In this civil action, instituted in the Circuit Court of Mineral County, the plaintiffs, Lawrence D. Fanti and Marjie J. Fanti, his wife, seek a judgment against the defendants, James A. Welsh and Nora E. Welsh, his wife, declaring that the plaintiffs have a right to continue to maintain a certain sewer under lands purchased by defendant James A. Welsh. They further seek injunctive relief to prevent the defendants from blocking or otherwise interfering with the use and enjoyment of the sewer.
Pursuant to Rule 53 of the Rules of Civil Procedure, this matter was referred to a commissioner before whom evidence was taken. Thereafter the commissioner reported to the court that in his opinion the plaintiffs had failed to establish a prescriptive right to said sewer line and recommended a denial of their claim. The court, upon further consideration, set aside the report of the commissioner and entered an order declaring that plaintiffs have a prescriptive right to the sewer line. It is from this order that the defendants prosecute this appeal.
The following factual situation, as it appears from the record, gives rise to this controversy. The plaintiffs own and reside in a house situate on West Fairview Street in the City of Piedmont, Mineral County, West Virginia. Plaintiff Lawrence D. Fanti was bom in this house, it formerly having been owned by his father, Tony Fanti. The basement of this house is at a level lower than that of Fairview Street, making it impracticable to use the storm sewer in that street to service such house. Consequently, as related by plaintiff Lawrence D. Fanti, Tony Fanti in 1934 constructed a sewer line from the basement of said house across Fairview Street and down the bank in and under the property of The Baltimore and Ohio Railroad Company, such property now being owned by the defendants. Lawrence Fanti, then fourteen years of age, assisted his father in such construction.
Lawrence D. Fanti and other witnesses testified that the construction of this sewer line took approximately ten days; that work thereon continued around the clock, there
having been lights placed at the construction site at night; that the sewer was laid under Fairview Street, thereby interfering with the free flow of traffic; that during such construction, including that on the then railroad company property, passenger
By deed dated September 25, 1963, The Baltimore and Ohio Railroad Company conveyed to the defendant, James A. Welsh, a tract of land consisting of 1.41 acres. This tract consisted of the railroad station, including tracks, buildings and improvements, a part of which is the bank under which the subject sewer was laid. The habendum clause of this deed contains the following language: “TO HAVE AND TO HOLD the premises aforesaid * * * subject, however, to * * * all existing ways and servitudes, howsoever created.”
James A. Welsh testified that the first time he learned of the sewer line was when this suit was instituted against him. He stated that he had the title “checked” by an attorney and that the report thereof did not show the existence of the subject sewer or any servitudes or easement. No mention whatsoever was made of the sewer by any agent or representative of The Baltimore and Ohio Railroad Company at the time of the conveyance. Mr. Welsh went onto the land prior to his purchase thereof. His examination of such property failed to reveal any evidence indicating or suggesting to him the presence of the sewer.
Lawrence D. Fanti testified that after Mr. Welsh purchased this property, he had reason to believe that Mr. Welsh, in the conduct of his business, would destroy the sewer which his father had constructed. Tailing the position that the habendum clause, the pertinent part of which is quoted above, gave him the right to the continuous use and enjoyment of the sewer, the plaintiffs instituted this action. The plaintiffs contend that they have obtained an easement by prescription which cannot now be disturbed.
The defendants deny the plaintiffs’ claim that they are entitled to the continued use of the property wherein the sewer line is located by reason of the plaintiffs’ use thereof for a period in excess of thirty-three years.
Inasmuch as the plaintiffs readily admit that they do not have an easement in the subject property by grant, any right they may have to the continued use of the sewer line must be based upon an easement obtained by prescription. The requisites for obtaining an easement by prescription are well settled.
Monk
v.
Gillenwater,
The commissioner, in accordance with the testimony of witnesses, held that the use by the plaintiffs and their predecessor in title has not been “a visible use”; that such use was visible, at most, only a few months after the sewer was constructed in 1934; “that the sewer line was not used with the knowledge and acquiescence of The Baltimore and Ohio Railroad Company”; and also that “Since this use of this sewer line was not open and public or notorious, there would be no presumption
It is urged in behalf of the defendants that these findings of fact made by the commissioner are entitled to peculiar weight. Had the commissioner’s findings been sustained by the trial court, the defendant’s contention would be more forceful.
