karen Renee Underwood incorporating by reference FWD No D9 4961 T90, which
deed states in pertinent part
TOGETHER W11 H all appurtenances thereumo belonging and all the
estate, title, and rights ofthe Grantors in and to said premises;"
‘ SUBJECT, HOWEVER to the covenants rcsttictions and easements of
record
Master Exhzbzr 24
44 The warranty dead from I ugo and Dudley to Underwood expressly conveys a11right title
and interest nfGIantor to use 0fthe estate roads and rights of way shown on the atoresdid
survey for ingress and egress
This conveys any right or interest that already benefits the
property; it does not create a new one
Stretblch 74 V l 504 fn 10
45 FWD T90 depicts a 203 wide ‘casement to public road
that runs across both Panel No 4
26 and Parcel No 4 27 and terminates at the boundary of Parcel No 4 28 A surveyor s
notation at the top left comer 0fthe 20flwide easement on T90 states
see B9 "5 l T57
Thele is also an arrow pointing to the approximate location ufthc 20h wide easement
toward; Parcel No 4 28 This further supports the Plaintiffs contention that the Dicrsaens
intended to create an easement over Parcel No 4 26 to allow Underwood to freely
travelse the T57 casement
Master Exhszl 6
46
Hence, the Diersscns‘ rights, title, and interest in the easement were t1 ansfet red to
Underwood when she acquired the property and Underwood had record notice that Parcel
No 4 27 was subject to the right of way shown and described on T90
47
On June 30 2016 Karen Renee Underwood conveyed by quitclaim deed Parcel No 4 27
10
Und£m00l1& Szrykcr v Slrclbxch a u!
Cm as 2024 VI Super 19
(Ase No SI
1995 LV 00459
Memorandum Opinion
to her son, Charles Anthony delanek III and incorporated by reference T90 Master
Exhzbzl 32
48 Although the 1992 1994 and 2016 deeds t0 Parcel 4 27 did not directly reference T57 the
1990 Administrator 3 Deed did and with the notations on T90 referencing T57 Underwond
had record notice of the easement across Panel Nos 4 26 and 4 27
vi Parcel No 4 28
49 On April 23 1963 the Dicrsscns conveyed Parcel No 4 28 Lonsisting of] 08 acres to
George and Jean Vander May by warranty deed Mmter ['Xhlblt 13
50 On January 6 1987 the Vander Mays conveyed Parcel No 4 28 by warranty deed to Noreen
Fretz and incorporated T57 by rctcrence Master Exh1b1220
51 On March 30 2001 Noreen Fret: a/k/a Noreen McCarthy conveyed Parcel No 4 28 to
Warren Stryker and Margaret Strykcr and incorporated T57 by reterence
Master Exhxbzt
25
52 A11 conveyances from 1963 to present incorporated T57 by reference Therefore, the Strkycrs
have been placed on record notice ofthc casement across Parcel Nos 4 26 and 4 27
terminating at the boundary perimeter 01 their pmperty, Parcel No 4 28
3
Procedural History
53
On June 20 1995 Karen Underwood filed suit in the Superior Coun [ofthe Virgin Islands]
requesting that the court declare that she had an easement over the alleged dirt road over
Parcel No 4 26
Vargficd Comp] (Jum 20 [995) Stretbtcll at 494
54 Underwood Hated four causes ofaction that she claimed she is entitled to (1) an express
easement, (2) an easement by prescription (3) an easement by estoppcl and (4) an easement
by implication Comp! pp 6 7
55 In her count asserting rights to an easement by implication
Underwood argued that she
has acquhed a nght to use the existing [dirt road] by implication based upon the references in
l l
U71dLrwnod& AlrykLrv Strains}! Ll a!
Cm as 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
the deeds t0 [T57] showing a road and based upon the public policy ofavoiding the
economic waste that would occur ifshe were required to create a road in exact conformance
with that depicted on [T57] rather than using the road currently in existence
’ Lomplamt
part: 22 23
Strelbzch 74 VI at 509
56 Streibich filed an Answer on August 18, 1995 followed by several motions over a period at
time Strublch at 494
57 On May 14 2002 Warren and Margaret Strykcr owners ofParcel No 4 28 moved to
intervene in this matter and adopted all pleadings and allegations filed by Underwuud
[ntartcmng Camp! (May 14 2002) Strelbtch 74 V1 at 494 95
58
The Strykers’ motion to intervene was granted and by incorporating Undciwood s
allegations, the Strykas asserted a claim to the same easement and further presented the
tollowing six causes ofaction (1) an injunction prohibiting Streibich from preventing their
use ofthe easement (2) trespass (3) nuisance (4) slander oftitlc (5) interference with a
contractual relation, and (6) interference with prnspective wntractual relations
Complaint m Inlcrthton pp 3 5
59
[n the memorandum opinion filed on February 25 2019, the Superior Court ruled on a
motion for summary Judgment in favor of Plaintiff Underwood preventing Defendant
Strcibich from blocking Underwood s acuess across the existing dirt road The Superior
Court held an implied casement exists over Parcel No 4 2b, to the benefit ofthe owners at
Parcel Nos 4 27 and 4 28
60 On appeal the Supreme Conn of the Virgin Islands found that only two (2) express
easements were created by the deed language (i) a utilities easement over the rear portion
of each parcel and (ii) a roads easement held by all subdivision property owners to traverse
the
roads
in Estate labor 84 Hannnny that had been constructed by the Dierssens Strelblch
74 V I at 502
61 The Supreme Court held there is no express easement over Parcel No 4 26 and affirmed the
trial court S ruling that there is an implied easement over Parcel No 4 26
62 An implied easement exists when the gramme intended to create a servitude but neglected to
12
Um/Lrwvml & S‘Iryker v Slrubzch a (ll
Cite as 2024 VI Super 19
C1se No ST 1995 CV 00459
Memorandum Opinion
do so expressly Strubzch 74 V I at 504
()3 An implied easement was created by reference to the maps that were incorporated into the
deeds
64 Plaintiffs determined there was no further need to pursue their original claims for
casement by necessity easement by prescription, or casement by estoppcl due to the
Supreme Court 5 rulinfgy therefore abandoned those claims
65 On September 27 2022 the Strykcrx by stipulatmn, dismissed counts 2 6 trespass nuisance
slander of title intericrcnce with a contractual relation, and interference with prospective
contractual rclatinns
66 Intervcning Defendants Anhur Sehmauder Elizabeth McGuire and Blue Waters Realty
LLC title holders of Parcel Nos 4 22B and 4 25 did not become parties to this lawsuit
until March 7 2022 when the Court 3 order granting their renewed motion to intervene was
entered on the docket
67 Intervening Defendants were initially denied intervention based on their incorrect theury that
they have a legally protected interest in preventing the use of an easement beeause it would
increase traffic flow
68 A bench trial was conducted from April 3 2023
April 5 2023
Order dated lanuary 26 2023
69 On April 4 2023 a site visit was conducted to view the affected properties ineluding Parcel
Nos 4 22A and 4 223 To ensure a comprehensive understanding ofthe estate, a convoy
consisting of court personnel and interested parties drove across all roadways starting fi'mn
the main road onto all three (‘4) roadways of Estate Tabor & Harmony until all attendees
mnverged at the entrance of4 22B to begin the walk uphill and across the existing concrete
pavement and dirt road until aITiving at Parcel No 4 28
70 Master Exhibits 1
32 36 37 42 44 were stipulated 10 by the parties for admission
71
Several other exhibits were also admitted into evidence at trial
72 Photographs were taken by 3 Superior Court marshal however due to camera malfunction
the pictures were lost and the Cum granted all parties the option of uploading their pictures of
the site visit in a photo log
13
UmILr'waod& Slrykcr v S‘iruhlch, Lt ((1
C116 :15 2024 VI Super 19
Case No S]
1995 CV 00459
Memorandum Opinion
C
Estate Tabor & Harmony Subdivision
73 There is one main road that leads from the entrance ofthe subdivision by two (2) stone
pillars and continues down to the bottom of the hill with other private roads branching off into
difi‘etent directions ”Phi: road is the only one by which people can access the Estate Tabor
& Harmony subdivision (the “main maid")7
Master bxhlbll 2
74
T57 shows three roads, laheled as private road and drawn with detailed metes and
bounds
’ Master Exhibit 2 Strelblch 74 V I 31492
75 The private road that branches off to the right forms the lower parcel boundary of Parcel Nos
4 26 4 27, and 4 28 (the
lower road
) and ends in a turnaround ’( the lower road
turnaround") at Parcel No 4 29 Master Exhibit 2
76
T57 also shows a marked passage rctcrred to as R O W
which has no metes or bounds or
other descriptors
Mast” Exhibit 2 Stretbtch 74 V I at 492 See also April 4 2023 Trans
pp 60 62 (Wzsehart Indicating lOCtlllDflofsouthcm boundary and confirming T57 R 0 W
straddles boundary belweuz Parcel Nos 4 22A and 4 26)
77 The area designated as the right
0 f way 0 n
F5 7 begins by branching oft from the
m aim r cad
appioximately 75 feet from the nonthwest comer of the area designated
Parcel
4 22
in T57 and [trisects] that area then it continues along the boundary line between the
area designated
Parcel 4 22 ’ and Parcel 4 26 (approximately half in each), then through
PdrcelNo 4 26 into Parcel No 4 27 [terminating at Parcel No 4 28] Masai Exhibit 46
ID 000094 {(Jeographlc Background) Mavter Fxhlblt 4 (T62 Map showing the [61/T62
4 22A and 4 228 access as being from [he Mam Estate Road ) Master [xhlbzt 48 p 2
para 1 (Parcel 4 22 Mm not subdlwded until [961)
78
T57 establishes that the R O W is separate from the system of estate roads and rather than
form the boundaries of parcels it burdens individual parcels
Strezbzch 74 V I 503
79
The alleged dirt road is not located within the R O W shown on 157
Strezbtch 74 V I
7 The
main
private road is not a formal label There are no formal labels for the road: in Estate Tabor & Harmony
See Gauriloffs surveyor 5 report (Mum r E) 46 ID 0001143;
14
Underwood& StrykLrv Strum}: (Ia!
