143 Va. 159 | Va. | 1925
delivered the opinion Of the court.
Morgan T. Smith complains of a decree refusing to enjoin and restrain the Virginia Iron, Coal and Coke-Company and M. C. Jackson from hauling over and. across his certain tract of land situate on the open fork of McClure river, at the mouth of Birch Spring fork, in Dickenson county, Virginia.
Morgan T. Smith, and Virginia Iron, Coal and Coke Company and M. C. Jackson will be referred to as complainant and defendants, respectively, the same-being their positions in the lower court.
It is agreed that all the lands involved in this controversy, which are owned by the complainant and the defendant, Virginia Iron, Coal and Coke Company, respectively, that lie south of Open Fork creek and west of Birch Spring Fork creek were originally parts-of a larger tract of land owned by Moses L. McCoy;, and that all of the lands which lie south of Open Fork creek and east of Birch Spring Fork creek were origi—
The tracts of land involved, belonging to Virginia Iron, Coal and Coke Company, derived from Moses L. McCoy, are as follows: Anna M. Meade 8.109 acre tract; J. A. Odie 12.966 acre tract; and W. C. Edwards 20.966 acre tract; and the Nancy E. Hay 118.864 acre tract. The only tract involved, owned by Morgan T. Smith, which came by mesne conveyance from Moses L. McCoy, is the Martha A. Turner twenty-five acre tract.
The tracts involved here, belonging to Virginia Iron, Coal and Coke Company, the titles to which originate in William Kilgore, are: The Anna Meade 14.-389 acre tract; the C. K. Counts 44.082 acre tract; and the Frank A. Austin 17.068 acre tract. The only tract here involved, owned by Morgan T. Smith, the title to which can be traced'to William Kilgore, is the James T. Edwards and Elihu Kilgore twenty-five acre tract.
M. C. Jackson had entered into a contract with' Virginia Iron, Coal and Coke Company to manufacture and remove the timber from its lands on the waters of Birch Spring Fork of the Open Fork of McClure creek (river) and deliver the lumber to the company at Tom’s creek in Wise county, Virginia. Jackson moved his mill on the company’s land and began the manufacture and delivery of the lumber accordingly. In order to reach the public road at the mouth of Birch Spring Fork, from the mill which was located near the head of that creek, it was necessary to cross the surface tract of land owned by Smith, under which the company owns the coal. The bill prayed for an injunction, to restrain the defendants from hauling
The answer of the appellees, among other things, alleges that complainants’ land “lies partly along and in Birch Spring Fork creek; that the land on either side is very steep and cannot be used as a road, without the expenditure of large sums of money, except that the bed of said creek, and the ground on both sides thereof and immediately adjoining thereto, is suitable for a roadway, and has been so used for such for many years last past as hereafter stated;” that the portion of appellants’ land “lying to the west of Birch Spring Fork creek was formerly owned by Moses L. McCoy, and comprised a part of a tract of 600 acres owned by him, the remainder of which tract lies on said Birch Spring Fork creek;” that the Virginia Iron, Coal and Coke Company is the owner of about 300 acres of the surface of the said McCoy tract which lies above that portion of said tract owned by the complainant; that “there is no other means of ingress and egress or access to that portion of the said lands owned by the Virginia Iron, Coal and Coke Company which lies on the water shed of Birch Spring Fork creek, except by means of the road above referred to along Birch Spring Fork creek, through and over that portion of the land now owned by M. T. Smith; that this road across, over and through that portion of the Moses L. McCoy tract now owned by M. T. Smith has been used as a roadway for more than twenty-one years;” that M. T. Smith (appellant) had laid out the proposed town of “Haysville” on his land and designated a street thereon as “Birch street” and that Smith is now estopped to deny the dedication of this street, or to object to the use thereof by-appellees; that appellee, the coal company, is also the owner of about seventy-six
It is agreed that the only issue in the ease is the right of the defendant, Virginia Iron, Coal and Coke Company, to the use of a wagon way across complainant’s lands.
