PRESENT: All the Justices
OLD DOMINION BOAT CLUB
OPINION BY
v. Record No. 130062 JUSTICE S. BERNARD GOODWYN
October 31, 2013
ALEXANDRIA CITY COUNCIL,
ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John J. McGrath, Jr., Judge Designate
In this appeal, we consider whether the acquisition of a
fee simple interest in a public way by a city, pursuant to a
local ordinance, extinguishes a pre-existing easement over that
way when there has been no implied or express dedication of
that easement by its holder.
Background
Old Dominion Boat Club (ODBC) filed an amended complaint
against the City of Alexandria and Alexandria City Council
(collectively, the City), as well as 106 Union Dublin, LLC and
106 Union Ireland, LLC (collectively, the Union parties),
seeking to enforce a purported private easement over a public
street, Wales Alley, after the City granted a special use
permit and license to the Union parties, allowing the Union
parties to construct an outdoor dining deck on Wales Alley.
ODBC alleged that the outdoor dining deck, authorized by the
City, would encroach upon an easement ODBC had been deeded over
Wales Alley prior to its becoming a public street. ODBC sought
a declaration of the existence of its vested easement and a
permanent injunction against the City and the Union parties
prohibiting them from obstructing its easement.
In its final order, the Circuit Court of the City of
Alexandria found that the fee simple interest in Wales Alley
was dedicated to the City and the City accepted Wales Alley as
a public way and therefore held authority over it, pursuant to
City of Alexandria Charter Section 2.03(a), to “lay out, open,
extend, widen, narrow or close” the alley that had become a
public way. Although it had previously found that ODBC had
never expressly or implicitly dedicated its easement to the
City, the circuit court ruled that the City’s acceptance of the
fee simple interest extinguished ODBC’s easement. The circuit
court entered judgment for the City and the Union parties.
ODBC appeals.
Facts
The unchallenged factual background of this matter was
thoroughly discussed by the circuit court in its Opinion and
Order dated April 22, 2011 (the Opinion and Order), and is
recounted here as relevant. The alleged “vested” easement
relied upon by ODBC arises out of a deed of partition executed
July 10, 1789 between John Fitzgerald of Alexandria, Virginia,
and Valentine Peers of Port Tobacco, Maryland. The July 10,
1789 deed divided the land commonly or jointly owned by
Fitzgerald and Peers according to a plat or drawing that was
2
apparently made part of the deed. 1 In the July 10, 1789 deed,
after laying off the specific parcels that were being released
or conveyed to each of them as sole owners, the grantors
provided in the last paragraph of the deed as follows:
and moreover the said parties do covenant assure and
Confirm by these presents each to other the free use
and passage of the several Streets and Alleys in
common now left by them from their grounds for the
more easy communication with the public main Streets
and the river, Viz; One alley of twenty feet wide
running from Water to Union Street, and one Street or
Alley of thirty feet wide running from Union Street to
the river . . . .
The property referred to as the “Street or Alley of thirty
feet wide” has been known as Wales Alley since at least the
nineteenth century. Presently Wales Alley runs between Union
Street and the Strand. 2 The easement was and purportedly
remains appurtenant to the parcels now owned by ODBC, a
successor in interest to John Fitzgerald, and 106 Union
Ireland, LLC, a successor in interest to Valentine Peers.
In the Opinion and Order, the circuit court found that
from the time of the original 1789 deed until approximately
1
The copper plate version of the deed prepared by the
scrivener contains the plat directly before the writing. The
deed allots various parcels of land by metes, bounds and
monuments, and refers to such descriptions as “per plat above.”
2
Although the alley or street in question originally ended
at the river, through accretion and fill there is now solid
land at the eastern end of Wales Alley, which is called the
Strand.
3
1970, there was relatively little known of the exact uses of
Wales Alley. It was originally part of a bustling seafront
that gradually declined as a port. The area became more of a
heavy industrial center along the waterfront, featuring a
torpedo factory, a cement plant and a Ford plant at various
points in time. In 1935, ODBC bought its property. From 1935
until at least 1970, there were incidental references to Wales
Alley as a private alley. Such notations were made in
documents and maps maintained by the City of Alexandria.
