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


                                  6
     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:




                                7
          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.




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