Brian Fernaays v. Isle of Wight County

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 14, 2025
• Docket: 23-2296
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-2296

BRIAN & SUSAN FERNAAYS,

Plaintiffs - Appellants,

and

LISA RHODES, Representative of the Estate of Otis Rock; REAL PROPERTY KNOWN AS TAX PARCEL NOS.: 34H-01-031 AND 34H-01-032,

Plaintiffs,

v.

ISLE OF WIGHT COUNTY,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:21-cv-00099-AWA-LRL)

Argued: May 6, 2025 Decided: July 14, 2025

Before DIAZ, Chief Judge, NIEMEYER, Circuit Judge, and Matthew J. MADDOX, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief Judge Diaz and Judge Maddox joined. USCA4 Appeal: 23-2296 Doc: 76 Filed: 07/14/2025 Pg: 2 of 10

ARGUED: Joseph Very Sherman, POOLE BROOKE PLUMLEE PC, Virginia Beach, Virginia, for Appellants. Donald Rossen Schuyler Greene, PENDER & COWARD, P.C., Suffolk, Virginia, for Appellee. ON BRIEF: William B. Newman, POOLE BROOKE PLUMLEE, P.C., Virginia Beach, Virginia, for Appellants.

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NIEMEYER, Circuit Judge:

Brian and Susan Fernaays own a house on lot 31 in Brewers Creek Subdivision in

Isle of Wight County, Virginia, and at the edge of their property and shared with the

adjacent lot, lot 32, lies a 20-foot “drainage easement” that extends 10 feet onto each lot.

An underground stormwater drainage pipe lies within the easement and runs from a storm

drain in the street in front of the lots to a natural ravine behind the lots from which

stormwater then drains into Brewers Creek. From a loss of support over the years, sections

of the concrete pipe pulled apart, such that stormwater was able to escape from the drainage

pipe and cause substantial erosion on both lots 31 and 32. The Fernaayses claim that it will

cost roughly $150,000 to repair the drainage pipe and restore the surrounding area.

They commenced this action against Isle of Wight County, claiming that the

drainage easement is owned by the County and therefore that the County has a duty to

maintain the pipe within the easement. They alleged that the County’s failure to maintain

and repair the pipe caused an unconstitutional taking of their property under both the

Virginia Constitution and the U.S. Constitution.

Reviewing the subdivision plat and accompanying Declaration of Covenants and

Restrictions filed in the County’s land records when the subdivision was created, the

district court held that the easement was never “dedicated” to the County and that the

County therefore had no duty to maintain the drainage pipe. Accordingly, it entered

summary judgment in favor of the County. We affirm.

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I

Brewers Creek Partnership created Brewers Creek Subdivision in 1989 on roughly

50 acres, consisting of three streets and 50 lots that fronted onto the streets, all as depicted

on the subdivision plat that was filed in the County land records. The Partnership also filed

a “Declaration of Covenants and Restrictions” to subject the lots “to certain restrictive

covenants and conditions . . . running with the land.”

The recorded plat depicts, in addition to the 50 lots and three streets, two well lots,

a park, and five easements. Specifically, the plat shows an easement consisting of a 5-foot

strip contiguous to State Route 661, which abuts the subdivision, labeled, “5′ hereby

dedicated for road widening”; a “20′ easement for future water line extension” on the

property line between lots 33 and 34; a “15′ easement for water treatment plant discharge”

on lot 4; and a “20′ drainage easement” on the property lines between lots 6 and 7 and again

between lots 31 and 32. The plat was signed by Brewers Creek Partnership with the

certification that it was dedicating “all streets, alleys, walks, parks, and other open spaces

to public use as noted.” And the Declaration of Covenants and Restrictions further provides

with respect to easements:

Easements shown on the aforesaid plat for streets, drainage and utilities are for the benefit of the owners of all lots in said plat and may be freely used by the County of Isle of Wight for the benefit of the owners of said lots and their assigns, as well as the general public, provided, however, that in any resubdivision or rearrangement of said lots, [the Partnership] retains the right to relocate the said easements to conform to such resubdivision or rearrangement.

Brian and Susan Fernaays purchased lot 31 and the new house on it in September

1998, subject to the plat and the Declaration of Covenants and Restrictions. Some 20 years

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later, in 2018, they noticed erosion occurring within the drainage easement on both their

property and lot 32, and the erosion has increased ever since. Pictures in the record show

several separated sections of concrete drainage pipe and extensive erosion around them.