In the spring of 1970, Dockside Sales, Inc. (Dockside
Sales), 106 Union Ireland, LLC’s predecessor in title, erected
two wooden fences that blocked the full length and width of
Wales Alley from Union Street to the Strand. ODBC took
exception to the closing of Wales Alley, and on May 5, 1971,
ODBC filed a bill of injunction against Dockside Sales in the
Corporation Court of the City of Alexandria. 3 In 1972, the
corporation court ruled “that Wales Alley is an established
public way and that the Complainant [ODBC], as an adjoining
owner, has a vested easement of way in Wales Alley.” It
ordered that the obstructions in Wales Alley be removed.
3
This court was the predecessor of the Circuit Court of
the City of Alexandria. See Netzer v. Reynolds, 231 Va. 444,
446, 345 S.E.2d 291, 292 (1986).
4
After 1972, there were various references to Wales Alley
as a public alley. In the 1980s and 1990s, the City approved
various site plans submitted by developers that required
installation of landscaping and erection of lighting fixtures
in Wales Alley. The City also approved a building expansion on
the north side of Wales Alley.
In approximately 1990, the City paved Wales Alley, erected
no parking signs and began issuing traffic citations for
violations of the no parking signs. Also in 1990, the City
permitted construction of a brick sidewalk of approximately
four to five feet in width along a portion of the north side of
Wales Alley. The City also erected a public street sign
indicating the intersection of Wales Alley and Union Street.
Additionally, from time to time the City repaired potholes in
Wales Alley and frequently performed maintenance and repairs of
the brick sidewalk along the north side of Wales Alley.
In May 2010, the Union parties applied for and were
granted by the City a special use permit to operate a
restaurant in a building adjacent to Wales Alley. Also, the
City subsequently granted the Union parties a license to build
an elevated deck on Wales Alley, which would obstruct a large
portion of the alley. The City further declared that the alley
would be open only to one-way vehicular traffic. This
litigation followed.
5
After hearing the parties’ evidence and arguments, the
circuit court noted in its Opinion and Order that neither ODBC
nor the Union parties claim a fee simple interest in Wales
Alley. It found that Wales Alley had been used by the public
as a public alley for over a hundred years, and the alley must
be considered as having been dedicated by “long public use.”
The court also found that the City had exercised dominion and
control over Wales Alley by paving it, repairing potholes,
making numerous repairs to the brick sidewalk, posting public
street signs and installing no parking signs, and that these
activities were sufficient to prove an acceptance of the
implied dedication of the fee simple interest in the property,
pursuant to City of Alexandria Charter Section 2.03(a).
However, concerning ODBC’s easement, the circuit court
found that neither the City of Alexandria nor abutting
landowners had interfered with ODBC’s use of its 30-foot
easement over Wales Alley. It went on to state that “[t]here
is nothing in the evidence which would show clearly or
otherwise, that ODBC and its predecessors in title had taken or
permitted any action or entered into any contract which would
indicate that they had ‘dedicated’ their right to a thirty foot
right of way over Wales Alley.” The circuit court noted that
[t]he mere fact that ODBC has not protested the
public use of Wales Alley for a pedestrian and
vehicular passage between Union Street and The Strand
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is not an abandonment of their vested easement or an
indication that their “easement” was being “dedicated”
to the public. It, at most, was a “dedication” by
long public use of whatever rights it may have had in
the fee of the land which was used as an alley.
In concluding its Opinion and Order, the circuit court
acknowledged but declined to resolve the conflicts between the
City’s ownership rights and ODBC’s easement rights in Wales
Alley. Instead, it resolved the case in ODBC’s favor by ruling
that the Union parties were barred, by the doctrine of res
judicata, from constructing the deck because the Union parties
were successors in interest to Dockside Sales, the defendant in
the 1972 case that had been enjoined from blocking the alley.
The City and the Union parties appealed that decision to this
Court.
