Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the January 21, 2014 mailing of "Constructive Notice":

Implied Dedication Does Not
Extinguish Easement

An express easement created in 1789 survives an implied street dedication to the municipality. Old Dominion Boat Club v Alexandria City Council, et al., No. 130062, (Va. Supreme Ct., October 31,2013).

The street at issue 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 [trial] court also found that the City had exercised dominion and control by paving it, repairing potholes, making numerous repairs to the brick sidewalk, posting public street signs , and that these activities were sufficient to prove an acceptance of the implied dedication of the fee simple interest in the property. [emphasis supplied] Nevertheless, the Supreme Court held that the easement had not been impliedly dedicated because the public use was not adverse to and exclusive of the use and enjoyment of the property by the easement holder.


This case was precipitated by the Citys grant of a permit to a restaurant for an outdoor deck that partially obstructed the street. Even though the street was otherwise passable, the original grant was for free use and passage over a Street or Alley of thirty feet wide. In 1970, a private owner had closed off the street entirely, but was enjoined from doing so by the same plaintiff as in the instant action. The earlier proceeding had not addressed the vitality of the express easement.