69 W. Va. 233 | W. Va. | 1911
In this suit by a land owner, to enjoin the defendant from the use of a right of way over Ms land, claimed in part by a deed and in part by prescription and long user, the defenses were a former adjudication in favor of the plaintiff and insufficiency of the defendant's evidence to establish the right claimed by him. The decree appealed from, general in form and without indication as to its legal basis, is for the plaintiff and perpetually enjoins the defendant from the use of said right of way.
The plaintiff owns three contiguous tracts of land, adjacent to the northwestern end of which lies the farm of the defendant. From the latter an old road, holding a southeasterly course, runs over the farm of the plaintiff, consisting of said three tracts, in a southeasterly direction, to a public road called the “New Creek Pike.” The evidence conclusively shows that this road has been used by persons residing back of the plaintiff's land for a long time, forty or fifty years, and by the defendant and his predecessors in title for at least twenty-five or thirty years and possibly for the whole period aforesaid. If nothing else appeared, this would make> under our decisions, a clear case of a right of way by prescription. But there are some other facts to be considered. The three tracts of land constituting the plaintiff’s farm seem' to have been owned at one time by J ames B. Bees, as a single tract. The deeds exhibited indicate this. By deed dated Feb. 6, 1884, said Bees conveyed to Joseph W. Parish a tract of about 56 acres practically out of the center of what now constitutes the plaintiff's farm. In that deed, he granted to Parish a right of way over the land thereby conveyed, determinable as to location by the old existing road, out to the public road. He also reserved a right of way over the land granted to Parish “for the use and benefit of William Leatherman, his heirs and assigns.” At that time, Leatherman owned the farm now owned and occupied by the defendant. Hence, this reservation constituted an exception from the grant to Parish in favor of Leatherman, the predecessor in title of Charles W. Shoemaker, the defendant here. The right of way, "
As to the effect of a judgment in such an action upon title, the authorities are in great conflict. Dickinson v. Mankin, 61 W. Va. 429; Clark v. Dower, 67 W. Va. 298. In the latter case, the judgment was held not to be appealable, although a special plea was entered by the defendant, setting up a right of way by prescription. In the former, the title was held not to have been settled and determined, although the defendant entered both a plea of not guilty and plea of liberum tenenventum, and evidence was adduced on the question of title. Ho good purpose would be subserved here in attempting to analyze or reconcile the conflicting authorities, or deduce from them the true rule, since we are of the opinion that the right claimed by defendant was not litigated in the action at law. The only plea shown by any order entered in the case was that of not guilty. A paper is certified by the clerk of the trial court which purports to be’a copy of a special plea, setting up the right of way by prescription, but we find no order showing it to have been tendered or filed, or in any way made a part of the record. Though it is not clearly shown that any of the evidence used in that action has been made a part of the evidence in this cause, or that the right was litigated and determined, what on its face seems to have been evidence used in the action at law, has been incorporated in this record. Ho witness testifies that it is the evidence in that case nor does the clerk of the circuit court certify that it was. However, conceding it to be such, it only shows the title of the plaintiff to the land, the erection of fences and locking of gates across the road and the breaking of the same by the defendant and his
The all important question remaining to be considered is the effect of the deed made by William S. Leatherman to S. S. Kees, conveying land on which a part of the road is without a reservation thereof. Ordinarily, a grantor is not permitted to set up, by parol, any reservation against his deed, purporting on its face to grant all of his right, title and interest in a tract or parcel of land. Of course, he cannot claim any of the land against his deed. Such a construction of a deed’would render it nugatory and defeat its purpose in whole or in part. Under a well settled rule, it must be so construed as to give it effect to the extent of its entire subject matter. It is nevertheless possible for a grantor to claim, under exceptional and peculiar circumstances, an easement over the land granted as appurtenant to other lands retained by him. This easement is not the land itself and the retention thereof does not wholly defeat the deed as to any part of it. It is a mere right of use, not title. In such cases, the question is one of intention, but the circumstances must be such as to disclose the existence of that intent beyond any reasonable doubt, and such intent must arise from necessity, else the doubt is not excluded and the reservation cannot be maintained. The law on this subject is stated as follows in Jones on Easements, sec. 136: “There is no implied reservation of an easement -ini case one sells a part of his land over which he has previously exercised a privilege in favor of the land he retains, unless the burden is apparent, continuous and strictly necessary for the enjoyment of the land retained. A grantor cannot derogate from his own grant and as a general rule he can retain a right over a portion of his land conveyed absolutely only by express reservation.” Again., in section 138, this author says, quoting from Lord Justice Cotton, “So again where there is existing at the time that which is said to bé a continuous easement, and of necessity — not an easement strictly, but that which is in the nature of an easement — as a way of necessity; of that there is or may be an implied reservation. Take the common case of a man having a field, which he does not sell, in the midst of land