In an order dated May 25, 2012, this Court reversed the
circuit court, holding that the 1972 “Dockside Sales” case did
not provide a basis under the doctrine of res judicata for
determining the City’s rights in the alley and, by extension,
what rights they might license to the Union parties. The case
was remanded to the circuit court for further proceedings.
On remand, with the agreement of the parties, the circuit
court took no additional evidence but allowed additional
argument and briefing. Thereafter, in an Opinion and Order
dated October 9, 2012, the circuit court stated:
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For the reasons stated in this Court’s earlier
Opinion and Order dated April 22, 2011 (pp. 9-17), the
Court finds that ODBC’s interest in Wales Alley was
dedicated to the City and that interest has been
accepted by the City of Alexandria. Therefore, the
City has the authority to, inter alia, “lay out, open,
extend, widen, narrow . . . or close . . .” the alleys
of the City, including Wales Alley.
The circuit court noted that what, if any, compensation to
which ODBC might be entitled for the extinguishment or
curtailment of its rights in Wales Alley was not before the
court. The circuit court dismissed ODBC’s complaint and
entered judgment for the City and the Union parties. ODBC
filed a motion seeking reconsideration of this ruling, which
was denied on October 30, 2012.
Analysis
ODBC claims that the circuit court erred in failing to
recognize its continuing vested easement in Wales Alley. It
also claims that the circuit court erred in failing to enjoin
the City from authorizing others to make obstructions in Wales
Alley and in failing to enjoin the City or the Union parties
from erecting any structures in Wales Alley.
The City and the Union parties claim that any private
rights held by ODBC did not survive dedication pursuant to City
8
of Alexandria Charter Section 2.03(a) 4 and acceptance of the fee
simple interest in the alley as a public way by the City. They
claim that once a jurisdiction accepts dedication of a right-
of-way, putative private access rights are extinguished and the
holder of an easement is only entitled to reasonable and
adequate access, like any other member of the public.
It is undisputed that the fee simple interest in Wales
Alley was dedicated to and accepted by the City of Alexandria.
The fee simple interest in Wales Alley belongs to the City.
4
Section 2.03 of the City of Alexandria Charter states:
In addition to the powers granted by other
sections of this charter the city shall have the
power:
(a) To lay out, open, extend, widen, narrow,
establish or change the grade, or close, vacate,
abandon, construct, pave, curb, gutter, grade,
regrade, adorn with shade trees, otherwise improve,
maintain, repair, clean and light streets, including
limited access or express highways, alleys, bridges,
viaducts, subways and underpasses, and make and
improve walkways upon streets and improve and pave
alleys within the city; and the city shall have the
same power and authority over any street, alley or
other public place ceded or conveyed to the city or
dedicated or devoted to public use as over other
streets, alleys and other public places; provided,
further, that whenever any ground shall have been
opened to and used by the public as a street or alley
for ten years it shall be considered as dedicated to
the public and the city shall have the same authority
and jurisdiction over and right and interest therein
as it has over other streets.
(Emphasis added.)
9
Whether ODBC’s easement was extinguished upon dedication of the
fee simple interest of the servient property is a question of
law we review de novo. Westgate at Williamsburg Condo. Ass’n
v. Philip Richardson Co., 270 Va. 566, 574, 621 S.E.2d 114, 118
(2005) (“We review questions of law de novo, including those
situations where there is a mixed question of law and fact.”).
An easement is “a property interest distinct from the fee
and an encumbrance upon it.” Ocean Island Inn, Inc. v. City of
Va. Beach, 216 Va. 474, 476, 220 S.E.2d 247, 250 (1975). A
dedication is a gift to the public. Lynchburg Traction & Light
Co. v. City of Lynchburg, 142 Va. 255, 266, 128 S.E. 606, 609
(1925). “The donee cannot dictate the terms of the gift.” Id.
“Common law dedication involves the precise right offered, not
a different right.” Burns v. Board of Supervisors, 226 Va.
506, 516, 312 S.E.2d 731, 736 (1984). Thus, the dedication and
acceptance of the fee simple interest in Wales Alley only
transferred that fee simple interest to the City subject to the
pre-existing easement.