(.HL as 2024 VI Supra 19
Case No ST 1995 CV 0045‘)
Memorandum Opinion
at 508 5a also Master Exhtbzr 46 (Dej/eme expert) photos I 7 reflecting R 0 W ts going
uphill along botmdmy
April 4 2023 Trans pp 60 66 (Plaintiffs eaperl testimony
Lan/irmmg that the sue Visit party was standing (on the dirt path) aumde 0f the T57
R 0 W
[Vans pp 70 7I (Betcha) expert also indicating [ha R 0 W straddling boundary
between ParcclNo 4 22A and Parcel No 4 26) pp 75 78 (Indicating T57]? 0 W m
bruAh uphill/ram dlrt road m Parcel 4 26 up to the 4 27 boundary) pp 79 8] (Plaintiff:
surveyor teslt/ymg T57 R O W m brush uphtllfmm dirt road In 4 26 up to [he 4
27 bmmdmy) pp [57 59(P1amltfls cxpcrt Lanfxrmmg [57R 0 W
IS 710/ thc flat cleared
dlrt mad) Aprtl 4 2023 Tram p [68 (Defense surveyor confirming the hghl blue
murkmg on survcvm' cxhzblt IS dm‘ road m compzmsan to I57 R 0 W) p 180 (DQ/LIISE
surveyar confirmed blue marking (m [D 000/03 ZS dirt road)
80
The Dierssens deeds created two (2) express easements
one general but confined to the
rear five (5) feet ofcvcry plot and five (5) feet along the Side ofevery building plot and
along every street ofthe subdivision,
and
one over ‘all roads in Panel No 4 which are
now in existence or shall hercaficr be constructed for ingress and egress {Tom the Public
Road 01 otherwise
Strezbzch 74 V I at 502
81
A11 deeds transferred from the Diersscns contained the folluwing language with the
exception ofthe deeds to Parcel Nos 4 22A and 4 22B which did not expressly refer to T57
as mote fully shown on [T57], a copy at which is hereto annexed and
made a pan hereof as though more ful1y set forth herein
TOGETHER with all the appurtenances and all the estate
title
rights and
interest of the parties of the first part [the Dierssens] their heirs and assigns
in and to said premises including a perpetual casement to the parties of the
second part [the Grantees] their heirs and assigns, to run with the land (we;
all roads in Parcel No 4 which are now in existence or shall hereafter be
constructed for ingress and egress from the Public Road or otherwise, and
subject to the following iestrictions
(i) Easements and rights of way are hereby expressly reserved for the
creation, construction and maintenance of utilities, such as gas, water,
telephone
telegraph
electricity
swim drains and
land
drains
public
15
Underwood & Strykcr v S'mrbzch a (ll
Cite as 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
quasi public
and private
as well
as
for any public
private or quasi
public
utility
or function deemed
netessary
and/er expedient by
the
parties
of
the
first
part
tor
the
public
health
and
welfare
Such
easements and rights of way shall be confined to the rear five feet 0t
every parcel and five feet along the side of every building parcel and
along every street ofthe subdivision
0) The Lommon roadways shall be constructed by and at the cost and
expense of the Parties of the first Pm in a proper manner with
adequate
ditches
drains and culverts to provide proper drainage
Thereafter
the
patties
of
the
first
part,
the
parties
of the
second
part,
and
all
suhsequent purchasers of Panel No 4 Estate Tabor and Harmony shall
maintain the mad upon which their property abuts in Parcel 4 in reasonably
good condition on a pro rata expense basis, according to the acreage of the
sub divided residential panels abutting on said mad until such time as the
Government accepts a dedication at said road ’
82
‘ Further the deeds expressly reserved the title to and burden ufbuildiug
roads
to
the Dierssens but they did not reserve any rights in the R O W
Finally while the
“roads“ term the bounds between parcels, the R O W instead burdens individual
parcels
The express easement over roads therefore does not apply to the R O W
Stretbzch 74 V I at 503
83 The area designated as Parcel No 4 22 on T57 includes the listed acreage as 2 42 U S
acres After the subdivision, portions of the T57 R O W that represent the remainder of
39 acre are scattered in several areas along the route ofthe T57 R O W over Parcel Nos 4
22A and 4 22B
84 Each map T61 and T62 defined the boundaries depicted thereon for Parcel No 4 22A and
4 22B respectively
85 On T61 the T57R O W is labelled
Estate Road
and on T62 it is labelled
Seeundary
Estate Road
Mada Exhlbzt 3 Master EXhlbll 4 April 4 2023
[runs p 30 (mdzcatmg 4
228 boundary IS also the secondary estrus mud boundary) Trans pp 1 69 70 (Defendantv
expert cargflrmmg [61 and T62 definedpnrul boundaries ) (Defendants expert Lonfirmmg
T6] and I 62 generally are close 20 the location 0/ the right of way but not pram“ because
a Lompas: a ruler and a scale were um! ta EstabIKh boundaries)
16
Urldcrwand (Q .5101ch v blruhxch, cull
Cue as 2024 VI Super 19
Case No SI 1995 (/V 00459
Memorandum Opinion
86 The first deed for Parcel No 4 22A defines the boundaries of the parcel by reference to the
southern boundary of the T61
‘ Estate Road
within the remainder of the area designated
Panel No
4 22 in T57 remaining in the Dicrssens name Maler Exhzbzt 46 p 3
Geographic BaLkground (Defemc expert report p 3)
87 The first deed for Parcel 4 22B defines the boundaries of the parcel in part, by reference to
T62
Secondary Estate Road ’ with the lower southwestern boundary of Parcel No 4 22B
defined by the northern boundary 01 the lower portion of the ’I 62
Sewnddry Estate Road
with the remainder of the area designated
Parcel 4 22 ’ in T57 remaining in the Dierssens
name Mann I xhlbxt 46 p 3 ngmphlc Background (Defense expert [apart p 3)
88
Despite the northern boundaries at T61 andT62 not matching and the southern boundaries
efTél and T62 not matching both toads follow a similar pdth t0 the T57 R O W including
the bwitehbaeks depicted on both maps
89 Two portions of the T57 R O W were incorporated into Parcel No 4 22A as shown in
both Plaintiffs surveyor 3 report and Defendants surveyors map Two portions 0t T57
R O W were fulty incorporated into Parcel No 4 228 Master Exhlblt 48 p 2 (estate road
partly supplant: R 0 W wt/hm Parcel No 4 22) Master Exlublt 46 (surveyor overlays II)
10/ [a II) 104) Mama Exlzzhzt 4 Aprll4 2023 Tram pp [18 19 (Plamtzjfa expert
aLkr/awledgmg T571? 0 W Incorporated mm 4 22A partlally) pp [63 164 (Defendants
expert explaining calms on surveyor overlays ll) 10]
ID 104 am] what [hose maps
depict) Master Exhibit 3 Maxim Exhzhzt 46 (GaurtloffReport)
Trans p 132 (Plamlzf/s
expert testgfi/zng that T6] and [62 defmeparce/ boundaries) Strzebrch 74 VI affix 15
(zmpllcatwn ofan emcmmr baxed art a map)
D
Expert Witnesses
90
Plaintifis expert Ryan Wisehart ofBridn Muselcy& Associates Inc was qualified as
an expert in land surveying Master Exhzbtt 48 (ndacted verston dclctmg last 2 para
l7
Underwoozld’c StrykLr v Strezbzch, a a!
