185 S.E. 852 | W. Va. | 1936
This case was brought in the Circuit Court of Upshur County by C. P. Henline and Lelah Henline against Henry Miller and Georgia Miller. The purpose of the suit was to enjoin the defendants, as the owners of a parcel of one acre and two and four-tenths poles of land, from trespassing upon a tract of thirteen and nine-tenths acres of land owned by the plaintiffs, adjoining the smaller tract. The defendants demurred to the plaintiff's bill, and after their demurrer was overruled, filed their answer. A demurrer to the answer was interposed and overruled, whereupon, the circuit court, on its own motion, certified to this court the questions arising upon the demurrer to the bill, as well as those arising upon the demurrer to the answer.
The bill of complaint alleges that on January 15, 1915, A. G. Karickhoff conveyed to H. W. Karickhoff a parcel of one acre and two and four-tenths poles together with a right-of-way over the remaining land of the grantor, being a tract of thirteen and nine-tenths acres, twelve feet wide and extending from the land conveyed to the Clarksburg Pike along the line between the grantor's *441 remaining land and that of A. G. Post. The bill further alleges that on the 15th day of September, 1921, A. G. Karickhoff conveyed to H. W. Karickhoff the tract of thirteen and nine-tenths acres over which the right-of-way appurtenant to the tract of one acre, two and four-tenths poles was reserved.
The bill of complaint further alleges that by mesne conveyances, describing each of them fully, the tract of thirteen and nine-tenths acres has become vested in the plaintiffs and the tract of one acre, two and four-tenths poles has become vested in the defendants, who reside thereon. These conveyances are described as containing certain reservations of the coal underlying the tracts, but with these reservations we are not here concerned.
The bill of complaint goes on to allege that the defendants, owners of the tract of one acre and two and four-tenths poles, have appropriated to their use, without right, a right-of-way over the thirteen and nine-tenths-acre tract that has nothing to do with the right-of-way granted as appurtenant to the tract of one acre, two and four-tenths poles, that the right-of-way being used by the defendants is not located as was the original right-of-way so granted, along the line between the thirteen and nine-tenths-acre tract and the land of A. G. Post but that the right-of-way actually in use is located entirely differently. The bill goes on to allege that unless enjoined, the defendants will persist in their continuous trespass over the land of the plaintiffs, and that the defendants have threatened to tear down and remove any fence or obstruction to their use of the right-of-way so appropriated by them that the plaintiffs may construct. The bill of complaint prays for an injunction to prevent the use by the defendants of the right-of-way so appropriated by them, and for general relief.
By demurrer to the bill, the defendants assign five grounds all of which except one turn upon the question of irreparable injury. The first is that the plaintiffs have an adequate remedy at law, the second, that no irreparable injury is alleged, the fourth, that the insolvency of *442 the defendants is not alleged, and the fifth that there is no equity in the plaintiff's bill. These grounds of demurrer all rest upon the proposition that a simple trespass to land will not be enjoined. But here we have the allegation of repeated and continued trespasses.
The rule in West Virginia with reference to the right to invoke injunction to prevent continuing trespasses upon land is not entirely free from confusion. In the case ofSchoonover v. Bright,
It would seem further that it has also been definitely established in this state that a trespass will be enjoined in equity, even with the plaintiff's title in dispute, where the relief is sought ancillary to a pending action at law or to an action at law immediately to be brought. Myers v. Bland,
The rule that a simple trespass will not be enjoined in a court of equity unless it is shown to result in destruction of the inheritance itself or that the injury from it is irreparable, is discussed in the earlier West Virginia cases ofCresap v. Kemble,
In spite of the trend of these earlier West Virginia cases, however, this court has more recently, without, perhaps regrettably, expressly overruling any of its former decisions, fallen in line with the more modern trend to the effect that repeated or continuing trespasses shown to result in an interference with the right of the plaintiff to enjoy his land in the purposes for which it is intended, may be enjoined upon a showing of clear title or as ancillary to an action at law pending or immediately to be brought. For a general discussion of the trend of modern law in this respect, see 14 Rawle C. L., p. 455, et seq. Among the West Virginia cases following this trend are Coal Coke Co. v. Bragg,
On the basis of the foregoing discussion, and considering the fact that the bill seeks to enjoin repeated trespasses, shows no dispute as to boundary lines and avers a clear and valid title in the plaintiff, we are of the opinion that the bill of complaint here is sufficient on demurrer. This certified question is so answered.
The answer filed by the defendants admits the averments of title contained in the plaintiff's bill; it denies the allegation that the defendants are wrongfully using a right-of-way over the thirteen and nine-tenths acres; it admits that they are using the right-of-way as alleged in the plaintiff's bill, but alleges that it is not the right-of-way originally granted as an appurtenance to the one acre, two and four-tenths poles tract of land, and states that the defendants are using the re-located right-of-way with full right and title thereto. The answer goes on to allege that soon after the conveyance that A. G. Karickhoff made to his son, H. W. Karickhoff, of the tract of one acre, two and four-tenths poles, in the spring of 1915, A. G. Karickhoff and H. W. Karickhoff verbally agreed to change the location of the right-of-way that had been granted, and that pursuant to that agreement, the granted right-of-way was changed to its new location upon the roadway now traveled by the defendants, which was constructed long before the conveyance of the tract of thirteen and nine-tenths acres to H. W. Karickhoff. The answer alleges that the right-of-way in its present location has been in use by the defendants and their predecessors in title for a period of more than fifteen years, with the full notice and knowledge of the plaintiffs who have resided since 1920 upon a tract of one acre adjoining the tract of thirteen and nine-tenths acres; that *445 the right-of-way as originally granted in connection with the tract of one acre and two and four-tenths poles has never been used, and that the plaintiffs have always been upon notice of that fact. The answer goes on to allege that at one time the plaintiffs furnished stone which was used in repairing the right-of-way over the thirteen and nine-tenths-acre tract, and that these plaintiffs have stood by knowingly and permitted the defendants to expend a large amount of time and labor in the repair of that right-of-way. The answers pray that the defendants may be dismissed at their reasonable costs.
We are of the opinion that this answer does not meet the allegations of the bill of complaint. It appears from the bill of complaint, and is admitted by the answer, that after the establishment of the right-of-way over the thirteen and nine-tenths-acre tract as appurtenant to the tract of one acre, two and four-tenths poles, whether that establishment be regarded as created by the deed, or whether it be regarded as created by the verbal agreement alleged to have been made between A. G. Karickhoff and H. W. Karickhoff in the spring of 1915, H. W. Karickhoff, on September 15, 1921, became vested with the title to the thirteen and nine-tenths-acre tract. The conveyance by which H. W. Karickhoff became the owner of the tract of thirteen and nine-tenths acres was made at a time when he was also the owner of the tract of one acre, two and four-tenths poles. This common ownership of both the dominant and servient estate had the effect of extinguishing the right-of-way. Pingley v. Pingley,
On the basis of the foregoing discussion, we are of the opinion that the Circuit Court of Upshur County erred in overruling the demurrer to the defendants' answer. It should have been sustained. The question on this certification is accordingly answered.
Affirmed in part; reversed in part. *447