BROWN v. HALEY Record No. 840346, Supreme Court of Virginia (1987)

"By deed dated September 6, 1961, Rufus R. Brown and Sallie W. Brown conveyed to Appalachian Power Company (Apco) the right to overflow and affect with water that portion of a tract of 321.75 acres to the 800-foot elevation and to enter below the 800-foot contour and clear the land for the impoundment of water.  The deed reserved to the Browns the right to use the land below the 800-foot contour ..."

    The Virginia Supreme Court concluded: “Grantors [shoreline property owners] shall have the right to possess and use said premises in any manner not inconsistent with the estate, rights and privileges [property rights] herein granted to Appalachian, including (a) the right to cross said land to reach the impounded waters for recreational purposes ... Absent express restrictions imposed by the terms of the grant [flowage easement], a grantor of property conveys everything that is necessary for the beneficial use and enjoyment of the property.  Where the parties to a land transaction contemplate that the purchasers will have access to the water for recreational purposes and where such access adds materially to the value of the property conveyed, use of the property retained for access to the water is reasonably necessary for the beneficial use and enjoyment of the property conveyed. ... Moreover, the deed provided that the covenants and agreements contained therein "shall be covenants attaching to and running with said premises."

Issues critical to the outcome:  Land was sold to the Haleys by the Browns for the purpose of a campground and beach with access to the lake.  Justices stated that the Haleys had an implied easement to the lake for recreational purposes, even though the deed from the Browns only deeded land above and to the 800' contour.  The underlying APCO flowage easement, even though not disclosed in the Haleys deed from the Browns, ran with the Haley's land title.

    NOTE: This 1987 Va. Supreme Court's ruling established that APCO's flowage easement allowed shoreline property owners the use of the easement land between the 800' and 795' contour in any manner, so long as that use did not restrict or limit APCO's ability to flood, operate and maintain the hydro-electric dam -- and these rights are attached to and run with the title of the land.  This ruling also defined the concept of an implied easement.

BROWN v. HALEY Case Link


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APPALACHIAN V JW HOLDINGS, INC. (2000)

    Prior to SMP regulations, APCo got a Federal injunction halting JW Holdings from constructing boat slips. Before trial, the Parties settled and agreed to dismiss the case without prejudice. As part of the settlement JW Holdings was allowed to build all of their planned boat slips, and JW Holdings signed an APCo Permit. That Permit encumbered/limited JW Holdings property rights, which would later haunt them.

Issues critical to this outcome: The Flowage Right and Easement Deed that the fee simple property owner granted APCo required a revocable license for uses other than the owner’s recreational purposes. JW Holdings was building boat slips for commercial purposes and may not have had the property rights to build them. APCo did not want to litigate a property rights issue, so it got JW Holdings to sign an APCo permit. Since both parties were willing to settle -- it seemed like a Win-Win. Unfortunately for JW Holdings, by signing the Permit they had agreed that APCo had the authority to regulate these slips and any future boat slips.


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APPALACHIAN V. RICHARD LONGENECKER (2000)

  In this pre-SMP case, APCo successfully argued that the Longeneckers (owners and operators of Mitchell’s Marina on Craddock Creek) were in violation of FERC’s 1998 Order implementing Article 41 (Use and Occupancy of Project Lands and Waters) of APCo’s Federal license. The Longeneckers were using land below the 800’ contour to rent seasonal campsites. Approximately eight camping trailers were parked below the 800’ contour and the campsites included fixed wooden decks.

Issues critical to this outcome: The Flowage Right and Easement Deed that the fee simple property owner granted APCo required a revocable license for uses other than the owner’s recreational purposes. Building fixed decks and placing campers below the 800’ contour for commercial purposes may have violated the Flowage Right and Easement Deed. APCo also argued it had the authority under its Federal license (per Land Use Article 41) to regulate uses and occupancies in the project boundary, something they could not have done prior to 1998.

APCO V LONGENECKER Case Link


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SML YACHT CLUB, INC. v. RAMAKER, Record No. 000861, Supreme Court of Virginia (2001)

    The Virginia Supreme Court concluded: ... These flowage easements granted APCO the right to overflow and/or affect so much of said premises ...  as the result of the construction, existence, operation and/or maintenance of the aforesaid dam and/or power station ... Thus, the existence of such a flowage easement did not deprive its grantor [shoreline property owner] from exercising the rights of fee simple ownership that were unaffected by that flowage easement.”

    Although APCO was not a party in the Yacht Club case, it filed an Amicus (friend of the court) brief.   Much of APCO’s brief formed parts of the Court’s ruling.  APCO wrote: “Under the Flowage Easement at issue here, the Yacht Club plainly retained "the right to possess and use the premises in any manner" not inconsistent with APCO's rights under the easement. ... Moreover, to deprive the Yacht Club of its fee interest in its land would be tantamount to an unlawful and unconstitutional taking ... It has long been established that the federal Constitution forbids the taking of property without compensation "no less through its courts than through its legislature."

