153 S.E. 146 | W. Va. | 1930
Defendants, J. W. Taylor and J. B. Wolfe, purchased the timber on the Joseph Dorsey 31 1/2 acre tract and the A. E. Drennan 35 acre tract. In this proceeding, plaintiffs seek to enjoin the transportation across their lands of the timber from these two tracts. The lower court denied permanent relief to the plaintiffs.
"An easement of a right of way over another's property is appurtenant to the particular piece or lot of land of the dominant owner with which it is granted, and is not personal to the owner, authorizing him to use it in connection with other real estate he may own." Schmoele v. Betz,
These facts discountenance the opinions above referred to. There is no evidence relating to the costs of hauling the coal and the walnut logs across the Drennan lands; but it is not reasonable that such transportation (continued in connection with the coal mine over a number of years) was prohibitive. If these products of the 35-acre tract could be marketed in wagons (teamed) over the Drennan lands, we see no reason why the remaining timber cannot be likewise marketed. Convenience is not the basis of a right to an easement. "A party cannot have a way of necessity through the land of another (ordinarily) when the necessary way to the highway can be obtained through his own land, however convenient and useful another way might be." 19 C. J. 922; 9 R. C. L. p. 770; Shaver v. Edgell, supra, 49 W. Va. page 509, 37 S.E. 664; Miller v. Skaggs,
The defendants have shown no right to subject the lands of plaintiffs to a servitude in favor of the 31 1/2 and 35 acre tracts. Such a subjection would constitute a continuing trespass. Equity may therefore intervene. Robertson v. MineralCo.,
The judgment of the lower court will accordingly be reversed and the temporary injunction granted herein reinstated.
Reversed; injunction reinstated. *114