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Ferry operator breached licensing agreement

Where defendant ferry service breached a license agreement by relocating a retaining wall without the required permission from plaintiff landowner, the court awards damages and enjoins defendant’s further use of the property.

However, plaintiffs’ unjust enrichment claim fails because they have not established “with reasonable certainty” the value of the benefit defendant obtained by its trespass. And, although defendant breached the parties’ contract, the damages for this claim are identical to those awarded on the trespass and property damage counts. Plaintiffs cannot be awarded “duplicative judgments for the same damages.”

A license to use

Defendant, White’s Ferry, operates a ferry service across the Potomac River between property defendant owned in Maryland and property owned by Rockland Farms in Virginia. Defendant and plaintiffs’ predecessor entered into an agreement in 1952, under which defendant received a license to operate on a portion of plaintiffs’ property.

The agreement provided, in part, that “the Defendant be provided a license to ‘use so much of that portion of [the Property] as [was then] used in connection with the operation of the said ferry.’” The license further provided that defendant obtain plaintiffs’ permission before undertaking any construction on the property.

Plaintiffs allege that in 2004, defendant remove an existing retaining wall and replaced it with a wall farther from the river. Plaintiffs allege they did not consent to this construction and demanded defendant restore the property to its previous condition. Plaintiffs terminated the license after “Defendant refused to restore the Property[.]”

The parties unsuccessfully attempted to resolve the dispute. In 2009, plaintiffs sued defendant for trespass, damage to property, unjust enrichment and breach of contract. After a series of delays, including a discontinuance and reinstatement, a trial was conducted and the court now issues its rulings.


“[I]t is not controverted that the Current Virginia Landing and the Approach are located within the bounds of the Property. The elements of trespass are therefore established if the Plaintiffs prove by a preponderance of the evidence that the Defendant has made an unauthorized entry onto the Property, which results in interference with the Plaintiffs’ possessory interest therein.

“The Defendant concedes in the stipulations that the operation of the Virginia landing takes place on the Property. … The Court finds that this constitutes entry onto the Property and that this entry results in interference with the Plaintiffs’ possessory interest in the Property.

“The Court also finds the entry is unauthorized because the Defendant has continued its presence by operating the ferry on the Property after the Plaintiffs’ 2004 notice of termination of the License Agreement. …

“The Court further finds that the Defendant’s use of the Property has exceeded the bounds of the License Agreement in two ways: a) the Defendant caused the Construction to the Property in contravention of the License Agreement; and b) the Defendant has continued to use the Property after Plaintiffs terminated the License Agreement in 2004. Hence, the elements of trespass have been proven by a preponderance of the evidence. …

“The leading controversy on the trespass claim, as the parties have framed the litigation, is whether the Defendant has proven any defense. … The defenses offered suggest that the Plaintiffs’ interest in the Property is subject to a right of public access on portions thereof.”

Defendant points to the “1871 Road Case” as establishing public use of the property via a condemnation.

The order issued in the 1871 Road Case did not identify “with reasonable certainty” the location of the condemned property. Nor did a receipt for the compensation paid to the then-landowner of the property.

Defendant has provided maps as circumstantial evidence of the condemned land’s location. But the maps were “created years after the 1871 Road Case[.]” Thus, “[f]or any map that was based on anything other than the records of the 1871 Road Case, the evidence is insufficient to determine that its pertinent depictions of the Virginia landing area and approach reliably reflect what the 1871 Road Case ordered.”

Defendant also asserts that the “Commonwealth, via the 1932 Byrd Act, took ‘the landing and the road that serves it into the State secondary highway system.’ …

“The main effect of the Byrd Act is to shift responsibility for maintenance of the existing public rights of way from the counties to the Commonwealth. No provision of the Byrd Act allows for a conversion of private property to public property or the creation of any new public roads, causeways, etc.

“In other words, the Byrd Act would only have applied to that which was already a public way. The Byrd Act does not create any rights to public access.”

As to damages, “the Court finds that the unauthorized Construction was undertaken while the Defendant was trespassing. Therefore, a measurable amount of loss, i.e. the cost to restore the Property, has been established and an award of nominal damages is not indicated.

“The parties have stipulated that the cost to restore the Property to its condition prior to the Defendant’s Construction is $102,175.00.” That amount is the damage award for trespass. Further, defendant is enjoined from further use of the property.

Other counts

As to the property damage account, “the Construction was outside of the scope of the License Agreement and the Plaintiffs did not consent to the Construction. Thus, the Court finds in favor of the Plaintiffs with respect to this count.

Concerning the unjust enrichment account, plaintiffs showed that defendant continued to use the property even after the license agreement was terminated. “Defendant should reasonably have expected to pay the Plaintiffs for any benefit received, although no compensation has been provided. Still, the Plaintiffs have the burden to establish the value of the benefit the Defendant received to prove the amount of damages. …

“The Court recognizes that the Property and the Defendant’s business may not have numerous analogs to facilitate a customary approach to rental valuation. This circumstance, does not, however, serve to authorize speculation by the factfinder. Accordingly, the burden of proof of reasonable certainty remains.

“When that standard is applied to the evidence, the Court finds that the Plaintiffs have not sufficiently established at what rental rate a meeting of the minds of the Plaintiffs and the Defendant would have occurred. The Plaintiffs therefore have not proven with reasonable certainty the amount of unjust enrichment.”

The court further finds that defendant is liable for breach of contract.

“A plaintiff is not entitled to receive duplicative judgments for the same damages. … In the instant matter, the Court finds that damages are identical for trespass, damage to property, and breach of contract. Therefore, the monetary damages awarded for the three claims are awarded concurrently for a total award of $102,175.00.”

Rockland Farm, et al. v. White’s Ferry, Case No. CL00056672-01, Nov. 23, 2020, 20th Cir. Ct. (Sincavage). Jeffrey A. Huber for plaintiffs, Robert E. Sevila for defendant. VLW 020-8-144, 31 pp.

VLW 020-8-144