Issues critical to the outcome: The Court ruled that the flowage easement did not deprive shoreline property owners from exercising the rights of fee simple ownership that were unaffected by that flowage easement; that APCO's flowage easement granted APCO the right to flood the easement for dam construction, operation and maintenance; and that shoreline owners retained the right to possess and use their land in any manner so long as that use did not interfere with APCO's right right to flood and operate and maintain the project.

    NOTE: Brown v. Haley (1987) established that when property is legally sold as waterfront, an easement exists to the water and the owner has reasonable use of that easement necessary for the beneficial use and enjoyment of the property conveyed.  In SMLYacht Club v Ramaker (2001) the Va. Supreme Court ruled that the flowage easement did not transfer fee simple ownership of the land to APCO; shoreline owners can exercise all rights of fee simple ownership that are unaffected by that flowage easement; and APCO has no authority to grant permission to construct a dock upon the private property of another.

    CURB finds great irony in APCO's vigorous defense of property and the US Constitutional prohibition from taking private property without compensation.  In its Amicus Curiae Brief to the Va. Supreme Court APCO argued that without private ownership, their flowage easement deeds would be stripped from them.  Ironic, that APCO was such a strong advocate for its property rights in 2001 and today APCO is taking shoreline owners' property rights without compensation using its SMP Permit process.

SML YACHT CLUB, INC. v. RAMAKER Case Link

APCO's Amicus Brief Link


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HEIDEL V. BEDFORD COUNTY, VIRGINIA AND APPALACHIAN (2003)

    APCo had this case removed to Federal Court arguing their authority to regulate was a Federal matter. The Heidels had applied to Bedford County for a building permit and to APCo for a permit to build a "Non-Commercial Boat Dock/Pier/Landing" in September, 2001. (Note: The Heidels had no legal obligation to apply to APCo, and APCo had no regulations in-place to govern construction of boat docks or related structures prior to 2003.) The plans the Heidels submitted included diagrams for a floating dock, deck, and dock-house. When APCo approved the permit application, APCo wrote the following: "For Phase 1 floating dock only. Further construction must be approved by [American Electric Power] on a separate permit." Apparently the Heidels disregarded APCo’s note and built the entire structure in accordance with their Bedford County permit. Consequently since Bedford County issued and approved the construction, the Heidels sued Bedford County for damages after APCo had them remove the structures. (We are assuming the Heidels received a certificate of occupancy from Bedford County.)

Issues critical to this outcome: The Heidels critical mistake was requesting an APCo permit. The act of applying for and accepting APCo’s Permit made this an enforceable agreement that APCo could argue as a Federal issue. The Heidels ignored APCo’s limited approval, thus violating the terms of their APCo Permit.

HEIDEL V. APCO Case Link


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JW HOLDINGS V. APPALACHIAN (2004):

    JW Holdings filed suit against APCo in the Circuit Court for the County of Bedford, stating that it owned in fee simple, two parcels of land on Smith Mountain Lake, one of which extended below the 800’ contour into and under project waters. JW Holdings argued that APCo had no power to interfere with the construction of boat docks on these parcels by requiring a permit.
  APCo successfully argued that JW Holdings suit be “removed” from the Circuit Court for the County of Bedford and be heard in the U.S. District Court for The Western District of Virginia because: (1) APCo had issued permits to JW Holdings for the construction of these boat docks, and (2) JW Holdings’ 2000 settlement with APCo included signing APCo Permits. APCo argued they issued dock permits pursuant to their rights and responsibilities under their Federal licensee for the Smith Mountain Hydro-Electric Project, and that JW Holdings suit was a federal question under the jurisdiction of the Federal Courts.

Issues critical to this outcome: JW Holdings previously agreed in its 2000 settlement with APCo to sign APCo’s permit thus establishing the precedence APCo had authority to issue these permits and regulate docks. JW Holdings applied for permits for these additional docks, but before they received approval/denial, they decided to litigate. Once again, by applying to APCo, JW Holdings’ actions established that they acknowledged APCo’s authority to regulate, giving APCo the ability to remove this case to a Federal court.

JW HOLDINGS V. APCO Case Link


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VA TIMBERLINE, L.L.C. V APPALACHIAN; FRANKLIN REAL ESTATE COMPANY (2006)

    Timberline applied to APCo for a permit on 8 Mar 05. APCo notified Timberline that it objected to Timberline’s application to construct 24 community boat docks and limited the number of slips to four. Timberline filed suit in the Circuit Court for Pittsylvania County in 2006 asking the Court to determine if Timberline’s property deed and Flowage Right and Easement Deed gave them the right to construct community boat docks. APCo argued this was a Federal issue and the case was removed to Federal Court. After losing in Federal District Court in January 2008, Timberline appealed to the 4th US Court of Appeals. On August 31st, 2009, the justices upheld the lower court’s ruling.