In City of Staunton v. Augusta Corp., 169 Va. 424, 438,
193 S.E. 695, 700 (1937), this Court stated that a charter
provision such as City of Alexandria Charter Section 2.03(a)
“requires the same evidence of dedication, to put it in
operation, as the law requires to raise an implication of a
common-law dedication from mere user of a way.” (Quoting
10
Keppler v. City of Richmond, 124 Va. 592, 604, 98 S.E. 747, 751
(1919)). For ODBC’s easement interest in Wales Alley to be
transferred to the City pursuant to City of Alexandria Charter
Section 2.03(a), it must be proven that there was an implied or
express dedication of that easement to the City by ODBC. The
parties agree that there was no express dedication.
Implication of a common law dedication may be found based
upon “long use by the public of the land claimed to be
dedicated.” City of Staunton, 169 Va. at 433, 193 S.E. at 698.
But,
[t]o constitute a dedication, there must be an
intention to appropriate the land for the use and
benefit of the public. The intention, the animus
dedicandi, is the vital principle of the doctrine of
dedication. The acts and declarations of the
landowner indicating such intention must be
unmistakable in their purpose, and decisive in their
character, to have that effect.
Id. (quoting Harris v. Commonwealth, 61 Va. (20 Gratt.) 833,
837 (1871)).
User, in order to constitute proof of dedication,
must have been by the public, and adverse to and
exclusive of the use and enjoyment of the property by
the proprietors, and not a mere use by the public
under and in connection with its use by the owners in
any manner desired by them; otherwise it is
insufficient, no matter how far beyond the period of
limitations it is extended.
Id. (quoting 8 Ruling Case Law § 29, at 904 (William M.
McKinney & Burdett A. Rich eds., 1915)); see 3232 Page Ave.
Condo. Unit Owners Ass’n v. City of Va. Beach, 284 Va. 639,
11
649, 735 S.E.2d 672, 677 (2012) (“Where, in addition to long-
term public use, there has been an acquiescence in the exercise
of dominion and control over the property,” dedication may also
be implied.).
ODBC enjoys not title to Wales Alley, but rather an
easement for “the free use and passage” across it. That was
and is the full extent of ODBC’s property interest, and thus it
only had authority to object to actions which prevented that
limited use. ODBC was not entitled to dominion and control
over the easement. Evidence of use hostile or adverse to, or
which interfered with, ODBC’s “free use and passage” easement
would be necessary to prove an implied dedication of the
easement.
After hearing evidence in this case, the circuit court
found that neither the City of Alexandria nor abutting
landowners had interfered with ODBC’s use of its 30-foot
easement over Wales Alley, and that ODBC had not abandoned its
easement by acquiescing in the public’s concurrent use of the
alley for pedestrian and vehicular passage. These findings are
not disputed. Thus, the evidence in this case is insufficient
to support a finding that ODBC expressly or impliedly dedicated
its easement to the City. Therefore, pursuant to City of
Staunton and Keppler, City of Alexandria Charter Section
2.03(a) could not have operated to extinguish ODBC’s interest
12
in its easement over Wales Alley, or to transfer such easement
rights to the City.
Alternatively, the City and the Union parties claim that
ODBC’s easement over Wales Alley was extinguished when its
purpose was fulfilled and it was no longer necessary. They
cite American Oil Co. v. Leaman, 199 Va. 637, 101 S.E.2d 540
(1958), as authority for that proposition. They claim that
“once the alley became public, the risk of private interference
with access to the adjoining public streets ended, so the
purpose of [ODBC’s] easement was no longer relevant,” and it
was extinguished.
We believe the City and Union parties misconstrue our
precedent. In American Oil Co., we said:
Easements once created may be extinguished in the
following ways: (1) By a cessation of the purposes
for which the easement was created; . . . .
If the particular purpose for which the easement
is granted is fulfilled or otherwise ceases to exist,
the easement also falls to the ground.
199 Va. at 652, 101 S.E.2d at 552 (quoting 1 Frederick D.G.
Ribble, Minor on Real Property §§ 106-107, at 145-46 (2d ed.