In the textbooks and decided cases, we are told that the easement, to pass to the grantee, or be retained by the grantor, by implication only, must be apparent, continuous and necessary. Haturally, the use of these terms is sometimes confusing, for the reason that they are employed in the long course of discussion and not always defined. Bach has its own definition with which the reader is supposed to be familiar. An apparent easement need not be actually visible. It is enough that the facts and circumstances, fairly construed, will disclose it, as in the case of a drain pipe under the surface into which the water is conducted from a roof. There are different kinds of necessity. A thing may be necessary in the physical sense or in, a practical or legal sense. So the word “continuous” has its different meanings. In a practical sense, a road is continuous as long as it is maintained and used, although the use is unautomatic and, from necessity, intermittent. But it is not continuous within, the meaning of the technical law of easements. The distinction made is that a continuous easement is one which operates without the interference of man, such as a water-course or drain pipe. A way is said not to be continuous, because, in the use of it, there is involved the personal action of the owner, in setting his foot upon it or driving his team or cattle upon it. Jones on Easements, secs. 143 to 153, inclusive. Judges and text writers do not always stop to define these terms. Hence the danger of misapprehension on the part of the reader and the necessity of noting the facts in respect to the terms used.
In some decisions, it has been held, though perhaps erroneously, that an apparent and technically continuous easement would always pass to a grantee, or be reserved to the grantor, by implication, even though it did not appear to be necessary. In other words, if the owner of two adjacent pieces of property, having subjected one to the use of the other, by making a drain ■over it or running an under-surface ditch through it, or otherwise connected them, and this connection was apparent, it was
This rule of construction came, in time, to be regarded as too liberal, and the later authorities added the element of necessity, holding that an easement of this kind must be not only apparent and continuous, but also necessary. This addition has, in later years, been a subject of learned and earnest discussion in both England and America,- and is now generally accepted. Accordingly, we find this in Jones on Easements, sec. 156: “To establish an easement by an implied reservation, where there has been a unity of possession;, and a subsequent sale of a portion of the land over which the easement is claimed, such easement must have been apparent, continuous and necessary at the time of
This quality or characteristic of continuousness does not belong to a right of way. Such an easement is not self-operating. It is only a place in which its owner operates. So it is not continuous in the technical sense of the word. Jones on Easements, sec. 143. Therefore, to say that, in order to pass to a grantee, or be retained by a grantor, by implication, a right of way must be apparent, continuous and necessary, is to state thiat which can never be true of such an easement, and also that it never can pass or be retained in that way. It seems clear, therefore, that a right of way, to pass or be retained by implication, need not be continuous. If it must, it never can be the subject of an implied grant or reservation. That it can be is put beyond doubt by authorit}1, both English and American. A way of necessity may be reserved to a grantor by implication, though it is confessedly not continuous. Pinnington v. Gallond, 10 Eng. Rul. Cas. 35, 9 Ex. 1. In that case Martin,' Baron, said it might be both granted and reserved by implication. For the first proposition, he quotes from the note of Mr. Serjt. Williams to the case of Pomfret v. Ricroft as follows: “Where a man, having a close srrrrounded with his own land, grants the close to another in fee, for life, or for years, the grantee shall have a way over
These authorities amply justify the view that Leatherman impliedly reserved the right of way over the land he granted to-Rees, by his deed of December 11, 1895, if such right of way was strictly necessary to the enjoyment of his property. He clearly has a right of way by prescription over the Parish and Burkhiser lands down to the public road. He had formerly enjoyed the use of a road over the Rees-Leatherman 18
These conclusions result in a reversal of the decree, dissolution of the injunction and dismissal of the bill.
Reversed, and Dismissed.