The repair of the drainage pipe and the restoration of the surrounding area will, according

to the Fernaayses, cost roughly $150,000. When the Fernaayses notified the County of the

issue, the County refused to repair the damage, disclaiming any ownership of the drainage

easement or the pipe within it and thus any duty to undertake repair.

The Fernaayses then commenced this action against the County, alleging that it had

become the owner of the 20-foot easement by dedication when the subdivision was created

and that it therefore had a duty to maintain the drainage pipe within the easement.

Accordingly, the Fernaayses claimed that the County is responsible for the damage

resulting from its failure to maintain the pipe. They alleged that, because the County

damaged their property without compensation, it violated Article I, Section 11 of the

Virginia Constitution, and it took their property without compensation, in violation of the

Fifth Amendment to the U.S. Constitution.

The County disputed the Fernaayses’ claims, contending that it did not own either

the drainage easement or the underground pipe within it and therefore had no obligation to

repair damage to the pipe and the surrounding area. It argued that the documents relied on

by the Fernaayses did not, in fact, effect a dedication. It also introduced uncontroverted

evidence that it did not install the pipe, and it had never maintained it. And because it

neither owned the drainage easement nor maintained the pipe, it could not, according to

the County, be held responsible for any damage resulting from the deterioration of the pipe.

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On cross motions for summary judgment, the district court granted judgment to the

County. It concluded that Brewers Creek Partnership never dedicated the drainage

easement to the County, either under the Virginia dedication statute or under the common

law. Accordingly, it held that the County was not obligated to repair the damage occurring

in the easement.

From the district court’s judgment dated November 28, 2023, the Fernaayses filed

this appeal.

II

The Fernaayses contend that the district court erred in concluding that the Brewers

Creek Partnership did not dedicate the drainage easement to Isle of Wight County. They

rely in particular on two passages in the plat and the Declaration of Covenants and

Restrictions, which, they claim, accomplished the dedication: (1) Brewers Creek

Partnership’s certification on the plat that it “dedicated all streets, alleys, walks, parks, and

other open spaces to public use as noted,” and (2) the provision in the Declaration of

Covenants and Restrictions that “[e]asements shown on the aforesaid plat for streets,

drainage and utilities are for the benefit of the owners of all lots in said plat and may be

freely used by the County of Isle of Wight for the benefit of the owners of said lots and

their assigns, as well as the general public.” They maintain that the Partnership thus

dedicated the drainage easement to the County either under common law by an unequivocal

“offer” of dedication and the County’s acceptance of that offer or under the dedication

statute, which automatically provides for dedication simply by the recordation of an

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approved plat. See Va. Code Ann. § 15.1-478 (1989) (current version at Va. Code Ann.

§ 15.2-2265). Thus, the Fernaayses argue, the County, as owner of the easement, had the

duty to maintain the drainage pipe and therefore is responsible for its failure.

The dispositive issue that the Fernaayses’ claims present is thus whether Brewers

Creek Partnership effected a dedication to the County of the drainage easement when it

created the subdivision.

At common law, “dedication” referred to a landowner’s grant to the public of a

limited right to use his property. Brown v. Tazewell Cnty. Water & Sewage Auth.,

306 S.E.2d 889, 891 (Va. 1983). And such a grant required (1) an “offer” consisting of

“unequivocal evidence of an intention to dedicate” an interest in property to the public and

(2) an “acceptance” by the grantee. Id. The offer could be accepted, according to Virginia

law, in at least two ways: (1) by an express act such as a formal resolution, City of Norfolk

v. Meredith, 132 S.E.2d 431, 435–36 (Va. 1963); or (2) by long public use with acts of

dominion, Brown, 306 S.E.2d at 891–92.

With an effective dedication of an interest in property, the public entity becomes the

owner of that interest with the obligation to maintain it “in the manner necessary to protect

the servient estates.” Jenkins v. County of Shenandoah, 436 S.E.2d 607, 610 (Va. 1993).

And if the public entity were to fail to maintain the dedicated interest, it could be held liable

under the Virginia Constitution for any resulting damage to the servient estate in an inverse

condemnation proceeding. See id. at 609–10. Similarly, the public entity might be subject

to a takings claim under the Fifth Amendment to the U.S. Constitution. See Ark. Game &

Fish Comm’n v. United States, 568 U.S. 23, 33–34 (2012); see also United States v. Cress,

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243 U.S. 316, 326–27 (1917). For these reasons, it is important that any stated intent of

dedication be “unequivocal.” City of Hampton v. Stieffen, 120 S.E.2d 361, 365 (Va. 1961).

