Real Property: Circuit court relocates two easements over objection

Where the landowner unsuccessfully attempted to negotiate the relocation of two easements, and relocating the easements would not result in loss or injury to any real or potential economic benefits and would not cause excessive or unwarranted hardship or adversity, the circuit court did not err when it relocated the easements.

Background

Allen Creek Associates LLC, or ACA, owns a parcel of land just off Route 151 in Nelson County, Virginia. ACA planned to develop the property and build a residential community. As part of its plans, ACA sought to relocate two easements that run across the property: the Allen Creek right of way, or ROW, and the Eastern ROW. These easements serve the properties of Darlene and William Smith and Maxine Small. The circuit court granted ACA’s petition to relocate both easements under Code § 55.1-304.

Controversy

Appellants argue that there was no justiciable controversy ripe for adjudication and the circuit court therefore erred by “rendering a judgment that significantly altered appellants’ property rights.” They contend that the petition was based only on future or speculative facts rather than present facts. The court disagrees.

ACA spent nearly a year trying to negotiate an agreement with appellants. When that did not pan out, ACA petitioned the circuit court to relocate the easement. Nothing in the statute requires any governmental approvals or other prerequisite prior to petitioning the circuit court for relocation.

Beyond the lack of statutory requirements, the evidence established that the controversy involved present facts rather than future or speculative facts. ACA presented evidence that it attempted to develop a site plan leaving the easements largely in their original positions, but that it needed to submit a shared entrance agreement. ACA tried, unsuccessfully, to negotiate a shared entrance agreement with appellants for approximately a year.

Based on ACA’s evidence, the only thing stopping ACA from proceeding was appellants’ refusal to enter a shared entry agreement. ACA’s only alternative was to proceed with the petition to relocate the easement. Thus, ACA has established that there were actual adverse claims based on present, rather than future or speculative facts.

Code § 55.1-304

Appellants argue that the circuit court “misinterpreted and misapplied” Code § 55.1-304 and that it erred when it found that relocating the easement “would not result in loss or injury to any real or potential economic benefits and would not cause excessive or unwarranted hardship or adversity. Those terms are not defined in the statute or any relevant provisions.

Here, the record supports the circuit court’s finding that the relocation of the easements would not cause economic damage to appellants. Appellants do not point to any evidence in the record showing that they would be unable to continue their farming operations or conduct new agricultural uses (including agrotourism) if the easements are relocated. Nor do they present any evidence of possible cost to them. Appellants’ argument that the relocation of the easement would hamper their ability to develop the property in the future is speculative. Thus, there was no evidence that the relocation of the easements would cause any economic damage to appellants.

And the evidence, viewed in the light most favorable to ACA, shows that the relocation of the easement would cause no undue harm, and even some benefit, to appellants. Appellants’ argument related to their use of the land for agricultural purposes and their ability to get agricultural equipment across the right of way onto their properties. ACA presented evidence that the site plan was developed with appellants’ agricultural equipment in mind.

Taking

Appellants argue that the circuit court’s order relocating the easement constituted a governmental act. Assuming without deciding that the circuit court’s order constituted a governmental act and that the appellants had a cognizable property interest in the easement, no taking occurred because the relocation did not adversely affect appellants’ rights connected to the easement.

Affirmed.

Smith v. Allen Creek Associates LLC, Record No. 0850-24-3, Aug. 19, 2025. CAV (Atlee Jr.). From the Circuit Court of Nelson County (Doucette). Maynard L. Sipe (Boyd & Sipe PLC, on brief), for appellants. Stephen K. Strosnider (Franklin, Denney, Ward & Strosnider PLC, on brief), for appellee. VLW 025-7-221. 18 pp.