“We must discern the meaning of ‘present’,” the Virginia Supreme Court says, construing a 1936 road easement that ran “along present mean high water” level. Did the easement in White Marsh Beach, Hampton, move as the shoreline moved, or did it stay where it was, and sink beneath the waves?
The damnable slipperiness of the terms “current” and “present” epitomize the difficulty of legal drafting, of trying to use words to reach across time and impose a coherent will on a changing world. Do these words mean at the time the words are written, signed, ratified or legislated? Or at the time when they are read, interpreted, applied? I and other lawyers struggle with that in family law, and so did the property lawyers, judge and justices in Marble Technologies, Inc. v. Mallon (6/4/15).
A deed, with a map attached, reserved a road easement “Along Present Mean High Water.” It also gave precise compass points for one end of the road and a slight bend in it, and referred to a stake marking one end.
The Court resorted to Webster’s Dictionary, which defined “present” as “now existing or in progress: begun but not ended: now being in view, being dealt with, or being in consideration at this time: not past or future: contemporary.”
And especially since there were fixed “metes and bounds” and a fixed point involved, there was no ambiguity, and no indication that the easement was moveable, Justice Goodwyn wrote.
So the Court reverses the Circuit Court’s decision that the easement moved. And it finds that the easement is extinguished because it cannot be used for its original purpose, as a road, as it is now under the Chesapeake Bay.