| W. Va. | Apr 26, 1921
The decree below overruled defendants demurrer to tbe bill, and in accordance with the prayer for relief, adjudged, ordered and decreed that the temporary injunction theretofore granted, inhibiting and restraining defendant J. B. Kennedy, his agents and all others from in anywise molesting or interfering with plaintiff in the use of a certain right of way from the lands of plaintiff on the southwest side of Plat Top Mountain, in Wolf Creek District, Monroe County, and passing through the lands of - said’ J. B. Kennedy and others to the public road leading from Sinks Grove to Al-derson, in said county, fully described on a plat filed with the bill, be and the same was thereby perpetuated, in so far only as said plat sets forth the old and original roadbed or right of way, but not to apply to the new roadbed recently made and traveled through the lands of said defendant, but to said old roadbed and right of way only.
And it was further decreed, that as plaintiff did not ob-jéct, defendant might maintain drawbars or gates across said right of way at the points where he had placed the obstructions complained of, but not so as to obstruct the use thereof as theretofore by said plaintiff.
The first point of error relied on by defendant to reverse the decree is that the court below should have sustained his demurrer to the bill; first, because of the abselnce of necessary parties, namely, H. T. Kennedy, R. O. Burdett and J. 'W. McNeil, through whose respective tracts, as well as that of defendant, said right of way runs to said public road; second, that'plaintiff has a complete and adequate remedy at law for damages, the bill, it is claimed, showing no irreparable injury; third, that the right of way claimed is not alleged to be an exclusive right, not existing and depending on the rights of others or of the public in general.
Responding to the first of these propositions, namely, want of necessary parties, the bill makes no allegations against the absent parties; nothing is alleged against them, if present, upon which to base any relief; they are not alleged to be obstructing the right of way; according to the bill the
On the second point of demurrer, adequate remedy at law, contrary to the contention of defendant, the bill does allege great and irreparable injury by the obstruction sought to be enjoined; wherefore the alleged want of sufficient averment of irreparable injury is without merit.
But does the law furnish plaintiff an adequate remedy for the wrong complained of? According to the bill his land lie's back of that of defendant; and without access to the public road he would be completely cut off, except by the permission of others to use some other passway, much less
Tbe third point of demurrer, namely, want of allegation of exclusive right in plaintiff of the way obstructed, is equally without justification in point of law. Such rights of way in the dominant owner is not affected by the fact that others or even the public may also have similar rights in such way, if his right be exclusive in the sense that no one else may lawfully oppose him in that right. Boyd v. Woolwine, 40 W. Va. 282" court="W. Va." date_filed="1895-03-30" href="https://app.midpage.ai/document/boyd-v-woolwine-6595141?utm_source=webapp" opinion_id="6595141">40 W. Va. 282, 285; Staggers v. Hines, 87 W. Va. 65" court="W. Va." date_filed="1920-09-28" href="https://app.midpage.ai/document/staggers-v-hines-8179030?utm_source=webapp" opinion_id="8179030">87 W. Va. 65, 104 S. E. 768. The case of Reid v. Garnett, 101 Va. 47" court="Va." date_filed="1903-01-15" href="https://app.midpage.ai/document/reid-v-garnett-6810681?utm_source=webapp" opinion_id="6810681">101 Va. 47, cited in support of this proposition does not sustain the position of defendant’s counsel. On the contrary it is rather in accord with our decisions. It is true as we have said of our own cases, that the right of plaintiff must exist independently of the rights of others or of the public. The facts alleged in the present bill make out such a case of individual right.
The demurrer having been properly overruled, we have yet to consider the case upon its merits as made by pleadings and proofs. It is alleged that the land of plaintiff constituting the dominant estate consists of 125 acres acquired by him about five years prior to this suit, from J. H. A. Miller and wife, who had owned the same for above twenty years prior to conveying it to plaintiff; that Miller had acquired the land from his father, who had owned the same for about thirty-five years; and plaintiff alleges that he is the owner of said right of way, and that he and those under whom he claims had been in continuous possession of said land for at least forty years next prior to the institution of this suit, and had used said way for traveling, hauling, walking and riding, continuously, uninterruptedly and adversely, with the knowledge and acquiescence of the owners through whose lands the same passes, without any obstruction or permission of anyone, that it is the only practical way plaintiff has from his land to the public road aforesaid; that neither the defendant nor any of the servient owners has previously denied plaintiff’s right to travel said road, or obstructed the same until the acts of the defendant complained of in
There is some evidence showing or tending to show that during the existence of said way some or all of the servient owners through whose lands the way runs have also made use of the same; also that it has been some times traveled by the public in general. But it is clearly shown that the rights of the plaintiff and of those under whom he claims do not depend upon the rights of the other owners, nor of the rights of the public to travel over the same. His rights extend back for a long period of years, not acquired by permission of the servient owners, but by continuous, adverse and unobstructed use thereof under a claim of right. There was no pretense on the part of defendant to show permissive use thereof by plaintiff by anyone. So that plaintiff’s right is and has been exclusive and independent of the rights claimed by others, and his right may not under the authorities be interrupted or obstructed by defendant or anyone else without his consent.
