*1 ROBERTSON, Aubrey D. Charles Rob C. B. Robertson
ertson and William Below, Appellants,
Plaintiffs A LUMBER & MANUFAC
B MULLICAN COMPANY, L.P., a Delaware
TURING Appellee.
Partnership, Below, Court
West 22, 2000.
Submitted Feb. April
Decided
Concurring Dissenting Opinion of
Justice Skeen,
Larry Esquire, L. Skeen Skeen, Attorney Virginia, for Ripley, West Appellants. II, Princeton, Winfrey, Esquire,
William S. Attorney Virginia, PER CURIAM: This case is before the Court Charles D. B. Robertson from Robertson and William April Circuit order County, the lower Mercer wherein court, following a concluded that bench *2 Appellee, turn, B Broyles, the A Mullican Lumber conveyed & Manu- Ethel the tract L.P, facturing Company, proved by upon of land existing roadway “clear which the is convincing an Appellants and evidence that to located the without through implication in 1991 consideration. She made no reservation Ethyl Broyles conveyed to the ... right-of-way an easement or to her upon [Appellants] remaining land property which the road- at the time of the con- way Appellants veyance, although existed.” The contend that it was at the time 1) in finding trial court erred:1 her access to her home by implication by existing roadway. created Eth- was across the From 1991 Broyles conveyed she to September el the time until death on her Ethel Appellants Broyles which the continued to travel road- 2) existed; way, according to the timbering pur- easement could be used for Upon Robertson and Gordon Robertson. record, death, poses. Dunn, Based a review the Ethel Broyles her devised Fortner, parties’ arguments, briefs as well as and Caldwell tracts to the three husband, all other matters submitted before this sisters of her late Bernard. The Court, affirm subsequently conveyed we the lower court’s decision. sisters land to
Appellee’s predecessor in immediate title.
I. FACTS controversy
At the center of this anis old II. DISCUSSION (also private roadway referred to as the “ex- by Appellants The issues raised roadway”) isting on located focus on whether the trial court’s factual property parallel Appellee’s property. findings that an easement was created public This is used to a access road. through implication at time of the con Additionally, existing roadway was used veyance property Appellants of-the timbering in the Appellants 1950’s. The and that the easement could used for existing roadway also used the for timbering timbering purposes supported by were purposes after the instant lawsuit was filed. evidence. The deed demonstrates that there express predecessor The common was no most recent an easement by Broyles. Appellants title to both Ethel Appellants The assert Broyles. Broyles support Ap was Ethel that the evidence not her does husband, Bernard, pellee’s right acquired original through their to use such road Morgan Appellants tract land from Bessie Dunn easement. (referred tract”).2 support maintain that the to as “the Dunn evidence does not on the trial court’s that an There was located the Dunn intended usage tract to access the of the When the tract, acquired Broyles’ they Appellee argues the Dunn con trary. prop- that crossed the erty owned M.O. This Court has held that Broyles’ brother. The could not identify way any Broyles reviewing findings other that Ethel challenges [i]n property. had to her and conclusions of the circuit court made M.O. Robertson died and two-pronged devised the after a bench deferen- containing tract land applied. to Ethel tial standard of review is Broyles. disposition order and the are Actually, alleged assigned by remaining assignments the five errors of error have been com- Appellant Appellant are redundant. The bined into the two above-mentioned errors which error, argue assigned even not the last which is will be addressed this Court. deemed this Court to be waived. See Bryant, 168 Addair v. Broyles acquired Subsequently, the two addi- (1981). (“Assignments are error that tional tracts known as the Fortner and the Cald- argued in the briefs on be deemed well tracts. waived.”). Consequently, this Court to be Broyles impliedly that Ethel reserved under an abuse discretion reviewed Appellants’ property at standard, across the underlying court’s and the circuit conveyed to them. reviewed under factual are supported trial court’s Questions The evidence also *3 ruling that could be subject novo law are to a de review. Appellee’s timbering for the used 1, Citizen, v. Syl. Public Inc. First Nat'l Pt. 329, Fairmont, 480 in 198 W.Va.
Bank Finally, significant it is that note (1996). that “the consists lower court ruled roadway, only of this which cannot be ex- Further, we that have stated panded trial or widened.” [ajppellate oversight is defer- therefore right opined that “has no court ential, and we the trial court’s find- review modify an' easement or create trial, includ- ings following of fact a bench [Appellants’] unreasonable burden on the ... findings, ing mixed under fact/law Accordingly, Appel- estate.” if the servient trial If the implied limitations of the lee abuses these findings or applies makes no court if Appellee “create[s] or standard, however, wrong legal no defer- burden” on the unreasonable application. attaches to such an Of ence property, nothing precludes course, fact if the trial court’s of seeking damages clearly correct are not erroneous legal applied, hereby its rul- standard is decision of the circuit court is law. ing will be as of affirmed matter affirmed. Fox, 657, 662, 458
Phillips v. 193 W.Va. Affirmed. (footnote omitted). (1995) 327, 332 S.E.2d McGRAW, Justice, concurring part, syllabus point In two of v. Stuart dissenting part: Corp., Washington Realty 141 Lake W.Va. (Filed (1956), 20, 2000) this ad Oct. requirements implied for an res dressed the majority agree with that the circuit I when that: ervation of we held did not err in that an easement court general rule is there is by impli- ordinary purposes of an 1991; however, no factual cation in there is conveys part of land over an owner his supporting low- legal basis whatsoever or privi has he exercised a which timbering oper- court’s determination er he lege for the benefit of land which scope of that ease- ations were within the unless burden retains ment. apparent, conveyed is nec continuous and premise Importantly, we work enjoyment of essary for the the land re of law not favor the creation that “the tained. reservation,” grant or easements Stickley, Myers 180 W.Va. See Washington Realty Corp., 141 v. Lake Stuart (1988). 124, 375 S.E.2d (1956), case, Au- that “the use of land under an instant sever- indi- must when the brey be Robertson Gordon Robertson occurs,” ownership at Id ance cated Generally, “[t]he at 899. extent Broyles was her means S.E.2d implication is determine from her home which at the existed also indicated that circumstances The evidence gave conveyance and rise Broyles’ use of was as neces- time although also implication,” con- consideration sary, apparent and continuous after as facts veyed parcel given “to such uses which within the reason- Appellants as it was circumstances show were existed to the Thus, parties” time conveyance. contemplation of at the trial court able before the determining clearly 25 Am.Jur.2d Easements severance. erroneous (1996) § (emphasis at 663-64 Licenses
added). Here, there is tim- no evidence that
bering ongoing severance parties anticipated or that the future thus,
logging; the fact that took
place in the 1960s is irrelevant. I
Consequently, join majority do not support in that there is the record
for the circuit court’s tim- determination that operations scope
bering were within the *4 in this case. MINSHALL,
Melanie L. Plaintiff
Below, Appellant,
HEALTH CARE & RETIREMENT AMERICA,
CORPORATION OF Below, Appellee. Court of March
Submitted 2000.
Decided June 2000.
Dissenting Opinion of Justice July
Starcher
Dissenting Opinion of Justice