Baker
v.
Hamilton,
In the instant case, however, the trial court did not adopt the findings of ithe commissioner but clearly disaffirmed them. In these circumstances an appellate court must make its determination from the record. As stated in Pt. 1 of the Syllabus of
Hyre
v.
Lambert,
From the findings and decision expressed by the trial judge, it is obvious that he relied, in a great measure, upon the existence of certain manholes on or near the defendants’ property as disclosed by a view of the premises by the trial judge and also by an exhibit map which was apparently made by the mayor of the City of Piedmont. The map indicates that there is or at least previously had been a sanitary or storm sewer line over a portion of the property purchased by the defendants from the railroad company. The trial court reasoned that these facts constituted a basis of notice to the railroad company and to the defendants of the plaintiffs’ alleged prescriptive easement right. The trial court also apparently reasoned that, inasmuch as a map made by the mayor indicated the location of a sewer line over the defendants’ land, there must have been available to them, and to their predecessor in title, information of this character in the municipal records. We are of the opinion that the trial court’s judgment in this respect is clearly wrong. While the manholes and the exhibit map may have been reasonably sufficient to indicate that the defendants’ land was burdened by a sewer line which was a part of the municipal storm and sanitary sewer system, particularly to accommodate the railroad company in its use of its property, we are of the opinion that these matters were insufficient, when considered in the light of the testimony, to establish notice to the railroad company or to the defendants of a claim of the plaintiffs of a prescriptive easement to maintain a private sewer line over the land in question for the benefit of the plaintiffs or of their property. Plaintiff Lawrence D. Fanti testified that to his knowledge the railroad company had no knowledge of the existence of his sewer line over the land in question.
The commissioner made an additional finding, which we consider sound, as follows: “Since it is stipulated that the existence of this sewer fine could not be discovered
6 M. J. Easements, Section 22, page 489, which was referred to by the commissioner in his report, is as follows: “Certain easements are of such a nature, that the use and enjoyment of them is obvious and apparent, for example, the right of drip, or surface drains, while the use and enjoyment of others are or may be hidden and invisible to the physical eye, such as underground drainage, or may be entirely consistent with the absence of all right to such use, as in the case of the easement of light, air, or prospect over a vacant lot. The last two classes of easements may readily escape the notice of a purchaser of the servient lot, and it would be an injustice to require him to admit such a burden, when he buys without notice thereof. Hence, it is a well-established principle governing the purchase of servient tenements that an easement therein is extinguished unless the purchaser has either actual notice of the existence of the easement, or constructive notice from the recordation of the express grant or reservation creating it, or from the fact that its use and enjoyment is open and visible.” To the same effect see
Shaver
v.
Edgell,
During the taking of testimony before the commissioner, it was stipulated that, after the sewer was installed and covered, grass grew over the area of the previous excavation and that “there has been no visible indication of a sewer between the Fanti property and the manhole located on the former Baltimore and Ohio Railroad Company property now owned by the defendant, James A. Welsh.” The testimony further indicates that there is nothing visible to indicate where the sewer line crosses Fairview Street from the Fanti property to the Welsh property. Lawrence D. Fanti testified that he never at any time erected any markers of any character to indicate the location of the sewer line on the property in question. Defendant James A. Welsh testified that a check of the title made by his attorney failed to disclose any servitudes or easements upon the property.
By way of summary, we are of the opinion that the commissioner correctly held that the plaintiffs failed to prove by a preponderance of the evidence that, for a period of ten years, the plaintiffs’ use of the railroad property for maintenance of a sewer line for their benefit was visible, open and notorious under a claim of right and with the knowledge and acquiescence of the owner of the land; and that the commissioner also correctly held that James A. Welsh was a purchaser for value without actual or constructive notice and that, therefore, even if a prescriptive right to an easement had been acquired by the plaintiffs as against the railroad company as owner of the land, such right was extinguished and that Welsh, as a purchaser for value without notice, took the land free and clear of any such easement right.
For reasons stated in this opinion, the judgment of the Circuit Court of Mineral County is reversed.
Reversed.