Present: All the Justices 

UNITED STATES OF AMERICA 

 OPINION BY 

v. Record No. 042404 JUSTICE LAWRENCE L. KOONTZ, JR. 

 June 9, 2005 

PETER F. BLACKMAN 

UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED STATES 

DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA 

 Pursuant to Article VI, Section 1 of the Constitution of 

Virginia and our Rule 5:42, the United States District Court for 

the Western District of Virginia (“district court”), by its 

order entered October 21, 2004, certified to this Court the 

following questions of law: 

A. In Virginia in 1973, would a conveyance of a 

negative easement in gross by a private property owner 

to a private party for the purpose of land 

conservation and historic preservation be valid? 

B. In Virginia in 1973, would it be valid for a group 

of private property owners to grant to a private 

grantee restrictions for the purpose of land 

conservation and historic preservation on their 

individually-owned parcels of property, when (1) the 

property was not being transferred by a common 

grantor, (2) each grant was made in consideration of 

similar grants to the grantee, and (3) the grantee did 

not own any property benefited by the restrictions? 

By order entered January 3, 2005, we accepted the certified 

questions. 

BACKGROUND 

 The relevant facts are recited in the order of 

certification as follows: 
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The Green Springs Historic District (the 

“District”) is an area of roughly 14,000 acres in 

Louisa County that was settled in the 1700s. Much of 

the land in this area has historically been used for 

agricultural purposes, and this agricultural setting 

remains today. Because the land has been continuously 

farmed for almost three centuries, many of the homes 

and farms have been preserved in their original 

context with little alteration. 

In the early 1970s, the Commonwealth of Virginia 

bought two hundred acres of land in the Green Springs 

area with the intention of building a prison. There 

was much local opposition, and some landowners 

expressed the belief that the prison would damage the 

character of their historic community. Reacting to 

this opposition, the then-governor of Virginia 

announced in 1972 that the state would not build the 

prison facility in the area if that area could be 

preserved. In response to the governor’s challenge, 

local citizens organized a non-profit group dubbed 

Historic Green Springs, Inc. (“HGSI”), which obtained 

donations of easements for land conservation and 

historic preservation from landowners and initiated an 

effort to have the area designated as a National 

Historic Landmark District. The Green Springs 

Historic District was listed on the National Register 

of Historic Places in March of 1973, and was 

ultimately designated as a National Historic Landmark 

in 1974. See Historic Green Springs, Inc. v. 

Bergland, 497 F.Supp 839, 842-43 (E.D. Va. 1980) 

(discussing the history of the District). 

By a “Deed of Easement” dated March 19, 1973 (the 

“Easement”), D.L. Atkins and Frances Atkins granted to 

HGSI an assignable easement over several parcels of 

their property, including Eastern View Farm. The 

Easement states in part that “in consideration of the 

grant to the Grantee of similar easements in gross by 

other owners of land in the said Green Springs 

Historic District for similar purposes, the Grantors 

[D.L. Atkins and Frances Atkins] do hereby grant and 

convey to the Grantee [HGSI] an easement in gross 

restricting in perpetuity, in the manner hereinafter 

set forth, the use of the following described tracts 

of land, together with the improvements erected 

thereon.” In 1978, HGSI decided to convey its entire 
3

portfolio of easements to the United States. In the 

resulting deed of easement to the United States, all 

of the original grantors of similar easements within 

the District acknowledged their agreement to the 

conveyance by affixing their signatures to the deed. 

The National Park Service (“NPS”) now administers 

these easements, including the Easement at issue, on 

behalf of the United States as part of the Green 

Springs National Historic Landmark District. The 

Easement at issue provides that the manor house on 

Eastern View Farm: 

will be maintained and preserved in its 

present state as nearly as practicable, 

though structural changes, alterations, 

additions, or improvements as would not in 

the opinion of the Grantee fundamentally 

alter its historic character or its setting 

may be made thereto by the owner, provided 

that the prior written approval of the 

Grantee to such change, alteration, 

addition, or improvements shall have been 

obtained. This provision applies as well to 

those 18th and 19th Century outbuildings 

located on the described property. 

Peter F. Blackman (“Blackman”) purchased Eastern 

View Farm on July 1, 2002. Blackman wishes to 

renovate and rehabilitate the manor house. 