Another ground of defense is that, as this way runs partly through lands purchased by plaintiff prior to his purchase of the 125 acres, the lesser estate became merged in the greater, and thereby extinguished not only the lesser estate as it pertains to that particular tract, but also as to the entire right of way through the lands of others, and that he thereby wiped out his right of way through other lands to said public road. This is a novel proposition, to say the least of it, but it is unsupported by the law of the land. It is true that the lesser estate, the right of way through plaintiff’s other land, became vested in the greater estate in that land; but that fact would not debar him from his right of way acquired by prescription through the lands of the other sekvient owners. Because the lesser estate in his particular estate, by his acquisition of the greater estate, became merged therein, would not deprive him of the right to use the way through it; he could still use that part of the way, of course ; and what reason or authority says he would thereby be de
Another defense urged is that plaintiff is shown to have made use of the way for the interchange of farm implements, produce, etc., including cattle, etc., between the land to whom the way is appurtenant and his other farm abutting on said public road, thereby imposing an additional burden on the servient estate, not permitted by the right. It is true as matter of law that a right of way so acquired by prescription is not necessarily limited as to the character of the use that can be made Of it, and that the owner of the dominant estate may use it only for such purposes and in such manner as have been fixed and determined by the use) made of it during the period of prescription. Staggers v. Hines, supra; Henrie v. Johnson, 28 W. Va. 190" court="W. Va." date_filed="1886-07-02" href="https://app.midpage.ai/document/henrie-v-johnson-6593481?utm_source=webapp" opinion_id="6593481">28 W. Va. 190; Shaver v. Edgell, 48 W. Va. 502" court="W. Va." date_filed="1900-12-15" href="https://app.midpage.ai/document/shaver-v-edgell-8174906?utm_source=webapp" opinion_id="8174906">48 W. Va. 502. In the two cases last cited the ways involved were established in partition suits and reserved over the parts allotted to some for the use of purparts allotted to others; and- it was held that the burdens thus imposed could not be increased by the use thereof for other lands. Such is not the kind of use made by plaintiff of the way now under consideration. Everything taken to or from the land to which the way is appurtenant was for the use of that land, and what difference does it make so far as the burden is concerned whether the products come from lands of plaintiff or from some other source? The burden is no greater in the one case than in the other. If the plaintiff, however, should undertake to make use of the way for another farm or tract to which the way did not pertain, á different case would be presented. There being no misuse of the way, there is no ground for the further contention that such misuse extinguished the right of the plaintiff to any use thereof. Such a proposition is repudiated in our recent case of Sharp v. Kline, 82 W. Va. 13" court="W. Va." date_filed="1918-03-05" href="https://app.midpage.ai/document/sharp-v-kline-8178458?utm_source=webapp" opinion_id="8178458">82 W. Va. 13, syl. 2.
. Still another proposition contended for by defendant is that plaintiff had not confined himself to the particular way involved, but had made use of a detour therein, around a swamp or mudhole. Making use of such a temporary detour
Another point, of no merit, urged by defendant is that another way through this land, called the upper road, was sometimes used by plaintiff, and which there is some evidence to show he at one time obstructed by placing brush in a mudhola therein on his land; but the evidence shows he at once built a new route around the brush for the use of those entitled to the way. But suppose such obstruction to have been unlawful, what bearing can this have on plaintiff’s right to maintain and protect his right of way over the lower road herei involved? There is no appreciable connection between the two roads so as to make the use of the one or obstruction thereof depend on the other; nor if the upper way was made use of by plaintiff, would that prevent him from protecting his rights in the other. Rogerson v. Shepherd, supra; Walton v. Knight, supra; Hoffman v. Shoemaker, 69 W. Va. 233; Mitchell v. Bowman, 74 W. Va. 498" court="W. Va." date_filed="1914-06-16" href="https://app.midpage.ai/document/mitchell-v-bowman-8177543?utm_source=webapp" opinion_id="8177543">74 W. Va. 498; Hawkins v. Conner, 75 W. Va. 220" court="W. Va." date_filed="1914-12-08" href="https://app.midpage.ai/document/hawkins-v-conner-8177637?utm_source=webapp" opinion_id="8177637">75 W. Va. 220, 223, 224.
Our conclusion is to affirm the decree.
Affirmed.