ST. CROIX — Bernard Cuffy’s legal battle to access his property via right-of-way that led supporters to remove boulders blocking the entrance before marching up the overgrown dirt road on Emancipation Day in celebration of his 2019 court victory has been settled at the highest level following an appeal.
The Virgin Islands Supreme Court recently affirmed the decision of the VI Superior Court that dismissed a trespass claim filed by neighbors and allowed Cuffy to clear thick foliage from an access road leading to his property in Estate Clairmont on St. Croix.
The case had to do with a dispute by competing residents over a presumed right-of-way located in the Windsor Forest Estates subdivision of Estate Clairmont. The contested road runs between six land plots and ends at Cuffy’s property.
Before purchasing the property in a U.S. Marshals Service auction to give to his son as a wedding gift, Cuffy confirmed he could access it through a right-of-way as depicted on a certified copy of the cadastral map, according to a court document.
The Supreme Court, in an opinion filed Tuesday signed by Associate Justice Maria Cabret, ruled that the Superior Court correctly found an implied easement existed based on the reference to the right-of-way on the map.
The day after the Superior Court’s ruling, residents gathered in solidarity with Cuffy and his wife, Athlene, at the entrance to their property on the 171st anniversary of Emancipation Day on July 3, 2019. After Bates Trucking & Trash Removal used a crane to remove two boulders blocking access to the right-of-way, the group made its way up the hill to the couple’s property.
After purchasing the property and realizing the right-of-way to access it was blocked by vegetation, Cuffy planned to clear the road. Patricia Babij, one of the residents whose property extends to where the easement runs through, opposed his plan because the access road had never been used for that purpose since the inception of the subdivision.
After Cuffy declined Babij’s request to relinquish his rights to using the road or sell his property to her to stop him from clearing it, he applied for an Earth Change Permit to the Virgin Islands Department of Planning and Natural Resources in March 2019. He began clearing the overgrown road with a machete and weedwhackers before his application was approved. Babij continued to oppose Cuffy’s plan to remove the foliage to the point police intervention was required on multiple occasions.
Babij filed a complaint in the Superior Court on April 17, 2019 that contained a motion for temporary restraining order and/or preliminary injunction, a request for permanent injunction, and one count pleading a claim for trespass. The Superior Court denied the requested TRO after DPNR indicated at a hearing that Cuffy’s permit had not yet been issued, and advised the parties to “amicably resolve the matter.”
After DPNR issued the permit to Cuffy on May 17, 2019 to clear the land for “site access,” Babij filed another TRO application. During a TRO hearing, one of the neighbors, Brian Devlin, stated that the right-of-way had been abandoned and clearing the road would harm mahogany trees and damage utility instruments (a VI Water and Power Authority utility pole, underground WAPA lines, and telephone lines) located on the disputed roadway. After granting the TRO, the Superior Court scheduled a full hearing on the merits.
During a trial held on June 24, July 1, and July 2, 2019, Babij called an expert in land surveying and engineering, Marshal Walker Jr., who testified that Cuffy had a one-seventh interest in the right-of-way and should use it without driving. A neighbor, Austin McKenzie Sr., testified that he knew about the easement when he purchased his property in 2003 and that he could have used it to access his property but opted to trade a section of his plot with another owner to arrange an alternate path of access. Babij rested her case after calling both witnesses.
Babij, Devlin, and McKenzie were all plaintiffs in the case, along with five other neighbors. The plaintiffs, including two couples, represented the six neighbors.
Cuffy called his own expert in land surveying and engineering, Jeffrey Bateman, who testified that the disputed land existed as a roadway dating back to 1967 after reviewing four maps from the Office of the Lieutenant Governor. He identified the utility instruments, stairs, and a septic system as encroachments on the right-of-way. Leia LaPlace-Matthew, a DPNR official who reviewed Cuffy’s permit application, testified that one of the maps Bateman reviewed, as well as two others, showed an easement for access or a roadway running through six land plots leading to Cuffy’s property. A public surveyor testified that one of the maps delineated the property as a right-of-way, and that Cuffy had a right to develop the road and access his property. The owner of a heavy equipment company testified he could clear the road without damaging the existing encroachments, and that the trees on the roadway were not mahogany trees and should be removed.
After the presentation of evidence and oral arguments during the three-day trial, the Superior Court denied the plaintiffs’ claim for injunctive relief. The Superior Court issued its amended memorandum opinion on August 16, 2019, denying Babij’s claim for injunctive relief and dismissing the claim for trespass. The Superior Court reasoned that Babij failed to show a probability of success on the merits because no proof was offered that the right-of-way was “extinguished, relocated, or otherwise changed.”
The appellants who appealed the Superior Court decision were Babij, and Brian and Cindy Devlin.
During a Supreme Court hearing on the matter, attorney Yohanna Manning, representing the appellants, argued his clients held property deeds that did not show the easement.
“We introduced our deeds, and we showed that that is our land,” he said.
Attorney Rhea Lawrence, representing Cuffy, argued there was an easement.
“All of the people that testified examined the drawings and said that easement existed,” she said.
Lawrence argued a landowner who purchased a property knowing an easement existed cannot claim foul once another landowner who purchased a property needs the easement.
The Supreme Court noted in its opinion that although there was no “express easement,” the Superior Court could have determined that there was an “implied easement.” In addition to one of the maps being referenced in Cuffy’s deed and McKenzie’s deed, the Supreme Court noted the testimony of witnesses provided further support for the Superior Court to find an implied easement. The Supreme Court pointed out that McKenzie and Brian Devlin also testified that they were aware of the road that was originally planned for the subdivision. Despite mere allegations that the right-of-way was abandoned, the Supreme Court noted that Babij failed to further develop the theory.
“To the contrary, there was both documentary and testimonial evidence that the right-of-way was intended for all landowners to be able to access their individual properties from the inception of the subdivision,” according to the Supreme Court’s opinion. “Based on all the evidence before it, the Superior Court did not err in finding that Babij did not prove their claims by a preponderance of the evidence. The Superior Court inferred that there was an easement based on the strong evidence of the map referring to the right-of-way and Babij did not present adequate evidence to rebut that inference.”
