May 18, 2026
Ingress and egress are fundamental characteristics defining the usefulness of property. Sometimes, access runs across another owner’s lot. Many lots lack sufficient (or any) frontage on the right of way to get a vehicle through without an easement. Driveway easements inevitably result in disagreements, or at least tension, in the neighborly relations between the “landlocked” home and the property across which the easement lies. This gives rise to lawsuits concerning fences, walls, stones, trees, grading, shrubs or other objects placed within the easement. On October 21, 2021, I have posted an article about this to this blog, “Problem with Pipestems.”
In April 2026, the Supreme Court of Virginia published a new judicial opinion that provides clarification about this. In this case, Caryn and David Yost relied upon a 50 foot wide easement across the lot owned by Thibault Enterprises LLC to access their home in Dinwiddie County, Virginia. Thibault placed fencing, vines and hay bales within the easement. The gravel road is narrower than the 50 feet width of the easement. The Yosts could use the gravel road to drive to and from their home, despite the presence of the items located elsewhere in the easement. None of the items encroached upon the gravel road.
Is Thibault barred from placing anything in the easement that practically narrowed its width in certain areas, or are such things permissible so long as the purpose of the easement remained protected? The easement stated, “. . . the right of ingress and egress over an outlet road, fifty (50) feet in width, running from the southwestern corner of the [Yosts’ property] to State Route #601.” The gravel road is approximately 12 feet wide.
The Supreme Court opinion summarizes several points of law from judicial precedent. Because a party in Thibault’s position remains entitled to make reasonable use of the land burdened by the easement, not all encroachments are forbidden. When an easement is limited to a particular purpose, the burdened parcel may use the land in ways that are not inconsistent with the neighbor’s easement right. This style of analysis requires courts to consider factors beyond the wording of the deed and whether the object narrows the width for traffic purposes. Courts consider whether trees or shrubs would obstruct emergency vehicles from using the driveway or hamper snow removal. If the construction of a fence would prevent two vehicles from passing each other along the driveway in the easement, this could be an impermissible burden on a driveway easement.
In addition to case law, Virginia has a statute, Code § 55.1-305:
Unless otherwise provided for in the terms of an easement, the owner of a dominant estate shall not use an easement in a way that is not reasonably consistent with the uses contemplated by the grant of the easement, and the owner of the servient estate shall not engage in an activity or cause to be present any objects either upon the burdened land or immediately adjacent to such land that unreasonably interferes with the enjoyment of the easement by the owner of the dominant estate. For the purposes of this section, “object” does not include any fence, electric fence, cattle guard, gate, or division fence adjacent to such easement as those terms are defined in §§ 55.1-2800 through 55.1-2826. Any violation of this section may be deemed a private nuisance, provided, however, that the remedy for a violation of this section shall not in any manner impair the right to any other relief that may be applicable at law or in equity.
Note that Va. Code § 55.1-305 is an important statute in any easement dispute because it articulates a statutory basis for a nuisance action. In Yost v. Thibault, the Supreme Court articulated a general rule that might allow more options for the parcel burdened by the neighbor’s driveway:
Consistent with our cases and Code § 55.1-305, we hold that the owner of a servient estate is not automatically required to remove all objects intruding into an easement of a defined width. Instead, courts reviewing claims of an impermissible encroachment upon an easement, whether of defined width or otherwise, should (1) examine the language of the deed to determine the purpose of the easement and the intent of the parties; and (2) evaluate whether the actions of the owner of the servient estate unreasonably interfere with the easement.
The Supreme Court reversed the Court of Appeals’ ruling, judging in favor of Yost, finding that for an ingress and egress easements, the objects placed in portions of the easement not used for the gravel driveway were reasonable. The court added a footnote that the reasonableness of the item’s location may change in the future.
We recognize that a change in circumstances may require a different answer. For example, if traffic increases along the gravel road, making the width of the existing road inadequate for ingress and egress, or if erosion renders driving over the road impracticable, it may become necessary to use the full width of the easement for ingress and egress.
The Yost v. Thibault Enterprises LLC case does not explain how to resolve difficulties where an express easement contains ambiguous language. In the 2023 case, Forbes v. Cantwell, the easement stated, “[t]here is reserved for the benefit of the owners of Lot 6 and their heirs and successors in title, a 40[-]foot easement . . . for the purpose of providing. . . fencing and landscape buffer for the benefit of Lot 6.” The Court of Appeals found the words, “fencing and landscape buffer” to be ambiguous. In a situation where the deed does not adequately explain the purpose of the easement, the Court may take evidence regarding the intentions of the parties from the circumstances surrounding the transaction. This raises thorny questions in many cases because the parties may disagree as to whether the language is ambiguous, or what evidence is relevant to resolve the issue of intention.
The Yost v. Thibault Enterprises LLC case does not address what to do when the burdened owner installs a fence and gate across the width of the easement, where the gate is narrower than the full width of the easement. For example, what if Thibault installed a gate that was only 12 feet wide? In Yost, the court allowed fencing within the easement area, but there was not a gate providing the sole opening through the easement. Prior to Yost, some courts concluded that if the easement was 50 feet wide, any gate must be no less than 50 feet wide, absent some express term to the contrary.
Developers try to prevent easement disputes from arising by telling lot owners to obtain HOA approval. Recorded covenants often require committee approval of a design application before any fence, wall, pillar or gate may be erected or altered, including easements. HOA’s ordinarily forbid owners from constructing things that interfere with sight lines for motorists.
In addition to HOA’s, local governments regulate fences and walls in zoning ordinances. This is why one ordinarily sees short fences in front yards and taller fences in backyards. The HOA and county rules operate independently of each other, such that the homeowner must comply with both, even if they contain different standards.
In most cases, HOA and county rules are more lenient regarding trees, shrubs and grading than structures. A vegetative buffer is often the best option.
A homeowner ought to consult with an attorney before constructing anything in an easement or reacting to a neighbor’s effort to obstruct the easement.
Legal Citations:
Thibault Enterprises, LLC v. Yost, 927 S.E.2d 806 (Va. Supr. Ct. Apr. 9, 2026).
Forbes v. Cantwell, 78 Va. App. 454 (2023).
October 21, 2021 article to on blog, “Problem with Pipestems.”
