Real Property – Suit over homeowners’ property damage is dismissed

Where homeowners alleged that two companies damaged their properties by failing to maintain and subsequently removing a dam, but none of their claims were plausible, their suit was dismissed.

Background

Plaintiffs allege Hanover Washington LLC and Davey Resource Group Inc. caused damage to plaintiffs’ respective properties along the South Anna River by failing to maintain and subsequently removing the Ashland Mill Dam, resulting in low water levels that negatively impacted plaintiffs’ river access, waterfront views, property value and the benefits associated with the previously impounded water levels. Defendants have filed motions to dismiss.

Common law claims

Focusing first on plaintiffs’ nuisance claim based on defendants’ removal of the dam, Virginia recognizes the general common law rule, as described in the Second Restatement of Torts, that “a possessor of land is not liable to persons outside the land for a nuisance resulting solely from a natural condition of the land.” Consistent with that principle, harms resulting solely from natural conditions are generally not actionable, absent a recognized exception.

Plaintiffs nevertheless argue this rule is “irrelevant” because they do not allege depletion of the river due to natural phenomena such as evaporation or climate change, but rather that the river and their properties were “intentionally and knowingly impacted by Hanover Washington for its own profit.” That argument is unpersuasive. Plaintiffs cite no case law supporting a cause of action for private nuisance stemming from such restored natural circumstances. Plaintiffs have failed to state a claim for private nuisance based on the dam’s removal.

Turning to plaintiffs’ negligence claim arising from the dam’s partial failure, a landowner’s inaction with respect to a natural condition does not, in and of itself, give rise to negligence liability. Such reasoning forecloses plaintiffs’ theory of negligence, because plaintiffs here ultimately seek to impose liability not for any discrete affirmative act directed at plaintiffs’ property, but for defendants’ alleged failure to act to prevent the river from resuming its natural level and flow in conjunction with the dam’s partial failure.

Based on the court’s holding with respect to plaintiffs’ attempted negligence claim, plaintiffs’ negligence per se claim—ostensibly predicated on the alleged violation of the Virginia Dam Safety Act, or VDSA—necessarily fails, as well.

VDSA

This count asserts liability based on the VDSA for damages resulting from both the partial failure of the dam and its subsequent removal. This claim fails for two independent reasons.

First, the VDSA establishes civil liability only for damages resulting from the operation or failure of a dam (e.g., the alleged partial failure underlying the instant action), but not a dam’s removal, meaning this claim is without merit to the extent it is based on Hanover’s removal of the Ashland Mill Dam. Second, with respect to the failure-to-maintain aspect, plaintiffs do not allege injuries cognizable under the VDSA and therefore do not have standing to sue under the Act.

Defendants’ motions to dismiss granted.

Arner v. Hanover Washington LLC, Case No. 3:25-cv-319, May 26, 2026. EDVA at Richmond (Young). VLW 026-3-232. 26 pp.

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