After Decade-Long Legal Battle, White’s Ferry Closes

White’s Ferry, which has connected Loudoun with Montgomery County since six years after the Declaration of Independence was signed, announced it was ceasing operations on Monday following a court ruling that it could not legally use its landing in Virginia.

On Nov. 23, Circuit Court Judge Stephen E. Sincavage found that there was no record documenting the creation of a public landing on the Virginia shore and awarded the owners of the Rockland Farm property, where the ferry lands in Loudoun, $102,175 in damages for trespassing, property damage and breach of contract.

The closure comes more than 11 years after the Rockland Farm owners filed a lawsuit alleging the operators of the ferry trespassed, damaged Rockland property and breached a pre-existing agreement when they constructed a concrete retaining wall in spring 2004. Since then, prolonged negotiations and attempts at mediation have not been productive.

Elizabeth Devlin, one of Rockland’s owners and the daughter of former county supervisor Betsey Brown, said the ferry operators greatly expanded the size of the landing, without notifying Rockland’s owners and violating an agreement negotiated with her grandparents that allowed the ferry to use the land for $5 a year.

“They kept sending us the $5 a year check, and we kept returning it, telling them the licensing agreement is no longer in effect and we need to come to the table,” Devlin said.

And she said it was a “huge shock” when she heard Monday that the ferry would close.

“It was totally a shock to us, a huge shock that they would decide to walk away from running the ferry,” Devlin said. “From their accounting that they’ve sent to us for evidence during the trial, they’re netting around a half a million dollars a year, plus a hefty management fee for running the ferry. So why they would decide to just walk away from that lucrative business is just kind of a surprise to us, and we certainly had nothing to do with it.”

She said repeated attempts at negotiating with the ferry’s owners were met mostly with silence. That included an offer to buy the ferry business for five times its earnings plus the appraised value of the landing on the Maryland side, which Devlin said was turned down without a counteroffer.

“Our attorneys were trying to reach out to their attorneys … to get an interim agreement to keep the ferry operating while we negotiated some other arrangements with the ferry, and part of that was we offered again to buy the ferry, or lease our land, or we were open to other arrangements,” Devlin said. “And we purposefully delayed submitting the order to the court, hoping to reach an agreement with them to keep the ferry running. That’s in the best interest of everyone, to keep the ferry open and running. We would never get a response.”

“We never wanted to have the ferry shut down,” Devlin said. “It’s good for everyone. It’s good for Rockland, it’s good for the community, it’s good for all the commuters in Maryland. Plus, the Rt. 15 traffic in front of our house is like crazy, and it’s a benefit to have the ferry and not have all that traffic on Rt. 15.”

White’s Ferry owner/operator Herb Brown said on Monday that his team closed the ferry for good last Saturday, during a few-day period when they were already closed because of high water and debris floating downstream. He said he tried to resolve the legal dispute before it got this far, by previously offering the Rockland Farm owners a payment of $100,000. He said the Rockland Farm owners’ attorneys said that was an “insulting offer.”

“We’re devastated,” he said. “As of right now, we’re closed permanently. … We got to sit down and study it and think about it.”

White’s Ferry, located just north of Leesburg, pulls 24 cars at a time across the Potomac River along a 300-yard cable, with one landing on the Montgomery County, MD side and another on the Loudoun County side. It has been in operation since January 1782, originally as Conrad’s Ferry.

Following the Civil War, Confederate Colonel Elijah V. White purchased the ferry and renamed the service after his family. He thereafter petitioned the Loudoun Circuit Court to condemn and acquire the public title to the road leading to the landing and the landing itself. The Commissioners of the Townships of Loudoun issued a resolution doing just that in March 1871. According to a statement by Rockland Farm, the county condemned a landing at Rockland Farm of 1 perch by 16 perches—about 5.5 yards by 88 yards.

In 1946, the Brown family acquired the ferry. It has been in their family ever since and for decades has been providing hundreds of thousands of commuters a quicker travel route to and from the city. According to case documents, White’s Ferry and the owners of the Rockland Farm property entered into a licensing agreement in 1952.

The dispute that led to the 2009 lawsuit filed by the Rockland Farm owners arose in May 2004, when ferry operators demolished a wooden retaining wall that was built in 1982 and was partially destroyed by Hurricane Isabel in 2003.

A Long Legal Battle

In it the place of the old retaining wall, the operators installed a new concrete wall—an action the owners of Rockland Farm claim in their July 2009 complaint was in violation of the licensing agreement.

In addition to claiming White's Ferry operators trespassed, damaged property and breached their contract, the Rockland Farm lawsuit, which remained largely inactive until August 2013, also alleged that the ferry operators were unjustly enriched by pulling in $675,000 each year in net profits, or more than $7 million since 2004, according to a Dec. 28 statement from Rockland Farm. The owners of Rockland Farm sought $500,000 in damages via each of those four counts.

According to their complaint, White’s Ferry was “not to erect any additional poles or wires, not to make any changes to the existing poles or wires other than normal replacement or repair, and not to do any additional excavating nor make any changes in the existing approaches, roadways, structures or facilities on the [Rockland Farm property] without the written consent of” the Rockland Farm property owners.

The Rockland owners in their complaint asserted the White’s Ferry operators “without any permission or authority willfully, wantonly and in conscious disregard of Plaintiffs’ rights, invaded the property” to build the new retaining wall, “substantially” re-grade the river bank and dump “uncontrolled fill material” on other portions of the Rockland property.