Specifically, Blackman, inter alia, seeks to remove 

the existing front porch on the manor house, replace 

the siding, and create an addition. In support of 

these intended alternations, Blackman submitted 

several sets of renovation plans to the NPS for 

review, but the NPS repeatedly denied certain aspects 

of his plans. Rather than working with the NPS for 

final approval of his plan, Blackman’s attorney stated 

in a latter dated January 13, 2004 that Blackman would 

“commence the Rehabilitation at a time of his 

choosing, without further notice to [NPS], in 

accordance with the attached elevations.” 

Subsequently, Blackman removed the porch from his 

house. The United States filed the complaint in this 

case June 14, 2004, and on June 16, 2004 Judge James 

C. Turk issued a temporary restraining order 

restraining Blackman from “commencing and/or 

continuing renovation work to the manor house located 
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on the Eastern View Parcel, in the Green Springs 

National Historic Landmark District, unless he has 

first obtained written approval from the National Park 

Service.” 

In defense of his actions, Blackman argues that, 

inter alia, the original deed of easement granted to 

HGSI was invalid because at the time it was 

purportedly created, Virginia law did not recognize 

any kind of negative easement in gross, including such 

easements for the purpose of land conservation and 

historic preservation. 

 In its order, the district court correctly states that we 

have not directly addressed the issue of the validity of 

negative easements in gross in our prior decisions. While also 

correctly noting that only certain types of easements were 

recognized at common law, the district court references the 

statement in Tardy v. Creasy, 81 Va. (6 Hans.) 553, 557 (1886), 

that “there are many other easements which have been recognized, 

and some of them have been of a novel kind,” for the proposition 

that prior to 1973 “Tardy leaves open the possibility that other 

easements, including negative easements related to land 

conservation and historic preservation, would be valid if 

sufficiently related to the land.” 

DISCUSSION 

 The first question certified by the district court presents 

the issue of law whether, in 1973, the law of Virginia permitted 

an individual landowner to grant a negative easement in gross to 

a third party for the purpose of land conservation and historic 
5

preservation. As indicated by the district court, if the law of 

this Commonwealth did not recognize the validity of such an 

easement at that time, then the purported property restrictions 

granted to HGSI are invalid and would be unenforceable by HGSI’s 

transferee, the United States. 

 Although previously we have not addressed the issue of the 

validity of a negative easement in gross under the law existing 

in 1973, the issue is of considerable significance beyond the 

specific historic district involved in this case. By the brief 

of amici curiae filed in this case, we are advised that at least 

seven other charitable entities hold conservation or historic 

preservation easements, many of them easements in gross, 

conveyed prior to 1973.∗ Underlying the issue is a degree of 

apparent conflict between the common law preference for 

unrestricted rights of ownership of real property and the public 

policy of this Commonwealth as expressed in Article XI of the 

Constitution of Virginia, ratified by the people of this 

Commonwealth in 1970, that “it shall be the policy of this 

 ∗

 The brief was filed on behalf of Historic Green Springs, 

Inc., Association for the Preservation of Virginia Antiquities, 

The Chesapeake Bay Foundation, Inc., Historic Richmond 

Foundation, National Trust for Historic Preservation in the 

United States, The Nature Conservancy, Piedmont Environmental 

Council, and the Waterford Foundation. These organizations 

assert that thousands of acres and numerous historically 

significant sites and buildings located in this Commonwealth are 

currently protected by easements of the type at issue in this 

case. 
6

Commonwealth to conserve . . . its historical sites and 

buildings.” Accordingly, we take this opportunity to discuss in 

some detail the relevant law. 

 “An easement is ‘a privilege without profit, which the 

owner of one tenement has a right to enjoy in respect of that 

tenement in or over the tenement of another person; by reason 

whereof the latter is obliged to suffer, or refrain from doing 

something on his own tenement for the advantage of the 

former.’ ” Amstutz v. Everett Jones Lumber Corp., 268 Va. 551, 

559, 604 S.E.2d 437, 441 (2004) (quoting Stevenson v. Wallace, 

68 Va. (27 Gratt.) 77, 87 (1876); accord Brown v. Haley, 233 Va. 

210, 216, 355 S.E.2d 563, 567-68 (1987). Easements are 

described as being “affirmative” easements when they convey 

privileges on the part of one person or owner of land (the 

“dominant tract”) to use the land of another (the “servient 

tract”) in a particular manner or for a particular purpose. 

