Municipal: County isn’t responsible for maintaining drainage easement

Where homeowners alleged Isle of Wight County was responsible for maintaining a pipe within a drainage easement that was causing erosion on their lot, but the easement was never dedicated to the county, the county had no duty to maintain the pipe.

Background

Brian and Susan Fernaays own a house in Isle of Wight County, Virginia. At the edge of their property and shared with the adjacent lot 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. 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. 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.

Analysis

The dispositive issue that the Fernaayses’ claims present is whether Brewers Creek Partnership effected a dedication to the County of the drainage easement when it created the subdivision. The answer is no.

Brewers Creek Partnership certified on the plat that it was “dedicat[ing] all streets, alleys, walks, parks, and other open spaces to public use as noted.” 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 five-foot easement abutting Route 661, which Brewers Creek Partnership labeled, “5’ hereby dedicated for road widening,” 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.

The Declaration of Covenants and Restrictions also 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.”

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.

Giving 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. 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.

Affirmed.

Fernaays v. Isle of Wright County, Case No. 23-2296, July 14, 2025. 4th Cir. (Niemeyer), from EDVA at Norfolk (Allen). Joseph Very Sherman for Appellants. Donald Rossen Schuyler Greene for Appellee. VLW 025-2-260. 10 pp.