According to Circuit Court Judge Stephen E. Sincavage’s Nov. 23 opinion, Rockland Farm terminated the 1952 licensing agreement when White’s Ferry operators “refused to restore the property” in 2004.

Among the arguments of the ferry operators was that the landing and access road had been subject to public use because of an 1871 road condemnation case or as a result of the 1932 Byrd Act, which converted public roads, bridges and landings from local to state control. However, Sincavage concluded that there was not compelling evidence to conclude the landing was subject to public use status.

Although the White’s Ferry operators admitted to performing the construction work without permits in their October 2016 answer to Rockland’s complaint, they also asserted that the 1871 resolution extinguished “any rights in and to the landing area of Plaintiffs’ predecessors-in-interest.”

“As a result of the resolution, the landing area became a public landing and continues to be up and to the present time,” the ferry operators’ July 2010 plea in bar reads. “Plaintiffs do not have actual or constructive possession of the land or any possessory interest sufficient to maintain an action in trespass against Defendants.”

But in his opinion, Sincavage wrote it was speculative to surmise that the landing was made a public right of way and ruled in favor of Rockland's claim of trespassing.

In their July 2010 plea in bar, the ferry owners objected to the claim that they damaged Rockland property because there was “no reasonable expectation of compensation” because the licensing agreement had been terminated.

Still, Sincavage ruled in favor of the Rockland Farm owners in regard to ferry operators damaging the property.

The ferry owners also asserted that the Rockland Farm owners were barred from claiming a breach of contract because Virginia law imposes a five-year statute of limitations on contracts that are “not otherwise specified” in that section of law.

Sincavage pointed out that the ferry owners’ construction work happened before the termination of the 1952 licensing agreement and ruled in favor of Rockland.

The only claim Sincavage did not find in favor of the Rockland Farm owners was the allegation of unjust enrichment, to which he wrote that the Rockland property owners had not “proven the value of the benefit with reasonable certainty.”

Under the November court ruling, a new agreement with the landowners or the establishment of a public landing would be required to keep the ferry operation going.

Social Media Backlash

Since the surprise announcement dropped, reaction on social media has been fierce, with people on Facebook spreading rumors and attacking Rockland—and other businesses unfortunate enough to share the name. Both Rockland Farm Winery in Poolesville, MD and Rockland Farm Weddings, a venue in Bumpass, VA posted on their Facebook pages clarifying that they are not involved.

“****NOTICE*** TO ALL THE ACTIVISTS OUT THERE THAT JUMP TO CONCLUSIONS BEFORE DOING THEIR RESEARCH**** WE ARE NOT!!!! I REPEAT ARE NOT!!! THE ROCKLAND FARM THAT WAS INVOLVED WITH SHUTTING DOWN A FERRY IN LEESBURG,” posted Rockland Farm Weddings. The venue threatened legal action for any further negative reviews, harassment or phone calls.

It has also elicited responses from elected officials on both sides of the river.

The county government on Monday afternoon released a formal statement stressing that the county was not a party to the dispute between the two private parties. According to the statement, the parties had been negotiating an agreement to continue the use of the property.

“While Loudoun County is not party to the legal dispute, the county remains concerned about the outcome from a regional transportation perspective. We recognize that any impact to ferry service may impact our residents and people who work in Loudoun County,” the statement reads.

Supervisor Caleb Kershner (R-Catoctin) issued a statement pointing out that the situation “illustrates the critical need to pursue a future bridge crossing between Virginia and Maryland. Regional connections between Maryland and Virginia are extremely susceptible to issues such as the closure of White’s Ferry and the American Legion Bridge.”

The supervisor said more should be done to build a new Potomac River crossing in eastern Loudoun, which was endorsed in concept by the county board in 2018.

“I call on our regional transportation leaders to see the benefits of what can be achieved by addressing long overdue regional transportation needs by building an additional bridge crossing between Virginia and Maryland. Less congestion will deliver job opportunities, quality of life for our residents, and economic development to our region,” Kershner said.

And Loudoun County Chair Phyllis J. Randall (D-At Large) said she will raise the issue in the county boardroom in early 2021 and said the ferry's closure will have "far reaching negative consequences on the hundreds of Loudoun residents who use this mode of transportation regularly."

"As the Chair of both the Loudoun County Board of Supervisors and the Northern Virginia Transportation

Authority, I am keenly aware of the need to have a variety of viable transportation alternatives

in order to maintain a successful regional interconnected system," Randall stated. "In the past, I have publicly stated my support for another Potomac River Crossing and I have personally gone over to discuss this issue with Elected Officials in Maryland. They have repeatedly and clearly stated they are not interested in even engaging in the conversation."

"It would truly be a real shame if we were to lose the ferry," said Leesburg Mayor Kelly Burk. "It has an important historic aspect to it and people do use it on a regular basis, as it cuts off their commuting time. I understand this is a dispute between two private parties and I hope they’ll take into consideration the importance of the ferry and the affection so many people in the community have for it."

The Town of Poolesville, MD also published a statement Monday morning calling the ferry “an integral part of the Western Montgomery County area, the connection to Northern Virginia, a historic treasure, and a vastly important piece of transportation infrastructure.” According to that statement, Poolesville commissioners are working with Montgomery County and Maryland state officials to keep the ferry open. Their role in doing so is unclear.

“The closing of this important transportation link, will have a massive impact upon countless commuters, surrounding communities, and alternate routes of travel,” stated Commission President Kerri Cook. “Also, the western part of the county is identified by a rich history and unique character and White’s Ferry is an essential element of that Montgomery County history.”