CIR. as 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
graphs ofexert report) Aprtl4 2023 [runs [7 7 pp 102 03 (testifying t0 quaIg/lcalmm) 8
9]
Defendants expert Harry Gaufiloff ofMarvin Beating & Assnciates wag qualified as an
expert in land surveying
Minter Exhibit 46 April 4 2023 Trans p 7 9
92
Detenddnts’ expert Paul Ferreras was qualified as an engineering expert and provided
deposition testimony on engineering evaluation, cost, economic feasibility, and
environmental impact of constructing a road for vehicular acccfis on the T57 R O W to
Parcel Nos 4 27 and 4 28 in compliance with Virgin Islands Department at Public
Works construction requirements and other zoning laws Master Exhibit 47 Master
Exhibit 65
93
At the site visit teatimony was taken sequentially starting with the Defendants expert
Each expert identified his respective flag markings as everyone traversed the concrete
pavement and dirt road leading frum the intei section of the main road and the entrance
ofPareel N0 4 228 to Parcel No 4 28
94
Plaintiffs expert used lime yellow flags to mark the boundary points ofthe T57 R O W
as well as various points at which the T57 R O W intersected with the boundaries of
Parcel Nos 4 22A 4 25 4 26 4 27 and 4 28
April 4 2023 Tram p 40 4]
95
Defendants expert placed pink flags to mark the boundary points of the T57 R O W
as well as various points at which the T57 R O W intersected with the boundaries of
Parcel Nos 4 22B 4 22A 4 26 and 4 27
April 4 2023 Trans p 9
96 A combination nt maps, deeds, bound post overlays (graphic reproductions), surveying
instruments and science were used to establish the loeatiun and scope ot the T57 R 0 W
97 Defendants expert testified to his placement of flags from the entrance of the T57R O W
identifying both the northern and southern boundaries of the T57 R O W in relation to
PareelNo 4 228
“ Plaintiffs other proffered experts were nor pennitlcd I0 teslity as their Icsllmonlea were wholly irrelevant to
the implied easement and neither were their repons considered
Ste Stipulation dated March 27 2023 excluding
Tyler Edwards and Corby Parfitt and Order dated March 30 2023
9 Defendants other proffered expert was not permitted to testify for the same reason; and neither was her report
considered S(F Order March 28 2023 (excluding, appmztel b/IYVI Runyon Stipulation dam! March 27 2023)
18
Underwood & Stalker v Strerlneh et al
C116 as 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
98
'1 he parties traversed the paved concrete road uphill where additional testimony was taken
from the Defendants expert
The entire Loneretc mad including the two switchbacks is
approximately 8
in width and Situated entirely within the Secondary Estate Road as depicted
on T62 (Defendams expert surveyor averlm/ Master Exhzhlt 46 ID 102 & II) 104)
99
Defendants expat identified the inner and outer boundaries ofthe T57 R O W and those of
the T61
Estate Road
and T62
Secondary Estate Road
Aprzl 4 2023 Tram p 9
100 Defendants expert testified and demonstrated on his survey map that a portion of the dirt
rOdd is located within the R O W shown on T57
’ Master Exhibit 46 [D 103 (iurieyor s
overlay With blue path dexctmg first pormm of dirt road wz/hm the T57 casement
smzdd/mg the boundary line ofappmxzmcttely the/irsz half (2/ Parcel No 4 26 The dirt
rand continuing Inward (east) upon Parcel No 4 26 veering outside 0/ the easemem arid the
I57 easement t1 ackmg upht/l
(Surveyor 5 exhibit
photos 2 1 t0 2 7 depleting R 0 W
gamg uphill along baundmy 0f4 22A and4 26) Aprtl4 2023 Iran: pp 60 66 pp 80 8/
(confirming that the site 1/131!party was standmg outside the R 0 W) pp 70 71 (Defense
expert mdzcatng 0 W snaddlmg boundaty) pp 75 78 (mdzcatmg [57R 0 W
[S m brush uphill/ram dtrtload m 4 26 up to the 4 27 boundary both expat) agree on
wzdlh and distance 0/ T57R 0 W m 1hatarea) pp 79 8/ (Plamnfls surveyor festt/ymg
T57 R 0 W IS in brush uphillfrom dlrt road In Peru] N0 4 26 up to the 4 27 boundary)
101 Defense surveyor Lonfiiming the light blue marking on surveyor 5 exhibit is the dirt road of
which approximately half is located within the 157 R O W and the other half is located
within the boundary line of Farce! N0 4 26 Aprtl 4 2023 [runs p 180
102 Defense surveyor confinned blue marking on MasterExhibit 46,1D 103 is dirt road May16
2023 Photo Lag Phato 2 3 (shawmgjuxtapasltzon of dirt road and T57 R 0 W wtlh the
[5 7 R 0 W SI‘lOWll’Ig overgruwn brush and vegetutmn)
103 Defendants expert confirmed a portion ofthe T57 R O W is not the flat cleared dirt mad
l9
UmIermd & ?lrykcr v Strulmh, 61 (ll
Cm as 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
April 4 2023 Tram p [68
104 Defense expert testified the concrete paved road ia generally 8 to 10 feet wide and wider at
the switchbacks April 4 2023 Fran? p 168 The concrete paved mad is not within the
T57 R O W
but is within T61 and T62 estate roads
Master Exhibit 46 ID 104
105 Plaintiffs expert sutveyor s markings and testimony began at the intersection of Parcels
No 25lo and N0 4 26, an area identified as the Point ochginning on tho expat 5
Drawing No 3654 3 of the T57 R O W
[06 Parcel No 4 25 lies between Parcel Nos 4 2213 and 4 26
107 The Parties survey experts varied their location 01 the shared 4 22A/4 25/4 26 bound post
by approximatelytbul and onehalt feet (4 1/2 fl) Apr114 2023 Trans pp i9 41 pp 48 49 p11
55 56 pp 176 78 (Defendants expert confirmingphmm (g/properly [ML between 4 26 and
4 22A (Muster bxhzbn 46 II) 14310 ID 150)) April 5 2023 Tram p 36 May 16 2023
Photo Log photo 2 21 (showmgpmk and/"ar left llmeyellowflagged marker? lfldlCthlng
Iwundpoxt IULatxans) photo 2 20 (uphill mw q/pmk and [mm yellow flagv) photo 2 [8
(mde angle wow 0fmarkLrs)
108 Plaintifls expert testified there is approximately four and one half teet (4% ft ) difierencc
between the southwest hound post anarcel No 4 26 that he marked and the bound post
that Guariloflmarked April 4 2023 Trans pp 41 55
109 Plaintiffs expert left lime yellow flag facing the ocean represent: the southwest corner of
Parcel No 4 26 which is also the shared bound post ofParccl No 4 25
110 Plaintiffs expert right lime yellow flag facing the onean represents the intersection of the
northern boundary ofthc T57 R O W and the bouthcm boundary ofParcel N6 4 26
l 11
Plaintith expert testified [‘57 is south of the boundary line between Parcel No: 4 22A
and 4 26, resting in 4 22A with the northern line testing in the driveway of Parcel
No 4 26 April 4 2023 Trans pp 61 63 (8'0th [X uphill Into the brush)
1 12 Plaintiffs expert further testified he used lime yellow tape to delineate the outer limits of
“7 Although the Illlcwcnlng Delendants are also joint ownm of Panel No 4 25 the mlemcuon at the 1‘57
cascmenl and 4 25 repre<ents a tnangular poinl and ha: limited eignlficancc such that there was little diaoussion
of the shared boundary post of Parcel No 4 25 in the» proceedings
20
Underwood & élrykcr v Strulmh 61 u!