Dedication in Virginia can also be accomplished pursuant to its dedication statute.

As the statute provided in 1989, when the subdivision here was created, a grantor could

dedicate a property interest to a public entity by preparing a plat for recording in the manner

specified by the statute and manifesting its intent to dedicate that property interest on the

plat. See Va. Code Ann. § 15.1-478 (1989) (current version at Va. Code Ann. § 15.2-2265).

Once the plat was approved by the public entity, its recording automatically effected a

dedication. Specifically, the statute provided:

The recordation of [an approved] plat shall operate to transfer, in fee simple, to the respective counties and municipalities in which the land lies such portion of the premises platted as is on such plat set apart for streets, alleys or other public use and to transfer to such county or municipality any easement indicated on such plat to create a public right of passage over the same . . . .

Id. The Virginia Supreme Court has clarified, however, that this statute does not provide

for the dedication of “water and sewer easements,” including those “for subsurface

installation and maintenance.” Burns v. Bd. of Supervisors, 312 S.E.2d 731, 736 (Va.

1984).

Applying these principles to the circumstances here, we conclude that Brewers

Creek Partnership did not unequivocally dedicate the drainage easement on lots 31 and 32

to Isle of Wight County, so as to create a duty to maintain the drainage pipe.

As noted, the Fernaayses rely for their claim of dedication on two passages, one on

the plat and one in the Declaration of Covenants and Restrictions. On the plat, Brewers

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Creek Partnership certified that it was “dedicat[ing] all streets, alleys, walks, parks, and

other open spaces to public use as noted.” (Emphasis added). While this language

unequivocally manifests an intent to dedicate, it does not manifest an intent to dedicate

easements or underground pipes. And the depiction of the drainage easement on the plat

does not suggest otherwise. It is labeled simply, “20′ drainage easement.” Notably, this

label is unlike the 5-foot easement abutting Route 661, which Brewers Creek Partnership

labeled, “5′ hereby dedicated for road widening” (emphasis added), thereby manifesting

an unequivocal intent to dedicate. The “20′ drainage easement” indicates by contrast that

the drainage easement simply exists. The plat thus lacks the necessary evidence of an intent

to dedicate the “20′ drainage easement” and the pipe within it.

Moreover, the Declaration of Covenants and Restrictions does not provide the

Fernaayses with the necessary support. The language on which they rely begins,

“Easements shown on the aforesaid plat for streets, drainage and utilities are for the benefit

of the owners of all lots,” suggesting that either Brewers Creek Partnership retained or the

owners were given ownership of the drainage easements. And it continues with the clause

that the easements “may be freely used by the County of Isle of Wight for the benefit of the

owners . . . as well as the general public.” (Emphasis added). While the Fernaayses argue

that this clause gave the County ownership of the easements and the pipe, the language

does not unequivocally manifest Brewers Creek Partnership’s intent to dedicate the

drainage easement on the plat to the County. To the contrary, it appears to suggest that the

easements were retained by the lot owners or Brewers Creek Partnership, and the County

was only given permission to use the easements. We agree with the district court that giving

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an entity permission to use a preexisting easement is not the same as dedicating it to the

entity. And this conclusion is fortified by the additional language in the provision that the

developer affiliated with Brewers Creek Partnership “retain[ed] the right to relocate the

said easements” with respect to any “resubdivision or rearrangement” of the subdivision’s

lots, suggesting perhaps that the developer owned the easements. But the language

certainly does not suggest that Brewers Creek Partnership dedicated the easements to Isle

of Wight County. Nor does the Declaration of Covenants and Restrictions make any

mention of the drainage pipe. And “[t]o conclude . . . that [a public entity’s] right to use

the public easements by implication transfers title to lines installed by others would distort

long-cherished principles of private ownership of property.” Burns, 312 S.E.2d at 736.

In the absence of an unequivocally manifested intent to dedicate the drainage

easement, the County could not be considered its owner so as to be responsible for failing

to maintain the pipe in it. Accordingly, we affirm the district court’s holding to that effect.

Without dedication to the County, the owners of lots 31 and 32 are left with the

scope of their original purchases of the real property, which included the underground

drainage pipe. Thus, we can only suppose that, as owners of the property, they would have

to bear the costs of its maintenance and that, with the drainage easement, they would have

legal access for doing so.

The judgment of the district court is accordingly

AFFIRMED.