Easements are described as being “negative” when they convey 

rights to demand that the owner of the servient tract refrain 

from certain otherwise permissible uses of his own land. Bunn 

v. Offutt, 216 Va. 681, 684, 222 S.E.2d 522, 525 (1976). 

 Negative easements, also known as servitudes, do not bestow 

upon the owner of the dominant tract the right to travel 

physically upon the servient tract, which is the feature common 

to all affirmative easements, but only the legal right to object 
7

to a use of the servient tract by its owner inconsistent with 

the terms of the easement. In this sense, negative easements 

have been described as consisting solely of “a veto power.” 

Prospect Dev. Co. v. Bershader, 258 Va. 75, 89, 515 S.E.2d 291, 

299 (1999). 

 At common law, an owner of land was not permitted at his 

pleasure to create easements of every novel character and annex 

them to the land so that the land would be burdened with the 

easement when the land was conveyed to subsequent grantees. 

Rather, the landowner was limited to the creation of easements 

permitted by the common law or by statute. See Tardy, 81 Va. (6 

Hans.) at 557. The traditional negative easements recognized at 

common law were those created to protect the flow of air, light,

and artificial streams of water, and to ensure the subjacent and 

lateral support of buildings or land. See Andrew Dana & Michael 

Ramsey, Conservation Easements and the Common Law, 8 Stan. 

Envtl. L.J. 2, 13 (1989); see also Tardy, 81 Va. (6 Hans.) at 

557, 563. 

 Easements, whether affirmative or negative, are classified 

as either “appurtenant” or “in gross.” An easement appurtenant, 

also known as a pure easement, has both a dominant and a 

servient tract and is capable of being transferred or inherited. 

It frequently is said that an easement appurtenant “runs with 

the land,” which is to say that the benefit conveyed by or the 
8

duty owed under the easement passes with the ownership of the 

land to which it is appurtenant. See Greenan v. Solomon, 252 

Va. 50, 54, 472 S.E.2d 54, 57 (1996); Lester Coal Corp. v. 

Lester, 203 Va. 93, 97, 122 S.E.2d 901, 904 (1961). The four 

negative easements traditionally recognized at common law are, 

by their nature, easements appurtenant, as their intent is to 

benefit an adjoining or nearby parcel of land. See Federico 

Cheever, Environmental Law: Public Good and Private Magic in the 

Law of Land Trusts and Conservation Easements: A Happy Present 

and a Troubled Future, 73 Denv. U. L. Rev. 1077, 1081 (1996). 

 In contrast, an easement in gross, sometimes called a 

personal easement, is an easement “which is not appurtenant to 

any estate in land, but in which the servitude is imposed upon 

land with the benefit thereof running to an individual.” Lester 

Coal Corp., 203 Va. at 97, 122 S.E.2d at 904. At common law, 

easements in gross were strongly disfavored because they were 

viewed as interfering with the free use of land. Thus, the 

common law rule of long standing is that an easement is “never 

presumed to be in gross when it [can] fairly be construed to be 

appurtenant to land.” French v. Williams, 82 Va. 462, 468, 4 

S.E. 591, 594 (1886). For an easement to be treated as being in 

gross, the deed or other instrument granting the easement must 

plainly manifest that the parties so intended. Prospect Dev. 

Co., 258 Va. at 90, 515 S.E.2d at 299. 
9

 Because easements in gross were disfavored by the common 

law, they could neither be transferred by the original grantee 

nor pass by inheritance. Lester Coal Corp., 203 Va. at 97, 122 

S.E.2d at 904. By statute, however, Virginia long ago abrogated 

common law restrictions on the transfer of interests in land “by 

declaring that any interest in or claim to real estate may be 

disposed of by deed or will.” Carrington v. Goddin, 54 Va. (13 

Gratt.) 587, 599-600 (1857) (internal quotation marks omitted). 

Pursuant to this statutory change in the common law rule, 

currently embodied in Code § 55-6, we have recognized that an 

affirmative easement in gross is an interest in land that may be 

disposed of by deed or will. City of Richmond v. Richmond Sand 

& Gravel Co., 123 Va. 1, 9, 96 S.E. 204, 207 (1918). Following 

this Court’s decision in Lester Coal Corp., which in dictum made 

reference to the common law rule that easements in gross 

remained non-transferable by deed or will, 203 Va. at 97, 122 

S.E.2d at 904, Code § 55-6 was amended “to make clear the 

transferability of easements in gross.” 1962 Va. Acts ch. 169. 