cm as 2024 VI Super 19
Case N0 ST 1995 CV 00459
Memorandum Opinion
the T57 R O W on both the north and the south side however he did not extend the tape
across the north houndary due to Streibich 8 home improvements (entrance ofsteps) that
blocked his ability to set the tape from one point In the other April 4 2023 Tram p 5]
113 Detendants expert testified the T57 R O W passes through the bound post ofParcel Nos
4 228 4 25 and 4 26 April 4 2023 Trans [1 56
1 l4 Plaintiffs expert also testified the approximate distance between the T57 south boundary
and the north boundary line is twenty (20) feet wide April 4 2023 Tram p 64 The T57
R O W mosses over along the hill April 4 2023 Trans p 75
115 Plaintifls expert Diawing No 3654 3 ofT57 R O W depict: a 20fiwide easement across
Parcel Nos 4 26 and 4 27
l 16 Plaintiffs expert and Defendants expert both agree generally, on the location and the
seope 0fthe T57 R O W April 4 2023 Tram p 77
117 With the exception ofminor variations ofa few feet at the Point efthe Beginning 0fthe
T57 R O W upon Parcel No 4 26 the Parties survey experts did not ditter in their
10e1tion of the TS7R 0 W
1 18 In 2022, Streibieh renovated and repaired the entrance to his home on Parcel No
4 26, he
iesurfdeed his existing entry stairs and added a handrail to make the entrance safe and he
redesigned the edges ot the stairs ta divert Water and avoid flooding Aprll 5 2023 Tram
pp 46 5] (Defense EXhlbUS 2 and 3 photos)
119 The improvements to the steps are important only to the extent that the steps were already
built in the TS7R O W
but are irrelevant to these proceedings because the repairs and
enhancements did not expand any further into the F57R O W April 5 2023 Trans pp
24 27 (admitting Def Ex
I {buzldmgplam as recczvcdfrom the Battles» pp 27 3/
Mav 16 2023 Ph010L0g213 214 2 2] & 2 22
120 Engineering expert Paul Ferreras offered three alternative options for creating a road
to access Panel Nos 4 27 and 4 28 Option 1 Use ot the existing dirt road, except such
traffie would be detrimental to Parcel No 4 26 because it prevents any suitable roadway to
be Constructed that would align with the dirt road and zoning laws and construction
21
Underwood & Stryker v SlMlblc/l Lta/
Cm as 2024 V1 Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
requirements Option 2 a joint driveway constructed on the lower road ta accommodate
both panels; and Optlan 3 separate driveways eonstructcd 0n the lower mad
121 While these options may be more economically feasible than blasting the rock on
the southern hillside within the T57 R O W , the engineering options are completely
irrelevant to these proceedings became an implied easement exists on the T57 map
E
[‘he Parties
122 Defendants Blue Waters Realty LLC Anhur Schmaudei and Elizabeth McGuire : wishes
to have minimal traffic flow, when weighed against the Plaintifts unfettered rights In
continual and uninterrupted ingress and egress upon the T57edsemcnt, are irrelevant and
inconsequential There is no evidenee to show construction of homes on Parcel Nos 4 27
and 4 28 will negatively impact the Defendants, besides normal road wear and tear and
conatruction activity
123 The T57 map delineation oi the R O W is schematic yet sufficient to define its location
Its
beginning and ending are plainly illustrated without ambiguity the [servient] parcels are
clearly labeled (Master Exhibit 48 p 2)
124 The 57 R O W pre existed the sale ofParccl No 4 22B in 1962 to Thomas 0 Cook and
Nancy H Cook Therefore, the Cooks and all subsequent purchasers were on record notice
that an easement tor ingress and egress existed across Parcel No 4 223 for the benefit of
the inner parcels
125 The easement is depicted on
1‘62 as the
Secondary Estate Road
with specific notation
that the property boundaries do not include the right of way This is evident of the
Dierssena intent to create acne» to the other parcels
126 The 57 R O W pre existed the sale of Parcel No 4 22A in 1961 to Robelt Merwin
Therefore, Ruben Mcrwin and all subsequent purchasers were on recon} notice that
an easement for ingress and egress existed across Parcel No 4 22A for the benefit of
Parcel Nos 4 27 and 4 28
127 The Court recognizes fragmented portions 0fthe easement were conveyed in fee simple by
the Dierssens to the owners ofParccl Nos 4 22A and 4 223 by warranty deed
128 Yet although the subdivision creating 4 22A and 4 22B out of Parcel No 4 22 left
22
Underwoaddi Slrykcr v Strelbtth LI «1
Cm as 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
remaining portions in 4 22 such remainder did not cancel out the Dicrssens strong intent
of Lredting access to the inner parcels
129
Further the Schmduders placement of gravel in an area 0t approximately 20ft square space
to create their driveway is not indicative of the Dierssens intentional failure to complete an
access road upon the right of way to Parcel No 4 28
[30
Dispmportionate and fragmented portions of the T57R O W were deeded away
inadvertently but it remains evident that the Diensens intended to have a right of way by
creating T61 and T62 maps with an estate read This estate read (secondary estate road
right of way) is the only read that exists which leads to the upper portion of Parcels 4 26
4 27 and 4 28
I31
The term
secondary
also suggests this road was not intended to be part of the private road
system with ditches and drains but to represent a right to pass over the land 0t others to
access the inner parcels
l32
l'he inadvertent conveyance is not a basis to conclude the entire F57R O W is merely a
driveway tor the sole benefit of Parcel Nos 4 22A 4 22B and 4 26
133 The Dierssens did not intend to deed away parts ofthe T57R O W when conveying Parcel
Nos 4 22A and 4 228 because they explieitly incorporated by teferenee T61 and
T62 into the respective deeds to those parcels which created an estate road (and secondary
estate road) which suggests their intent was to grant aeoess to Plaintiffs to traverse the
T57R O W
even though the three similar paths (T57 T61 andT62) are not identical by
coordinates
134
The Dierssens intent was to create aeeess to Parcel No 4 22A from the main mad failing
which the lot would have been landlocked and by mere observation of the topography the
most suitable way to gain aeeess to Parcel No 4 22A is through Panel No 4 ZZB
135 The most suitable way to gain access to Streibich a property and Blue Waters Retreat LLC
is by way cf the same estate road through Parcel No 4 228
130 As such, the Court can similarly conclude the Dierssens intended to also provide access to
Parcel Nos 4 27 and 4 28 particularly since the T57 map depicts a lengthy right of way
23
UnderwvozlnfiStryku v SlrLlhzch s10]
Cm as 2024 VI Super 19
Cue No SI
1995 CV 0045‘)
Memorandum Opinion
across all four Parcel Nos 4 22B 4 22A 4 26 and 4 27
137 The distance in length between the entrance from the main road to the Point of Beginning
measures approximately 600 feet
Maxter Exhlblts ? 4
138 The distance in length between the Point of Beginning to the wcstem boundary 01 Parcel
No 4 28 measures 446 56 feet
Plamttjfiv expert drawmg no 3654 3
139 Moreover the subdivision between Parcel Nos 4 22A and 4 22B into one acre lots is
eonsistent with most of the other 17 one acre lots of Parcel 4 in 13:15:10 Tabor & Harmony
Master bthtbtt 2
140 By defining the bounddlies ofPareel No 4 22A and Parcel No 4 22B including using
the borders 01 T61 and T62 to define parcel boundaries T61 and ’l 62 effectively defined the
boundaries of the
Estate Road
and the
Secondary Estate Road
141 This unambiguously demonstrates the estate road was intended to provide accces to all
five parcels 4 22A 4 22B 4 26 4 27 and 4 28 MastLr Exhlbtt 3
Master Exhtbzl 4
Mnytcrlxhlblt 10
Master EXhlbll 12 & Muster Lxhlbzt 46 (ID 103 106)
142 When the Department of Planning and Natural Resources (DPNR) issued the August 27,
2002 permit to Warren Strykcr
to groom the easement and to spread gravel
it was
intended to clear Parcel Nos 4 22A 4 26 and 4 27 as depicted on the pennit Master
Exhtbzt 42
143
Tu conclude the permit was limited to Parcel No 4 28, would he illogieal beeause the
casement terminated at the boundary of 4 28 and this would defeat the purpose of the
government issuing the permit
144
The reasoning that Plaintitts abandoned the implied easement is faulty as it is evident
Plaintitts attempted to use the right Of way on several occasions since 1994, but were
stopped by Deteudant Streibieh on more than one occasion No evidence was presented
to show either Underwood Kaplanek 111 or the Strykers abandoned their interest in the
Estate Road
24
Underwood & Stryker v Siretbzch, at a!