As there are two common sources of title, McCoy and Kilgore, appellees might claim two rights of way, but they are claiming only one. The way which is being used leads up Birch Spring Fork creek and has been fenced on both sides its entire length, through the land now owned by the complainant, for about thirty-four years.
The appellees claim that they are entitled to this right of way, (1) by prescription; (2) by necessity, and (3) by the right to use the proposed street called “Birch street.”
If appellees have the legal right to use the way upon any one of these grounds, the injunction was properly refused.
We will consider first the defendant’s claim to a right of way by necessity. This right must depend upon the law as applied to the facts in the case.
In order to establish such a right of way, it is incumbent upon the owner of the dominant estate to show that his land and that of the owner of the servient estate once belonged to the same person, which is admitted in this case.
The “necessity” as applied to implied grants of rights of way is not a physical or an absolute necessity but a reasonable and practicable necessity.
In Minor on Real Property, vol. 1, see. 102, page 124, the law is stated thus: “Easements acquired by implied grant. The foundation principle upon which rests the creation of easements by implied grant is to be found in the maxim: ‘Cuicunque aliquis quid concedit, concederé videtur et id sine quo res ipsa non potuit,’ meaning that a grant of land or other property carries with it, by implication, as incident thereto, everything reasonably necessary to the enjoyment of the thing granted, which it is in the power of the grantor to bestow.”
At section 103, page 124, the same author also says:
“Easements by necessity. — Easements are sometimes implied upon a grant of land, because without them the property granted could not be used by the grantee, or could not be used for the purpose for which it was*165 granted. Such easements are said to arise by necessity, that is, by necessary inference, since otherwise the whole grant would be nugatory. * * *
“But the most usual and important of these easements is the right of way by necessity, which arises where one conveys to another land which is either entirely surrounded by the land of the grantor, or else is bordered in part by the land of a stranger and in part by the lands of the grantor. In either case the grantee of the land, even in the absence of express stipulations, has a way by necessity over the grantor’s land, since otherwise the land granted to him would be unapproachable and useless. The grantor cannot take advantage of the absence of stipulations thus to derogate from his own grant.”
And further it is said:
“It is a general rule governing ways by necessity, that in order to establish such a way it is essential that the alleged dominant and servient tenements should be proved at some time in the past to have belonged to the same person.”
. In 2 Ency. Digest Va. & W. Va. Rep., Cum. Supp., p. 677, we find this:
“Meaning of necessity. — The rule of a strict necessity applicable to an implied reservation or grant of an easement is not limited to one of absolute necessity, but to reasonable necessity as distinguished from mere convenience.”
The West Virginia court, in Miller v. Skaggs, 79 W. Va. 645, 91 S. E. 536, Ann. Cas. 1918 D, 929, held: “In the textbooks and decided cases we are told that the easement to be passed or be retained by implication only must be necessary. There are different kinds of necessity. A thing may be necessary in the physical sense or in a practical or legal sense.”
In Minor on Beal Property, section 104, the author says: “The conditions under which the separation of the ownership occurs is immaterial. There may be successive transfers of the respective tracts, or the transfers may be simultaneous, as where the two are transferred to different persons by one devise, or one decree of partition, or of foreclosure.”
It is true, as contended, that Virginia Iron, Coal and Coke Company has acquired other adjacent lands which touch the Tom’s Creek-Dante road on Sandy Bidge mountain, but the topography of the country is such that it is not reasonably possible for the company to construct a wagon road from that road to its lands on the Birch Spring Fork. There has never been
It appears from the evidence, without contradiction, that the construction of a wagon road up the mountain to ■ the Sandy Ridge road would be wholly impracticable, as the cost of construction would be more than the value of the timber to be hauled and the land on which it is located. Under such circumstances it cannot be said that the necessity for the use of the right of way across the lands of the complainant has ceased to exist.
The conclusion we have reached makes it unnecessary to consider the defendants’ right to a way by prescription, or the right to use Birch street, f. The court did not err in refusing to grant the injunction prayed for, and the decree complained of will be affirmed.
Affirmed,