Since 1962, Code § 55-6, in pertinent part, has expressly 

provided that “[a]ny interest in or claim to real estate, 

including easements in gross, may be disposed of by deed or 

will.” (Emphasis added). We subsequently acknowledged the 

intent of this statutory amendment in Corbett v. Ruben, 223 Va. 
10

468, 472 n.2, 290 S.E.2d 847, 849 n.2 (1982) and Hise v. BARC 

Elec. Coop., 254 Va. 341, 344, 492 S.E.2d 154, 157 (1997). 

 Code § 55-6 unambiguously speaks to “easements in gross” as 

interests in real estate capable of disposition by deed or will. 

There is no suggestion in this language that the statute was 

intended to apply only to affirmative easements in gross and not 

to negative easements in gross. The significance of this 

statutory change in the common law is manifest. Easements in 

gross, whether affirmative or negative, are now recognized 

interests in real property, rather than merely personal 

covenants not capable of being disposed of by deed or will as 

was the case under common law. Moreover, as pertinent to the 

present inquiry, such was the case well before 1973 in this 

Commonwealth. 

 The 1962 amendment and clarification of Code § 55-6 with 

regard to the transferability of easements in gross has 

facilitated, in part, Virginia’s long recognition of the value 

of conserving and preserving the natural beauty and historic 

sites and buildings in which it richly abounds. In 1966, the 

General Assembly enacted the Open-Space Land Act, 1966 Va. Acts 

ch. 461. This Act, currently found in Code §§ 10.1-1700 through 

-1705, is intended to encourage the acquisition by certain 

public bodies of fee simple title or “easements in gross or such 

other interests in real estate” that are designed to maintain 
11

the preservation or provision of open-space land. Code § 10.1-

1703. By definition, open-space land includes land that is 

preserved for “historic or scenic purposes.” Code § 10.1-1700. 

Additionally, in 1966, the General Assembly enacted statutes 

creating the Virginia Outdoors Foundation, 1966 Va. Acts. ch. 

525, and the Virginia Historic Landmarks Commission, 1966 Va. 

Acts ch. 632. As currently expressed in Code § 10.1-1800, the 

purpose of the Virginia Outdoors Foundation is “to promote the 

preservation of open-space lands.” The Virginia Historic 

Landmarks Commission, now known as the Virginia Board of 

Historic Resources, was charged with the designation of historic 

landmarks and districts. 1966 Va. Acts ch. 632, § 4(A). These 

statutes evince a strong public policy in favor of land 

conservation and preservation of historic sites and buildings. 

 As noted above, this public policy was expressly embodied 

in Article XI of the Constitution of Virginia which, since 1970, 

has provided: 

 § 1. To the end that the people have clean air, 

pure water, and the use and enjoyment for recreation 

of adequate public lands, waters, and other natural 

resources, it shall be the policy of the Commonwealth 

to conserve, develop, and utilize its natural 

resources, its public lands, and its historical sites 

and buildings. Further, it shall be the 

Commonwealth’s policy to protect its atmosphere, 

lands, and waters from pollution, impairment, or 

destruction, for the benefit, enjoyment, and general 

welfare of the people of the Commonwealth. 
12

 § 2. In the furtherance of such policy, the 

General Assembly may undertake the conservation, 

development, or utilization of lands or natural 

resources of the Commonwealth, the acquisition and 

protection of historical sites and buildings, and the 

protection of its atmosphere, lands, and waters from 

pollution, impairment, or destruction, by agencies of 

the Commonwealth or by the creation of public 

authorities, or by leases or other contracts with 

agencies of the United States, with other states, with 

units of government in the Commonwealth, or with 

private persons or corporations. 

 In further support of this public policy, the General 

Assembly in 1988 enacted the Virginia Conservation Easement Act 

(“VCEA”), Code §§ 10.1-1009 through -1016. In pertinent part, 

as defined in the VCEA a conservation easement is “a 

nonpossessory interest of a holder in real property, whether 

easement appurtenant or in gross . . . the purposes of which 

include retaining or protecting natural or open-space values of 

real property . . . or preserving the historical, architectural 

or archaeological aspects of real property.” Code § 10.1-1009. 

