Salunkhe v. Christopher Customs, LLC, Record No. 1195-22-4 (Va. Ct. App. Aug. 22, 2023)
When is an easement public?
Facts. In 1975, a deed and subdivision plat were recorded, creating the Brentwood residential development. Appellants Prasad Salunkhe and Haritha Gajjela owned an improved lot in the development (Lot 29), as did Appellees Christopher Customs, LLC (Lot 28) and Andrew and Amy Viccora (Lot 30). The subdivision plat included a notation on Lot 28 referring to a “24’ Ingress-Egress Esm’t” and a notation on Lots 28, 29, and 30 referring to a “35’ Rad. Turnaround Esm’t.”
Appellants filed a complaint seeking declaratory judgment and moved for partial summary judgment arguing that, pursuant to Code § 15.2‑2265, the two notations on the subdivision plat created public easements. Appellees filed a cross-motion for partial summary judgment arguing that a public easement was not created because the “plat did not indicate that the claimed easements were for public usage.” The circuit court sided with the appellees. Appellants nonsuited their remaining claims and appealed.
Issue. Whether an approved subdivision plat that indicates the existence of an ingress/egress easement over land establishes a public easement upon recordation.
Holding. No. A public easement can only be transferred pursuant to Code § 15.2‑2265 by “indicating with an explicit notation on the plat reflecting that it is for a public purpose.”
Notes. Code § 15.2‑2265 states that the recordation of a plat shall “transfer to the locality any easement indicated on the plat to create a public right of passage over the land.” If simply noting the existence of an ingress/egress easement on a plat created a public easement, then all ingress/egress easements would be public easements, transferred to the locality at recordation. Rather, the language of the statute requires that a plat indicate an intent that an easement is for public usage. Further, an easement cannot be transferred to the public “until accepted by competent public authority,” and localities may only accept an offer that is made “via the owner’s dedication on the plat.” Here, the plat notations gave no indication that the owner was intending to dedicate an easement for public usage. So, Fairfax County may have approved the plat, but they could not accept a public right of passage because the plat was not offering that.