Cm: as 2024 V1 Super 19
Case N0 S1
1995 CV 00459
Memorandum Opinion
145
On May 5 2003 Stieibich placed a nute on a vehicle threatening mun action ifthe
owncr/operator 0f the vehicle on the premiecs did not move the vehicle Master Exhzbzt 45
K
146 Warren Stryker testified he had been blocked by Strcibich Trans Aprll 3 2023 pp 69
70
147 Further the reasoning that the predeeesaorb in interest ofParccl Nos 4 27 and 4 28 should
have stopped Brenton and Susan Battles fmm consttutting the house on Parcel No 4 26 so
close and within the easement i: also irrational as the predecessors had no control over
what the Battlce or othe! property owners did with their property
148 Both expert surveyor: agree on the location of the implied easement as depicted on T57
which starts at the intersection of the main road and continues along the concrete paved
roadway that is currently in regular use by the Defendants and continues uphill beyond the
two switchbacks and along the hillside straddling the boundary lines of Parcel Nos 4
22A and 4 26 and across 4 27
149 [ntervenin;,y Defendants incorrectly claim there was a need to mention the T57 map in the
1962 transfer from the Dierssens t0 the Brilliants This theory is mispldted because the
purpose of creating the T6lmap had no bearing on Parcel No 4 26 T61 s only purpose was
to depiet the subdivision of 4 22 into two parcels The Estate Road as depicted on T61 is the
same R O W on the T57 map although not identical with bearings and distances but with
variations as shown by Defendants’ expert, therefore negligible uporddic portions ofT57
were inadvertently conveyed to the Mcrwin Trust in 1962
150 Further, the T62 notation to T57 was sufficient to put potential buyers on notice of the
existing R O W Dire“ reference ofT57 in the 4 22A and 4 228 deeds did not need to be
specifically mentioned in the subdivision ofParcel No 4 22 or any 0ft11e subsequent
conveyances of Parcel Nos 4 22A and 4 2213
151
Intervening Detendants argument that there was an insufficient amount of time between the
rccordation of Parcel Nos 4 22A and 4 26 on November 9 1962 to reveal the T57mdp in
the title search is irrelevant
25
Undume & SIIy/(Lr v Strubich 81 (ll
Cite as 2024 VI Super 1‘)
Case No ST 1995 CV 00459
Memorandum Opinion
152 Intervening Defendants arguments failed in their entirety because even if they were
allowed to intervene on their original motion, the Supreme Court’s decision wuuld remain
the same because the purpose 0t creating T61 and T62 was limited in scope and had
absolutely no impaet on the pro existing T57 map
153 Heme no property Owner needs permission from the owners of 4 22A 4 22B 4 25 or 4
26 to traverse the tight uf way because the Dierssens by their actions, intended to create
vehicular access to the inner parcels
154 Defendants arguments fail to overcome the convincingly overwhelming evidence that the
Dicrssens intended to grant a R O W to future buyers of Parcel Nos 4 26 4 27, and 4 28
CQNCLUSIONS OF LAW
A
Jurisdiction and Venue
1
This court hasJurisdietion over this matter pursuant to Title 4 V I C § 76
2
The subject matter of the claims and defenses are claims relating to real property lying on
the island of St Thomas United States Virgin Islands
3
Venue is proper in thisjudicial district
4
The Plaintiffs filed complaints in this Court thus voluntarily appearing and waiving any
objection to personal jurisdiution
5
Defendant Streibich was properly served and the Court has personal Jurisdiction
6
Intervening Defendants affirmatively sought to be made parties to this case thus waiving
any ohjection(s) to personal jurisdiction
7
I'his Conn has peisonal and subject matterjurisdintion
B
Easement bx Implication Mag Reference
Grantor’s Title and the Intended Scone
0f the T57 R O W
8
An implied easement exists when the grantors intended to create a servitude hut
neglected to do so expressly Slrezbzch v Underwood 74 V I 488 504 (V I 202!)
9
An implied easement was Lredted by reference to the maps that were incorporated into
the deeds
26
UndLrwaad & Slry/(u v StrLIbIc/z e! u]
Cm as 2024 VI Super [9
Case No ST 1995 CV 00459
Memorandum Opinion
10
The rule expressed in Restatement (Third) 0t Property Servitudes § 2 13(2000) is the
soundest rule for the Viigin Islands Strum}; 74 V I at 506 (V I 2021)
l 1
Section 2 13 provided in pertinent part
In a conveyance or contract to convey an estate in land description of the land
conveyed by reference to
a map or boundary may imply the creation of a
servitude, if the granmr has the power to cxeate the servitude and if a different
intent is not expressed or implied by the circumstances
(1) A deseription of land conveyed that refers to a plat or map showing
streets, ways, parks, Open space, beaches, or other areas tor common
use or benefit, implies creation of a servitude restricting use of the land
shown on the map to the indicated uses
(2) A description of the land conveyed that uses a street or other way, as a
boundary implies that the conveyance includes an easement to use the
street or other way
Rum! 3d afProp Servztudes
3\ 2 [3 (2000) See (1/50 Stretbzch at 505
12
T57 creates
an inference that the parties intended for there to be an easement, which any
other party may rebut by pointing to evidence 0f a contrary intent, with the strength of the
evidence needed to rebut the inference of an easement varying based on the strength of the
evidence
particularly the explieimess at the map
used to support the inference
Id at
506 See also Brodhursti Framer 57 V 1 365 370 (VI 2012)
13
T57 explicitly states that there is a R O W and while the word easement
does not appear
on T57 a ‘ right of way
in 1957 was by legal definition an easement granting the holder
the right to pass through property owned by another 1d at 507
14 Right of way
‘ [t]he right ofpassage 0r ofway is a servitude imposed by law or by
convention, and by virtue of which one has a right to pass on foot, or homebaek, or in a
vehicle
through the estate of another
When this servitude results from the law the
exercise of it is confined to the wants 0fthe person who has it ” Black s Law Dictionary
(2 lLd)
27
Um/crwoodd’z Twyla!“ v Slrerlmh a (II
Cue as 2024 VI Super 1‘)
Case No ST 1995 CV 00459
Memmandum Opinion
15
Right 01 way in its strict meaning is the right ofpassage over another man 5 ground and in
its legal and generally accepted meaning
it is a mere easement in the lands ofothers
Id
16 While there is no expressed R O W Agreement, the Dicrssens intended for there to be a
right of way by such depiction on the T57 map
17 The Supreme Court ofthe Virgin Islands recognized the R O W when it stated
1t]he
R O W appears to bisect Parcel No 4 22 then continue along the boundary line between
Parcel Nos 4 22A and 4 26 (approximately half in each parcel) and into Parcel No 4 27
Slrelblch at 492
1 8 The chain 01 title for the parcels and themaps dancnstmte the Dietssens intent was to include in the
scope of the merit vehicular access
19
Examination oi the three Public Works maps T57, T61, and T62 demonstrates that while
all three maps depicting the right of way Are not prceisely consistent, by metes and
bounds, it is indisputable that all three paths are similarly situated in the same area plus or
minus a few feet within each other
20 The
Estate Road
depicted in F61 lies across Panel No 4 22B and 4 22A in a similar
manner to the path of the
Secondary Estate Road
in T62 which, in turn they both follow
the pattern 0fthe R O W
in T57 including the two switchbaeks
21 The Dierssens explicitly designated an area as the
Estate Road
on T61 and
Secondary
Estate Road
on T62
T62 specifically lays out the acreage conveyed which does not
include the right of way (secondary estate mad) The original deeds 0f4 22A and 4 22B
conveyed by the Dierssens used the southern and lower southwestern boundaries ofthe
roads to define the respeetive portions of the parcel boundaries
22 This is also Lonfin‘ned by Defendants” surveying expert in his report depicting the color
coded parcels and map uverlays showing the concrete paved road the existing dirt road and
28
Underwood & Stryker v SIILIhILIi L10]
Cue as 2024 V1 Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
the T57 casement along with e010!” Loded overlays 0fthe T61 and T62 estate roads
See
Maxtcr I Ahlblt 46 1D [03 andID 104
23 This is also confirmed by Plaintiffs expert in his survey report and drawing scientifically
calculating specific distances at the portion of the easement which starts at the Point of
Beginning at Parcel No 4 26 on the [‘57 R O W and extends 446 56 icet in length to the
boundary ofParcel N0 4 28
24
No use may be made 0121 right of way different from that established at the time ofits
creation so as to burden the scrvient estate to a greater extent than was contemplated
McIntosh v Prince 9V1 3
11 (V1 Super Ct 1971) Stretbuh at 509 fn 17
25
It is important to note that the R O W derived from the map and the use ofthe term right of
way
gives [the Plaintiff and lntervcning Plaintiffs] only the right to pass across the
R O W and no more " Stretbzch, 74 V 1 at 509 fn 17 (citations omzltcd)
26 The T57R O W is only for ingress and egress of the ddjuining properties ofthe Plaintiffs
27 Defendants argument that the R O W was never used as a road or area for Vehicular
access except on one occasion when Underwood cleared away debris and bush has failed
to overcome the overwhelmingly strong evidence that tho Dierssens intended the T57
easement to serve as an access road to Parcel Nos 4 26 4 27 and 4 28
28 Intervening Defendants arguments that the area is full Ofbush and was never Lleared ale
equally unavailing because failure to clear bush is not an indicator of abandonment nor
does it signify the cxtinguishment ofa right
29 A servitude benefit is extinguished by abandonment when the beneficiary ielinquishes the
rights treated by a servitude
UndLmoadV Strezbmh 70 V 1 179 193 (V I Super Ct
2019) See Rena! 3d (2/ Prop Scrvztudes § 7 4
30 The prevailing rule still applies that an easement cannot be lost by mere non use thus in
order to establish abandonment of such right the onus rests on the defendant to show both
an intent to abandon as well as some overt act or failure to act which LlelES the
implication that the ownel neither claims nor retains any interest in the easement
Smtth v
29
Underwood & Slry/tu \
Stroll)th e! (ll
Ute as 2024 V1 Super 19
Case No ST 1995 CV 0045‘)
Memorandum Opinion
Defrutm 329 F 2d 629 634 (3d Cir
1964)
31 When a eenain path is the only or the main access to property or to some of its plots and the
right of way is indicated on the maps the right of way even ifit is not registered may not
be dislodged by later owners of the servient estate [d m 533
32 Abandoning an easement requires the evidence presented before the court to show that both
the non use and a showing that the [Plaintiff] has taken an affirmative step demonstrating a
clear intention never to make use of it again Simple neglect makes little sense given that no
ether property interest can be lost this way Malloy v Rcym 61 V
I
163
178 (V
l 2014)
33 Defendants have not offered any evidence of any overt act or failure to ant which would
suggest or imply any 0fthe Plaintifis failed to claim any interest in the implied easement or
that they failed to retain any interest in their easement
34 Unpaved roads are not uncommon in the Virgin Islands and the Supreme Court has noted
land in the Virgin Islands is scarce and restrictive covenant[s] will be strictly construed
against limitations on the free use ofland, with all doubts to be resolved in favor 0fthe
unfettered use ofland ” Strelbtch at 506
See (1150 Thomas v VI Board quand HAL
Appeals 60 v1 579 593 (VI 2014)
35
[Plaintiffs] me the holders nfan easement allowing them passage over the R O W as
depicted in T57 Strubzch at 508 509
36 Easement by prescription is defined in Restatement (Third) of Piepexty § 2 16 as
(1) a use that is adverse to the owner of the land or the interest in land against which the
servitude is claimed or (2) a use that is made puisuant to the terms at an intended but
imperfectly ex eated servitude or the enjoyment of the benefit of an intended but
imperfectly created servitude
37 Easement by necessity is defined under § 2 15 which states
A conveyance that would otherwise deprive the land conveyed to the grantee or
land retained by the grantor of rights necessary to reasonable enjoyment uf the land
implies the creation of a servitude granting 0r reserving such rights
unless the
language or circumstances of the conveyance clearly indicate that the parties
30
Umlcrwoml'd’z $”ka v Slrerbth, c! u!
