Old Dominion Boat Club v. Alexandria City Council

• Decision Date: 31 October 2013
• Docket Number: Record No. 130062.
• Citation: 749 S.E.2d 321,286 Va. 273
• Parties: OLD DOMINION BOAT CLUB v. ALEXANDRIA CITY COUNCIL, et al.
• Court: Virginia Supreme Court

286 Va. 273

749 S.E.2d 321

OLD DOMINION BOAT CLUB

v.ALEXANDRIA CITY COUNCIL, et al.

Record No. 130062.

Supreme Court of Virginia.

Oct. 31, 2013.

David L. Chamowitz (Harry P. Hart, Alexandria; Mary Catherine Gibbs; Hart, Calley Gibbs & Karp; Chamowitz & Chamowitz, on briefs), for appellant.

James L. Banks. Jr., City Attorney (Christopher P. Spera, Deputy City Attorney; F. Andrew Carroll, III; Duncan Blair; Land, Caroll and Blair, Alexandria, on brief), for appellees.

PRESENT: All the Justices.

Opinion by Justice S. BERNARD GOODWYN.

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 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 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.

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.

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 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:

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...