 Mindful of this background, we now consider the validity of 

the negative easement in gross granted to HGSI by the Atkinses 

in the 1973 deed and subsequently conveyed, with the Atkinses’ 

concurrence, to the United States in 1978. The validity of that 

easement is dependent upon whether it was a type of negative 

easement that would have been recognized by the law of Virginia 

in 1973. For the reasons that follow, we conclude that the 1973 

deed created a valid easement. 
13

 Blackman contends that a negative easement in gross for the 

purpose of land conservation and historic preservation was not 

valid in this Commonwealth until 1988 with the enactment of the 

VCEA. The thrust of this contention is that the VCEA would have 

been unnecessary if such easements were already valid. We are 

not persuaded by this contention. 

 Blackman’s contention suggests an analysis devoid of due 

consideration of the pertinent statutory and constitutional 

provisions in effect in the Commonwealth long before the 1988 

enactment of the VCEA. As discussed supra, Code § 55-6 since at 

least 1962 has recognized easements in gross, whether 

affirmative or negative, as interests in real property capable 

of being transferred by deed or will. Because easements in 

gross were not transferable at common law and, indeed, were 

strongly disfavored, it is self-evident that this statute 

materially changed the common law and recognized “interest[s] in 

or claim[s] to real estate” beyond those traditionally 

recognized at common law. Moreover, in the subsequent 1966 

enactment of the Open-Space Land Act, the General Assembly 

specifically recognized easements in gross when it authorized 

acquisition by certain public bodies of easements in gross in 

real property which is preserved for historic purposes. Such 

easements under that Act, under certain circumstances, would be 

negative easements in gross. Accordingly, while we continue to 
14

be of opinion that “the law will not permit a land-owner to 

create easements of every novel character and attach them to the 

soil,” Tardy, 81 Va. (6 Hans.) at 557, the easement at issue in 

the present case is not of a novel character and is consistent

with the statutory recognition of negative easements in gross 

for conservation and historic purposes. 

 More specifically, it does not necessarily follow that 

conservation easements were not valid in this Commonwealth prior 

to the enactment of the VCEA. There is ample evidence that 

similar interests in land were already recognized by statute 

under the Open-Space Land Act. Moreover, as referenced by the 

amici curiae in their brief, it is a matter of public record 

that conservation easements or similar interests in land, far 

from being unique to the Historic Green Springs conservation 

effort, have been in common use in Virginia for many years 

before the adoption of the VCEA. 

 In enacting the VCEA, the General Assembly undertook to 

comprehensively address various land interests that can be used 

for conserving and preserving the natural and historical nature 

of property. In so doing, the General Assembly addressed the 

use of such easements in a manner consistent with Code § 55-6, 

the Open-Space Land Act, and the public policy favoring land 

conservation and preservation of historic sites and buildings in 

the Commonwealth as expressed in the Constitution of Virginia. 
15

The readily apparent purpose of the VCEA was to codify and 

consolidate the law of conservation easements to promote the 

granting of such easements to charitable organizations. When so 

viewed, it is clear that the VCEA did not create a new right to 

burden land by a negative easement in gross for the purpose of 

land conservation and historic preservation. Rather, it 

facilitated the continued creation of such easements by 

providing a clear statutory framework under which tax exemptions 

are made available to charitable organizations devoted to those 

purposes and tax benefits and incentives are provided to the 

grantors of such easements. 

 The fact that such easements were being conveyed without 

these benefits and incentives prior to the enactment of the VCEA 

does not support Blackman’s contention that these easements were 

invalid at that time. To the contrary, Virginia not only was 

committed to encouraging and supporting land conservation and 

the preservation of historic sites and buildings in the 

Commonwealth, as evidenced by the constitutional and statutory 

expressions of that public policy discussed supra, but also 

recognized negative easements in gross created for these 

purposes as valid in 1973. Indeed, as noted by the district 

court, the granting of conservation easements by the landowners 

in the Historic Green Springs District was the direct result of 
16

the encouragement by the Governor for the express purpose of 

preserving the historic and natural beauty of that unique area. 

 For these reasons, we hold that the law of Virginia in 1973 

did recognize as valid a negative easement in gross created for 

the purpose of land conservation and historic preservation. 

Accordingly, we answer the first certified question in the 

affirmative. 

 Because we deem our answer to the first certified question 

to be dispositive, we will not address the second certified 

question. 

First certified question answered in the affirmative.