Cm as 2024 V1 Super 19
Case N0 31
1995 (,V 00459
Memerandum Opinion
intended to deprive the property of those rights
Restat 3d of Prop
S(rvztudcs
§
2 15 (3rd 2000)
38
Plaintiffs properly abandoned their pursuit of easement by prescription and easement by
necessity because both Llaimb are inapplicable as there is an implied easement over T57
map
39
Defendants improperly assert that ueuessity must still be addressed because it is probative
ofthe Dierssens intent
Fhis is incorrect because the Dierssena intent is abundantly evident
when taking into consideration that all deeds except for the 1992
1994 and 2016
conveyances of Parcel No 4 27 incorporated T57 by reference The other exeeption is the
1989 conveyance of Parcel No 4 26 which referred to a 1988 map T88 however referred to
the original T57
40 Defendants have not set iotth any evidence to rebut the Dierssens actions demonstrating
their intent to create a right 0t way
41
All original conveyances from the Dierssens and many subsequent ennveyances
incorporated T57
42 Even though the original and subsequent conveyanees 0f Parce1 N0 4 22A did not refer to
T57 the Dierssens created an ect'ite road running along the same path ofthe T57 R O W
As for Parcel No 4 2213 the original Dierssens deed expressly stated
[tjhe whole
Comprising an area of 1 0 U S Acre, nut including the fight of way ” The T62 map
illustrates a eimilar annotation establishing the boundaries ofthe parcel ‘ not including the
R O W
43 The Dierssens intent is unequivocal theiefore the need to establish an easement by
neeessity is no longer relevant
44 Marshall Dierssen s estate WAS properly admitted in the Piobdte Court of Farmington
Connecticut on or about May 9 1968 On May 9, 1968 Judge W Spencer Hulburt issued
the following orders
ORDERED that the Administrator with the Will Annexed be and he is
hereby authonzed and empowered (a sell the personal estate of said estate
either at public auction or private sale, as he may deem for the interest 01 the
31
(/ndLm'nm] & Stryknr v Strains]: e! 11/
Cite as 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
estate
ORDERED that the Administrator with the Will Annexed make and file
with this Court, an inventory under oath ofall 0f the property nfSaid deceased,
duly apptaised, within two months from the date hercoi and that said
Administrator with the Will Annexed exhibit his aeLount to this Court for
allowance within twelve months From the date hereof And it is fimhcr
ORDERED that disinterested persons be and they are hereby appointed
appraisers at said estate
Further, Mandonald Budd, Administrator d b n c l a oi the I state ofMarshall IJIerxsen
was granted several interim account distributions during the LOUISE at this probate
including one on July 14, 1992, and issuing checks on the final account on January 20,
1993
45
A will executed without the Virgin Islands in the mode preseribed by the law either ofthe
place where executed or of the (estate: 5 domicile Shall be deemed to be legally executed,
and shall be 0fthe same force and effect as ifexeeuted in the mode prescribed by the laws
01 the Virgin Islands provided such will is in writing and subscribed by the testator
Title
15 V I C
55 15
46
Where real property situated within the Virgin Islands or an interest therein is devised or
made subject to a power of disposition by a will in writing, subscribed by the tcstator
duly executed in cnntormity with the laws ufthe Virgin Islands or ofthc place where
executed or of the testatur s domiLile and established or admitted to probate without
the Territory and filed or recoxded in the proper offiee as prescribed by the laws ot the
State or tmeign country where the will was established or probated
a copy oi such will
or of the record thereof and of letters testamentary granted thereon
authenticated as
prescribed in such section "46 0fthis title, may be retarded in the office ofthc recorder of
deeds in the judicial division in which such real property is situated, except that where it
32
Underwoozl& Stalker v 8‘1}?thch cl (1]
C115 as 2024 V1 Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
zipped” that such will was executed without the Territory no copy of proofs ur the
teeurd thereof and no statement of the substance of such proofs 01 of the record thereof
shall be required; and such record in the uffice of the recorder of deeds or an exemplified
copy shall be presumptive evidence of such will and of the execution thereof and of the
letters testamentary granted hereon and of such petition for letters of administration and of
the letters ofadminietration granted thereon in any action or special proceeding relating
to such real propelty
Ittle 15 VIC §35
47 Accordingly the Administrator (I b n c I a ofMarshall Dierssen a estate had legal authority
to convey Panel No 4 27 recorded in the probate tile and approved by the Probate Court
of Farmington, Connecticut
48 The Administrator 5 Deed conveyed to Susan Luge on March 30, 1990, is not a void deed
therefore, Susan Luge had the authority to convey Parcel No 4 27 to Katen Underwood
49 The Restatement ( Third) of Property Scrvitudes Created by Implication § 2 11 states that
(a) “[t]he creation of a servitude burden may be implied by the Lireumstances surmunding
the conveyance ofanother interest in land
and (b) [t]he identity ofthe beneficiary may
be implied by the facts or eircumstances of the transaction creating the servitude
50
Section 2 ll(e) further provides “eervitudes are implied 0n the basis ofthe infen'ed intent ofthe
parties to the conveyance The inference may be based on language used in the conveyance, the
object of the transaetion, a use at the property made prior to severance, the language used in
referring to maps or boundaries, or restrictions imposed on the conveyed land
I he inference
may also arise tram the fact that, without a servitude, the land conveyed or retained by the grantor
would be landlocked [he inference is based on the conclusion that under the circumstances it is
reasonable to infer that the parties intended to create a servitude but failed to give full expression
to their intent
Karat 3d Q/l’mp
Scnztmlts
S‘ 2 [I (3r1l2000)
51
Section 2 13 provides “in a conveyance or contract to convey an estate in land, description
of the land conveyed by reference to a map or boundary may imply the ereation at a
servitude, ii the grantor has the power to create the servitude, and if a diftcrcnt intent is not
33
Underwood & StrykLr v Ytrerhzch L10]
Lila as 2024 VI Super 19
Case No SI W95 CV 00459
Memorandum Opinion
expressed or implied by the circumstances
(1) A description of the land conveyed that refers to a plat or map showing streets
ways, parks, open space, beaches, or other areas for common use or benefit,
implies creation of a servitude restricting use of the land shown on the map to the
indicated uses
(2) A description ofthc land conveyed that uses a street or other way as a boundary
implies that the conveyance includes an easement to use the street or other way
(emphaizs added)
52 Finally, Section 2 14 further explains,
“unless the facts or circumstances indicate a contrary intent, conveyance ofland
pursuant to a general plan ofdevelopmeut implies creation of servitudes
implied
benefits that provides each lot included within the general plan is the implied
beneficiary of all express and implied scrvitudes imposed to carry out the general plan
53 The Dierssens subdivided Parcel No 4 and constructed private roads with the intent to
promptly generate property sales to recover costs
T57 map was created to include an
easement to support the general subdivision plan to ensure all property owners had easy
access to their respective properties
C
Scoge 0fthe Imglied Easement
54 The most common type ofimplicd casement (also referred to as an easement by
implication) is an easement that is implied based on past use Strezbich 74 V l 504
However due to no past use here
it is necessary to consider an easement implied by an
indication on a map that is incorporated into the deed
55
[T]he scope nfan casement is what its holder may do with it the purposes for which it
may be used
