150 Va. 231 | Va. | 1928
delivered the opinion of the court.
This is an appeal from a decree of the Circuit Court of Accomac county in the suit of James H. East, Maggie L. East, his wife, Herman L. East, J. Howard East and Susie E. Robins, complainants, against J. Edward Pryor and Dolly V. Pryor, his wife, J. Harold Pryor, Lacy Vincent and Eliza Vincent, his wife, respondents, perpetuating an injunction to prevent encroachment on complainants’ easement appurtenant to their estate “Wesley” over the estate of respondents.
Respondents, while conceding that the roadway in question was used, as alleged, by Captain Crockett and his grantor, aver in their answer that complainants can build a road over their own land at a reasonable cost, and that such roadway would enhance the Value of their land.
The preponderance of the proof on this question is to the effect that it would cost between $1,200.00 and
The chancellor, upon this question of fact, held with the complainants and it is well settled that where the court below has, upon the evidence, determined a question of fact, the appellate tribunal will not overturn its decision, except where there is manifest error or misconduct. Womack v. Tankersley, 78 Va. 242.
As to the question of easement, in Washburn on Easements, chapter 1, pages 88-9, it is said: “Although it might perhaps be difficult to embody the leading doctrines of the foregoing cases into any general proposition, it would seem that, in ease of a division of an estate, consisting of two or more heritages, whether an easement or convenience which may have been used in favor of one, in or over the other, by the common owner of both, shall become attached to the one or charged upon the other, in the hands of separate owners, by a grant of one or both of those parts, or upon a partition thereof, must depend, where there are no words limiting ^or defining what is intended to be embraced in such deed or partition, upon whether such easement is necessary for the reasonable enjoyment of the part of such heritage as claims it as an appurtenance. It must be reasonably necessary to the enjoyment of the part which claims it, and where that is not the case, it requires descriptive words of grant or reservation in the deed to create an easement in favor of one part of a heritage over another.”
In Sanderlin v. Baxter, 76 Va. 299, 44 Am. St. Rep. 165, the facts were that the owner of two adjoining tracts of land, one of which was higher than the other, drained the former through the latter. Upon the two
In Minor on Real Property, page 127, it is said that to constitute an easement the way must be “(1) apparent, (2) continuous, and (3) reasonably necessary to the enjoyment of the dominant tract.” Citing Scott v. Beutel, 23 Gratt. (64 Va.) 6; Hardy v. McCullough, 23 Gratt. (64 Va.) 258; Sanderlin v. Baxter, 76 Va. 304, 44 Am. St. Rep. 165: See also Smith v. Virginia Iron, Coal & Coke Co., 143 Va. 159, 129 S. E. 274.
In the instant ease, it is clearly established that the easement was apparent and continuous, and, we think from the proof adduced, that it is reasonably necessary to the enjoyment of the dominant estate. The fact that complainants, if the roadway is closed, would have to expend probably the sum of two thousand dollars to build a roadway through practically a swamp, is of itself sufficient evidence of reasonable necessity to lead us to the conclusion that the decree of the circuit court is plainly right and should be affirmed.
Affirmed.