For a locality to be liable for failure to maintain an easement, does the locality have to hold the easement? Earlier this year, the Fourth Circuit Court of Appeals wrapped up an inverse condemnation case, Fernaays v. Isle of Wight County, No. 23-2296 (4th Cir. 2025), answering that question. The general thrust of the opinion is that is that in order for a local government to be liable for failing to maintain an easement, it has hold the easement.

Brian and Susan Fernaays owned a house on lot 31 in Brewers Creek Subdivision, Isle of Wight County, Virginia. A 20-foot drainage easement, shared with lot 32, contained an underground stormwater drainage pipe that they alleged deteriorated over time and purportedly caused significant erosion. The Fernaayses sued the county claiming the county owned the easement and thus was responsible. They argued that the county’s failure to maintain resulted in an unconstitutional taking of their property.

  • Dedication of Easement: The central legal issue was whether the Brewers Creek Partnership dedicated a drainage easement to the county, either under Virginia’s dedication statute or common law. Dedication requires unequivocal evidence of intent to dedicate and acceptance by the public entity.
  • Interpretation of Subdivision Documents: The plat only dedicated “streets, alleys, walks, parks, and other open spaces,” not easements or underground pipes. There was no unequivocal intent to dedicate.
  • No Duty to Maintain: The court held that without dedication, the county had no duty to maintain the easement.
  • No Takings Claims: The court found no taking occurred because the county did not own or control the easement or pipe.
  • Application of Virginia Law: The court applied Virginia common law and statutory law regarding dedication, as well as relevant case law (including Burns v. Bd. of Supervisors), which clarified that certain easements, such as those for subsurface water and sewer, are not automatically dedicated by plat recordation.
  • Ownership and Maintenance Responsibility: The court concluded that, in the absence of dedication, the responsibility for maintenance and repair remained with the property owners, not the county.
  • Procedural Outcome: The district court’s grant of summary judgment in favor of the county was affirmed, holding that no dedication occurred and the county bore no liability.
Ross Greene, CRE, SR/WA is a firm shareholder and chair of the firm’s Eminent Domain / Right of Way Practice Group. He focuses his practice in the areas of eminent domain, real estate, wills, trusts, estates, and business matters.
DISCLAIMER: Case results depend upon a variety of factors unique to each case; and case results do not guarantee or predict a similar result in any future case.