McBLIrney v Paqum 28 A 3d 272 277 (Conn 2011) (citations omitted)
56 “Typically, to discern the scope ofan easement, ‘the deeds, maps, and recorded instruments
that created the easement must be considered in 1ight ofthe surrounding circumstances to
determine its nature and extent
Mcls‘umey at 277
57 When construing the scope of an easement a map clearly designating an area as devoted
to a particular use creates a strong inference that a servitude will be created to implement
34
Underwood & Strykcr v Strubzch a a]
CUE as 2024 VI Super 19
Last, N0 ST 1995 CV 00459
Memorandum Opinion
that planned use Id at 281
58
The easement was designated by specific indication on the T57 map depicted as a R O W
that has been incorporated into all original property deeds conveyed by the Dicrsscns tor
Parcel Nos 4 26 4 27 and 4 28
59
The first portion of Parcel No 4 22
is designated as Parcel No 4 22B
60
Both surveyor experts agree on the location 0fthe T57 ROW Both agree there is a valid
twenty feet (20 )widc easement shown as the right of way as depieted 0n T57 The
R O W begins at the intersection ofthe main road at the entrance to Parcel No 4 22B
running through Parcel No 4 22B uphill, passed the two Switchback; and along the
boundary line of Panel No 4 22A and 4 26 (approximately halt in each parcel) running
across the southern side 0t Parcel No 4 27 and terminating at the boundary line 0t Parcel
No 4 28
61
'l he R O W starts at the intersection of the main road by branching off75ft more or
less from the northwest comer of Panel No 4 22
on the 1 571mm and 166fiat the
northeast comer heading uphill with the width measuring 20fiand in some areas 36tt
wide
Gaurzlofl' Report
Mayer EA/‘IZIIZ’ 46
62 Starting at the entrance to Parcel No 4 22B and through the middle ot the entire parcel
uphill in a zigzag pattern the existing concrete paved road follows the right of way but the
road is not situated in the right of way The right of way runs uphill towards the boundaries
ofParccl No 4 26 and Panel No 4 22A Based on T62 the R O W is within the secondary
estate road
and the road measures at 36tt in width at the switchbacks and then narrows
after the second switchback to approxiimtely 27 feet in width and continues on the path of
the right of way Gaunlq/f Report
Masler Exhzbzt 46 Master Exhibit 4
63 The right at way continues over Parcel No 4 22A for another 252
in length more or less,
35
Unduwnndd’c $”ka v Strains}! a (1/
Cm as 2024 V1 Super 19
Case No ST 1995 CV 0045‘)
Memorandum Opinion
on T62 until it narrows to 10 13 feet in width at the intersection ofPareeI No 4 22A and
Parcel No 4 26 which then widens to 20 as it continues along the fist halt of the
boundary line of Parcel No 4 22A and Parcel No 4 26; veers inland and aerass Parcel
No 4 27 and terminates at the western pelimeter line ofParcel No 4 28
Mastcr [xhzbzt 4
(Wtsehart s Drawmg N0 3654 3)
64 From the Point of Beginning (where Parcel Nos 4 26 and 4 22A intersect) continuing along
the boundary line ufthose parcels until the right of way tenninates at the western perimeter
of Parcel No 4 28 measures 7 964 square feet more or less, 201’: in width and consists of
183 acre (Wnchart s Report Drawmg N0 3654 3)
65 The T57 R O W , in its entirety, was never conveyed, destroyed, or abandoned
66
Priortu 1961 the right of way bisected Parcel No 4 22
67 The surveyor 5 expert reports the respective maps (including exhibits and site inspection)
and experts’ testimony reveal no significant difference in the opinions ofthe respeetive
export surveyon as to the precise location and scope ofthe T57 R O W
68 The difference between the experts survey maps represents approximately four and one
half feet (4 V: ft) between the hnund posts ofParcel N0 4 25 and Parcel No 4 26 which
is immaterial
69 The size ofthc R O W is a valid indicator the Dierssens did not intend for any portion of
the easement to be limited to a tootpath 0r bieycle path rather they intended for it to be
used as a perpetual easement for vehieular access across Parcel Nos 4 22A, 4 22B, 4 26
and 4 27 until it reaches Parcel No 4 28
70 Plaintitfs have the legal right to traverse the Estate Road lying between Parcel Nos 4
22A and 4 22B
Defendants regularly use the same Estate Road tor access to their
properties at 4 22A 4 22B and 4 26 therefore they cannot legally prevent or restrict
36
Undenmutl & Slryker v Strublch LI [1/
Cue as 2024 V1 Super 19
Cast. No SI 1995 CV 00459
Memorandum Opinion
vehicular acne» to Parcel No 4 27 or Parcel No 4 28
71
Plaintiffs have a legal right t0 the twenty toot (20 )widc easement for unrestricted
vehicular access aucss Parcel Nos 4 22A, 4 22B and 4 26 to reach Parcel Nos 4 27 and 4
28
72 The Defendant, Intervening Defendants, and their successors in interest have no legal
right tn prevent or restrict vehicular access across any section of the Estate Road depicted
on T61 or the Secondary Estate Road shown on T62
73
'1 he Defendant Intervening Detendants and their successors in interest have no legal right
to prevent or restrict vehicular aceess across any section ofthc T57 R O W as has been
located by this Court in these proceedings
74
Plaintiffs can traverse the proposed estate road because the Dicrssen deeds explicitly
provide for an easement over “all roads in Parcel No 4 which are now in existence or shall
hereafter be constructed tor ingress and egress from tho Publie Road or otherwise
Sfrelbtch at 502
75 T57 R O W was specifically designed and mapped for ingress and egress only from the
main road
76 The Supreme Court acknowledged that T57 is a complete map ofthc entire planned
subdivision while T61 and T62 ate limited in scope to Parcel Nos 4 22A and 4 22B only
These drawings are therefore of limited significance in determining the Dienscm’ intent
towards the remainder ofthe R O W
Slrclhlch at fn 15
77 Hence Plaintiffs do not need to show that the Dierssens had the right to convey an
easement over Parcel N05 4 22A and 4 22B Rather Plaintiffs only needed to prove that
they have the right to use the estate toad across 4 22A and 4 22B and as such Plaintiffe have
prevailed
37
UmlLrwaad & Stryker v Stretbzch, e! u!
Cm as 2024 VI Super 19
Case No ST 1995 CV 0045‘)
Memorandum Opinion
D T57ROW Upon4 26
78 Defendants arguments that Plaintiffs and Intervening Plaintifls must use the lower road as
it was intended by the Dierssens are equally unavailing as there is absolutely no evidence
that the creation of the lower road (.de first in time, thereby extinguishing the use of the
easement 0f tenord
79 When Streibich purchased Parcel No 4 26 in 1989 he was on notice that there was a 20
foot wide easement of record burdening Parcel No 4 26 When Streibich purchased Parcel
No 4 22A in June 2007, this lawsuit was pending, and he was an notice that there was a
20 foot wide easement or R O W at report} burdening Panel No 4 22A
80 At trial, Defendants offered no evidence of any overt act or failure to act which implies that
Plaintifls neither claimed nor retained any interest in their easement
8| T0 the contrary Plaintiff immediately attempted to use the easement right aficr purchase
Plaintift Underwood promptly brought this action in 1995 when she reali7ed she was
restricted from having the use ot the R O W and Plaintiffs have fervently pursued the right
to use the 2011 wide easement in the same manner as the Defendants do
82 At trial Defendants offered absoiutely no evidence to refute Plaintiffs position that the
use 0fthc T57 R O W
is tor vehiLular use and is not restricted to a fcotpath or a
bicycle path Defendants’ own expert surveyor report and graphic map overlays
demonstrate vehicular use
83
lntervening Defendants argument that the Dierssens deeded away much of the R O W prior
to the sale at 4 27 and 4 28 is innorrect Although the Diersscns inadvertently deeded
away approximately four random portions of4 22A and 4 22B the only purpose of creating
the T61 and T62 maps was to depict the subdivision of Parcel No 4 22 Nothing more
84
While there is no record 0fthe Dicrssens conveying title in Parcel No 4 22, the Court can
draw a reasonable conclusion that the Dicrssens intent was not to single out 4 22 to make
38
Underwood & Slrykcr v Szrubrclz c141!