Issues critical to this outcome: Timberline had purchased land bordering Leesville Lake and its Flowage Right and Easement Deed contained specific language that the owner of this land had the right to construct and build boat docks. The deed also quit claimed away (eliminated) APCo’s right to clear anything below the 800’contour. However, the 1987 Flowage Right and Easement Deed that APCo granted included language that further conditioned Timberline’s right to build docks by APCo’s Federal license, stating: “shall be subject to the exceptions, reservations, covenants and conditions hereinafter set forth and also subject, as Appalachian’s consent below is subject, to all of the terms and conditions of that certain license issued by the Federal Power Commission to Appalachian under date of April 25, 1960 and any amendments thereof or supplements thereto, authorizing the construction, operation and maintenance of Appalachian's hydroelectric development known as the Smith Mountain Combination Project.” FERC had ordered the SMP in 2005, making it part of APCo’s Federal license. The entire 456 page record of this legal proceeding can be read here. This file gives insight into the legal arguments that Timberline and APCo debated during this lengthy proceeding.

TIMBERLINE V APCO Case Link


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ANDERSON v. DELORE, Record No. 082416, Supreme Court of Virginia (2009)

    The Bedford Circuit Court Judge who first heard Anderson v. Delore is explicit in his oral remarks. “... if Appalachian only has a flowage easement, all they have is an easement, which is a right to flow the water up to 800-foot.  Now, if anybody comes along and interferes with your right to reasonably use that property for the purpose for which the easement was intended, this Court can enjoin them and stop them. I have no authority to extend any property lines. I have no authority to do anything other than make that one determination. Has there been interference with the complainants' right to reasonably use the easement for the purposes intended?” Judge Updike’s ruling was upheld by the Virginia Supreme Court.

    The Virginia Supreme Court justices explained how they determined the scope of APCO’s flowage easement deed.  “ ... [W]e apply the customary rules governing the construction of written documents.  Thus, we ascertain the rights of the parties from the words set forth in their deeds. A deed may expressly create an easement but fail to define specifically its dimensions. When this situation occurs, and the deed language does not state the object or purpose of the easement, the determination of the easement’s scope “is made by reference to the intention of the parties to the grant,” ascertained from the circumstances pertaining to the parties and the land at the time of the grant.”

Issues critical to the outcome: Essentially the ruling solidified that no one [including APCO] has the right to limit a shoreline property owner the right of access to Smith Mountain Lake as expressed in the flowage easement deed as ascertained from the circumstances pertaining to the parties and the land at the time of the grant.

    NOTE: Brown v. Haley (1987) established that when property is legally sold as waterfront, an easement exists to the water and the owner has reasonable use of that easement necessary for the beneficial use and enjoyment of the property conveyed.  In SMLYacht Club v. Ramaker (2001) the Va. Supreme Court ruled that the flowage easement did not transfer fee simple ownership of the land to APCO; shoreline owners can exercise all rights of fee simple ownership that are unaffected by that flowage easement; and APCO has no authority to grant permission to construct a dock upon the private property of another.

    CURB finds great irony in APCO's vigorous defense of property and the US Constitutional prohibition from taking private property without compensation.  In its Amicus Curiae Brief to the Va. Supreme Court APCO argued that without private ownership, their flowage easement deeds would be stripped from them.  Ironic, that APCO was such a strong advocate for its property rights in 2001 and today APCO is taking shoreline owners' property rights without compensation using its SMP Permit process.

    The Va. Supreme Court ruling in Anderson v. Delore (2009) established that the meaning and scope of APCO's flowage easement deed is determined by the plain and simple language of the deed, under the circumstances pertaining to the parties and the land at the time of the grant.  APCO has NO authority under its Federal license to change property rights or to unilaterally change the terms of their flowage easement to include its newest license requirements and SMP.  To do so, in APCO's words "would be tantamount to an unlawful and unconstitutional taking."

ANDERSON v. DELORE Case Link


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APPALACHIAN v Arthur (2014)

    The Arthurs had applied for an APCo Permit in 2006 to expand docks for rental boats and for storage and other purposes. APCo asked for more details, the Arthurs did not provide the additional details, and instead started construction. APCo argued that the Arthurs expanded certain pre-existing boat docks, constructed new structures on their property, and added fill to portions of their property that resulted in elevation changes, and that each of these actions violated APCo's rights. APCo argued that the Arthurs' improvements and changes to their property, all of which were undertaken without prior approval or the required permits from APCo, violated the provisions of its FERC license. The Arthurs made no argument that APCo lacked the property rights to regulate their property. The judge found in favor of APCo and ordered the Arthurs to remove the unpermitted structures and restore the project boundary.

Issues critical to this outcome: The defendants applied for an APCo permit, chose to represent themselves in a complex legal matter, offered no defense, and did not challenge APCo’s property rights. Additionally the defendants constructed items that may have exceeded their right to use the land for recreational purposes. Read the Arthur's Affidavit for their explanation of these events.

APCO v Arthur Case Link

Arthur's Affidavit Link