1928)).
In American Oil Co., we further explained the principle as
follows:
It has been said that when an easement is created
for a particular purpose, it comes to an end upon a
cessation of that purpose, which means, apparently,
13
that an easement which is created to endure only so
long as a particular purpose is subserved by its
exercise, comes to an end when it can no longer
subserve such purpose. The question then is, in each
case, what is the particular purpose to be subserved
by the easement, and this, in the case of an easement
created by grant is a question of intention.
Id. at 652-53, 101 S.E.2d at 552 (quoting 3 Herbert T. Tiffany,
The Law of Real Property § 817, at 368 (Basil Jones, ed., 3d
ed. 1939)). Additionally, realizing we were dealing with an
issue of first impression, we specifically noted that “[t]he
extinguishment of easements by cessation of the purpose for
which they were granted” has been recognized by numerous texts
and decisions, and we provided citations thereto. Id. at 653,
101 S.E.2d at 552.
Cessation of purpose is essential. Without cessation of
the purpose for which the easement was created, an express
easement does not end when its purpose is simply fulfilled or
when it is no longer necessary unless its express terms so
state.
An easement’s purpose depends upon the intent that can be
determined from the deed granting the easement. See id. at
652, 101 S.E.2d at 552. When an easement is granted by a deed,
unless it is ambiguous, “the rights of the parties must be
ascertained from the words of the deed.” Gordon v. Hoy, 211
Va. 539, 541, 178 S.E.2d 495, 496 (1971).
14
In American Oil Co., the deed stated that an “easement of
right of way” had been granted “to be used . . . as a means of
ingress and egress . . . out to the public highway known as
Goodwyn’s Neck Road.” 199 Va. at 643-44, 101 S.E.2d at 546.
The public highway the easement was created to reach was later
permanently closed by the county. Another new highway was
opened, but the new highway did not connect with the easement,
turning the easement into a cul-de-sac. Id. at 649, 652, 101
S.E.2d at 550, 551-52. This Court held that because the
easement’s purpose was to provide access to a highway, the
easement was extinguished when the highway was closed because
the easement could no longer serve its purpose. Id. at 652-53,
101 S.E.2d at 551-52.
In Pyramid Development v. D&J Associates, 262 Va. 750, 553
S.E.2d 725 (2001), the relevant deed granted an easement “to
use in common the said spur tracks and sidings, and so much of
the property . . . abutting said spur tracks and sidings as may
be necessary to afford the property hereby conveyed . . . free
and convenient access to and use of the said spur tracks and
sidings.” Id. at 755, 553 S.E.2d at 728 (internal citations
omitted). We held that the language of the deed was not
ambiguous and that “the purpose of the easement was expressly
limited to allowing access to the spur tracks and sidings, and
nothing more.” Id. Therefore, “[w]hen the rail service was
15
discontinued, the purpose of the easement, which was to allow
access to [and use of] the spur tracks and sidings, ceased to
exist,” and the easement was extinguished. Id. at 756, 553
S.E.2d at 728-29.
In this instance, the relevant deed provided for a 30-foot
easement across what is now known as Wales Alley. The deed
stated that its purpose was to provide “free use and passage of
the several Streets and Alleys . . . for the more easy
communication with the public main Streets and the river.” The
continuing purpose of the easement is to provide more easy
communication with the public main streets. Changing Wales
Alley to a public street does not result in a cessation of the
purpose of the easement; it merely facilitates the easement in
continuing to fulfill its ongoing purpose. Because the
conversion of Wales Alley to a public street did not result in
a cessation of the purpose for which the easement was granted,
ODBC’s easement over Wales Alley was not extinguished when
Wales Alley became a public street. Therefore, we hold that
the circuit court erred in failing to recognize ODBC’s
continuing vested easement in Wales Alley.
Conclusion
Accordingly, for the reasons stated above, the judgment of
the circuit court will be reversed. We hold that ODBC has a
16
vested easement over Wales Alley and remand the case to the
circuit court for entry of appropriate injunctive relief.
Reversed and remanded.
17