Cite as 2024 V1 Super 1‘)
Case No ST 1995 CV 00459
Memorandum Opinion
it an exception to the pre existing T57map and neither was the intent to create a private
driveway tor Parcels 4 22 and 4 26 only
It can be surmised the intent was to subdivide
the 2 acre parcel of land consistent with most of the other 1 acre parcels in the general
development plan ofParccl N0 4 to increase sales and recoup costs
85 Thus the Dierssens inadvertently deeded away sporadic insignificant portions of the
easement and likely did not intend to do so Otherwise, Parcel No 4 22A would have
become landlocked without the easement
86 Even without the subdivision of Parcel No 4 22 the T57 map pre existed all other maps and
the right at way was already established
87 The Court concludes it would he illogical for there to exist an implied easement to Parcel
No 4 26 and not to Parcel Nos 4 27 and 4 28 when these three adjoining lots are situated on
the same ridge facing the Atlantic Ocean
88 Therefore all purchasers were on record notice of the T57easement
E lnlunctive Relief
89
When determining injunctive relief, the Supreme Court of the Virgin Islands held the
soundest rule for this jurisdiction is
a sliding scale test, wherein a strong showing an one
factor may decrease the weight assessed to other faetors
allowing an injunction where
the
probability of success on the merits is low if the Court determines that the moving party 5
likelihood ofirreparable harm is great and the nonmoving party s likelihood of irreparable
harm is very low
Yuvcfv Ilamcd 59 V I 841
854 (V l 2013)
90
Here the Supreme Court has affirmed the trial court 5 ruling that there is an implied
easement across Parcel No 4 26
91
Plaintiffs have suceessfully proven at trial that Drawing No "4654 3 survey map ofthc T57
R O W
with bearings and distances depicts a 2011 wide easement across Parcel No 4 26
92
Defendants expert surveyor report and map Overlays of the T57 easement T61 and T62
maps depict T61 and T62 maps track a similar path ofthe T57 R O W
93 The Intervening Defendants argument that the Supreme Court may have ruled differently it
they were allowed to intervene earlier in these proceedings is misplaced because the Supreme
Court acknowledged the specific purpose of the T61 and T62 maps serve limited significance
39
Underwood & Stryker v élrubult LI 411
CIR. as 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
and were only relevant to those two panels, whereas T57 is relevant to the entire
subdivision 5661/;th at 508 fn 15
94 T61 and T62 arc of limited significance in determining the Dicrrsens‘ intent towards the
remainder 01 the R OW 1d
95 Judging from the size of the right of way it is evident the Dierssens intended to make the
right of way available for ingress and egress to prospective property owners ofPareel Nos
4 26 4 22A 4 27, and 4 28 and their successors
96 Defendants have tailed to show an implied easement does not exist which ironically is the same
implied easement that Defendant Streibich argued was abandoned that is in constant use by
him and the Intervening Defendants
97 A movam suffers irreparable harm where there is certain and imminent harm for which a monetary
award does not adequately compenmte
1’14)er HtlmLtI 59 V I 841 854 (V I 2013)
1fthe
movant will suffer damages that will be ditficult to ascertain, they are considered inadequate "
98 The implied easement existed approximately 37 years before any 0m, of the current Plaintiffs
purchased any of the properties Afier the first purchase in 1994, Defendant Streihich
prevented Plaintitts fiom enjoying the use and benefit of their properties
99 The Supreme Cuurt ofthc Virgin Islands held
[i]n contrast to legal remedies like money
damages, irreparable harm is an equitable relief ”‘2 3R6 & (a v Emma [making Syi
Inc
63 V1544(V12015)
100 Defendants engineering expert Paul Ferreras, evaluated the topography and existing
slopes of the easement in light of govcmment regulations and safety concerns th1t establish
safe dnvable limits (the gTade slupe, width etc that a vehiLle can sately traverse) for road
construction Defendants argued the lowel road which requires uphill road construction
should be used Master Exhzbzt 65 pp 7 8 54 55 66 67 Master Exhlbzl 47 pp
I 3
101
Irrepardble harm has already occurred as tho Plaintiffs have been unable to use the implied
easement for almost 30 years Further the hann is compounded when forced to excavate the
lower road uphill to access theii properties when an implied easement already exists on the
” Sb‘RMCOA LICI Muldwuae ReulL'vmlt Immimem LLC 62 VI
168 188 (2015)
' 1d at 553
40
Underwood & Sfrykcr v Wrath“)! a (1]
(m a5 2024 V1 Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
upper road thereby inevitably forcing Plaintitts to extinguish a property right they already
have to ingress and egress
102 increased traffic flow, as the Intervening Defendants claim, is not a reason tojustify denial
ofinjunetive reliefneither does the temporary disruption oftratlic flow during construction
on Parcel Nos 4 27 and 4 28 outweigh the Dierssens intent to grant the easement for
access to thnse properties
103
As it pertains to the boundary line ofthe implied easement runnin;,y through Delendant
Streibieh’s property at the entrance to his house, harm ifany, can be minimized by using the
southem portion ofthe ZOfieasement away from Streibich 5 property
104 While both surveyors placed their respective Surveyor 5 flags in plate both agreed that the
boundary of the easement mus through the entrance of Parcel No 4 26 but the easement
was in place from 1957 prior to construction of the home built by the Battles in the 19805
105
Streibich does not have a statutorily or contractually granted right to arbitrarily relocate the
easement away 110m his house The Court recognizes Streibieh’s desire to protect and avoid
any property damage to his entrance (as the steps are partially within the easement)
106
The Court finds however that there is sufiieient width for unrestricted vehicular traffic, to
pass without interfering with the Streihieh property Also the hill can be excavated (even
partially) to allow for ingress and egress traffic away from the Streibieh entrance
107
Greater harm will result to the Plaintiffs if they are continuously deprived of the right to
tiaveree the implied easement the Diet ssens intended for vehicular use to access their
properties
108
Greater harm will result to the Plaintiffs than to the Defendants if Plaintiffs are not granted
injunctive relief Neither Detendant has an exclusive right to the easement and because
there is no exclusive interest or right to the right of way the Court finds that Defendants
gutter no harm from unrestricted vehicular use of the easement that they currently enjoy
109 Increased traffic flow during construction or additional residents in the neighborhood does
not outweigh Plaintiffs entitlement to the right 0t way
1 10 Where the discernment oh grantor’s intent is necessary to detennine the actions of
0f the parties, public poliLy dictates that the grantor s intent and wishes must be honored
41
Underwood & S'lrykLr v élrubmh cl (1!
Cm as 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
1 l 1 Maps that are ineurporated into deeds by reference serve a specific purpose and must be
interpreted in conjunction with the deeds and Alig“ with the intent of the gamer
l 12 Based on the evidence presented the implied easement is not a footpath 0r bicyele path
rather Marshall and Sidney Dierssen intended to provide unrestrained perpetual vehicular
access along T57 right of way for ingress and egress only
1 l3 Therefore, the Court Adopts and incorporates into the deeds and title of record the survey
map prepared by Ryan Wisehart as the Cout finds the map to be more preeise through the
inclusion of the exact GPS coordinates bearings and distances to put patties and all
subsequent purchasers on notice of the exact location of the T57 casement
F Conclusion
WHEREFORE pursuant to these Findings of Fact and Conclusions of Law judgment is
entered in fawn of the Plaintiffs
Plaintiffs have prevailed by establishing that the scope of the
T57 implied easement is 101 permanent vehicular use
Both expert Surveyors agree on the
location and the scope of the easement Considering that in 1958 Marshall and Sidney Dierssen
established the original right 0t way across Parcel No 4 22 and had already begun the process
of selling land from the subdivision, the intent was to create access to Parcel No: 4 26, 4 27,
and 4 28 The subsequent division and sales within Parcel No 4 22 a few years later in 1961
had no bearing on the pre existing easement The easement ensured Parcel No 4 22A would not
become landlocked
In 1961 and again in l962
the Dierssens re emphasized their intent to
grant a right of way when they mapped out the estate mad and the secondary estate road on
T61 andT62
Further both experts agree the easement is 20 feet wide across Parcels 4 26 and 4 27
There is only one path that leads from Parcel No 4 22B to Parcel No 4 28 and both experts
agree the easement is located at the entrance of Parcel No 4 22B and terminates at the westem
perimeter line of Parcel No
4 28
Drawing No
3654 3 and graphic map reproductions
depicting the T57 easement
estate roads and parcels are illustrative of Marshall and Sidney
Diersaem
intent to provide a right at way as part of the general development plan of Parcel
No 4
42
UnlILVWDOd& Stalker v S'irubxch a [ll
cm as 2024 VI Super 19
Case No ST 1995 CV 00459
Memorandum Opinion
The Court accepts the calculations and GPS Coordinates submitted with bearings and distances
defined by Drawing No
3654 3 produced by Ryan Wiseharl The drawing shall be filed with 1m.
Government of the Virgin Islands, Office of the I ieutmant Governor Recorder of Deeds office placing
all purchaser: on notice 01 the permamm easement for vehicular ingress and egress only situated at
Parcel No 4 Estate Faber & Harmony
-
e rials order accompanies this xmmorandum opinion
/ ’
/
r
W
w I I
./
m
ate
Renee
s Carly
Senior Sit
g Judge
Superior Court 0
he Virgin Islands
ATTEST
Tamara Charles
Clerk of the Court
ByM
Donna D Donovan
.9 Court Clerk Supervisor QL/ Q91 aafl/
43