Pressls' Reply Brief

posted Apr 29, 2016, 9:28 AM by Site administrator

On February 3rd 2016 the Pressls' filed with the 4th Circuit Court of Appeals their answer to APCO's Response to Pressls' appeal.  This is an excellent document to read as it takes each point of APCO's position and counters each with current and accurate case law.  APCO argued in their Response Brief that their federal license must be used to interpret Pressls' 1960 flowage easement.  
The argument is preposterous as Virginia state law requires the easement to be read under the conditions that existed when the easement was granted.  Furthermore the easement deed states "this deed sets forth the entire agreement between the parties hereto," which means that APCO's license is not needed or permitted under the law the interpret the easement.   In 1960 APCO had no SMP requirement and the original 1960 license did not require APCO to issue permits for dock construction, shoreline stabilization or vegetation removal/replacement.  The flowage easement does not require the landowner to apply for a permit/license from APCO to use the easement for recreational purposes.  In fact the flowage easement explicitly states that the landowner retains fee simple ownership and can use the easement for any purpose, so long as that use does not materially adversely impact APCO's ability to flood and/or operate and maintain the dam and power station at Smith Mountain.  

I urge you to read this brief as it provides a clear and succinct explanation of the merits and facts in this appeal.  Here is the link to: Appeal Pressl v. APCO - Reply Brief.pdf (525k)