Kuhn v. Robin L. Ravenscroft Living Trust

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

James Scott Kuhn,

Petitioner, Defendant below,

FILED

vs.) No. 19-0805 (Mineral County 18-C-45) November 18, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

Robin L. Ravenscroft Living Trust, SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Respondent, Plaintiff below,

and

Robin L. Ravenscroft and Norman L. Ravenscroft,

Respondents, Third Party Defendants Below.

MEMORANDUM DECISION

The petitioner, James Scott Kuhn, appeals the Circuit Court of Mineral County’s August

16, 2019, order denying his motion to alter or amend the court’s June 26, 2019, “Trial Order” in a

declaratory judgment action. Mr. Kuhn argues that the circuit court erroneously concluded that he

does not possess an express easement in the form of a right-of-way running from the south-west

corner of his lot, across property owned by the respondent Robin L. Ravenscroft Living Trust

(“Trust”), to U.S. Route 50. The Trust, along with its trustees Norman and Robin Ravenscroft

(collectively referred to as “the respondents” or “the Ravenscrofts”), respond in support of the

circuit court’s orders. 1

After considering the parties’ written and oral arguments, as well as the appendix record

on appeal and the applicable law, this Court concludes that the circuit court erred when rejecting

Mr. Kuhn’s claim of an express easement across the Ravenscrofts’ property. Because there are no

new issues of law presented in this matter, we conclude that this case satisfies the “limited

circumstances” requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure for

reversal in a memorandum decision.

I. Factual and Procedural History

In 1977, Vaughn and Bertha Amtower conveyed approximately 36.90 acres of land (the

“parent tract”) located in the New Creek District of Mineral County to Ellis and Linda Doll. The

Dolls planned to develop a subdivision named “Claysville Heights” on this property. Surveyor

1

Mr. Kuhn is represented by Luca D. DiPiero, Esq., and David R. Collins, Esq. The

Ravenscrofts are represented by Jason R. Sites, Esq.

1

David Vanscoy, P.E., surveyed a portion of the parent tract into six separate lots and prepared a

“Plat of Subdivision of Claysville Heights.” However, this master plat was never recorded. 2

The Dolls sold three of the lots—identified from west to east as Lot 6, Lot 5, and Lot 3,

each approximately two acres in size—to three different buyers. The Deed for each of these three

lots was accompanied by a Plat of Survey that was recorded with the respective Deed. Each Deed

describes, and each Plat depicts, a thirty-foot wide right-of-way along the adjoining northern

property lines of the three lots, running in an eastward direction (referred to herein as the “northern

right-of-way”). The Plat for Lot 3 shows that the northern right-of-way then turns to the south-east

so that it can eventually connect to Route 50. At some point in time, a rough road was constructed

on this northern right-of-way connecting the northern side of the three sold lots to Route 50

(referred to as the “back road”).

The Dolls conveyed Lot 6 to Daniel and Patricia Shrout by Deed dated April 29, 1986.

This Deed, along with a Plat for Lot 6, is recorded at Mineral County Deed Book 243, Page 373.

Notably, the Shrouts’ Deed and Plat also describe another thirty-foot wide right-of-way in a

different location (referred to herein as the “southern right-of-way”). This Deed defines the

property that was being conveyed to the Shrouts by referencing the location of both rights-of-way:

Beginning at a point in centerline of a 30’ right-of-way leading to

U.S. 50, said point also being located S74⁰52’30”W, 15.00’ from a

steel pin in line of Lot 4; thence, with line of Lot 7, N5⁰15’10”W,

391.14’ to a point in road, witnessed by rebar set 15’ from

centerline; thence with centerline of another 30’ right-of-way

leading to U.S. 50, N80⁰19’15”E, 229.87’ to a point in centerline of

right-of-way; thence, with line of Lot 5, S5⁰39’13”E, 368.56’ to a

steel pin in line of Lot 4; thence, with line of Lot 4, S74⁰52’30”W,

220.25’ to a steel pin set 15’ from centerline of said right-of-way;

thence, S74⁰52’30”W, 15.00’ to BEGINNING and containing 2.01

acres more or less as more fully shown on Plat of Survey of Lot 6 of

Claysville Heights as surveyed by David G. Vanscoy, P.E. No. 6649

attached hereto as part hereof.

Note: Right-of-way shown above is reserved by grantor for use of

all property owners along roadway and any others entitled to use

said right-of-way.

The Plat depicts the southern right-of-way as originating at the south-west corner of Lot 6 and

running southward along the western border of another lot in the subdivision, Lot 4. The existence

of this southern right-of-way, and its thirty-foot width, are stated both on the Plat and in the

language of the Deed. The Plat shows and describes the beginning point of the right-of-way (at the

southwest corner of Lot 6), and shows the course and width of the right-of-way (heading south

along the western boundary of Lot 4, fifteen feet on either side of Lot 4’s boundary line), but does

2

Mr. Vanscoy testified that this land was subdivided before a planning commission was

established in the area.

2

not illustrate the endpoint of the right-of-way. However, language in the Deed specifies that the

endpoint is Route 50.

The Shrouts’ Deed further provides that

[t]he roads and rights of way constructed and to be constructed by

the Grantors shall be for the use and benefit of all owners of property

whose source of title is derived from the Grantors, and the Grantors

shall maintain said roads and rights of way until such time as the

Grantors have conveyed four (4) parcels of land in this subdivision.

The Deed goes on to state that after four lots are sold, a property owners’ association would be

formed and take over responsibility for the roads. However, a fourth lot was never conveyed, and

no property owners’ association was ever formed.

After conveying the three lots, the Dolls filed a Chapter 7 bankruptcy. The subdivision was

never finished. When the bankruptcy case was filed, no houses had been built and no road had

been constructed over the southern right-of-way. The bankruptcy trustee eventually sold 28.38

acres of the residue from the parent tract to the respondents Norman and Robin Ravenscroft, who

subsequently deeded the property to the respondent Robin L. Ravenscroft Living Trust. The

Ravenscrofts’ deed expressly states that the real estate is “subject to all reservations, exceptions

and easements of record in the chain of title, and includes all appurtenances and privileges passed

through prior deeds” including being “subject to those rights of way set forth in . . . Deed Book

243, page 373[,]” which is the Shrouts’ Deed for Lot 6. The Ravenscrofts have built a home on

their property, including spending over $70,000 to construct a long, blacktopped driveway leading

from Route 50 up to their house.

Michael and Elizabeth Fitzgerald purchased the unimproved Lots 3, 5, and 6 in 2015. On

March 28, 2018, the Fitzgeralds sold the three lots to Mr. Kuhn, the petitioner herein. Mr. Kuhn

has testified that he intends to timber his three lots and build a home, but the trucks and large

equipment that he needs to improve his property cannot traverse the back road because it is steep,

has sharp curves, and is encroached upon by neighboring structures.

Mr. Kuhn contacted the Ravenscrofts and asserted his right to use the southern right-of-

way. According to Mr. Kuhn, the southern right-of-way runs from the southwest corner of his Lot

6 and coincides with the bottom one-third to one-half of the Ravenscrofts’ driveway to reach Route

50. The Ravenscrofts objected to Mr. Kuhn’s use of their property, particularly since his heavy

equipment would damage the blacktop on their driveway and because Mr. Kuhn stated his

intention of removing trees from their property (presumably to widen the right-of-way to the full

thirty feet). According to the Ravenscrofts, Mr. Kuhn has refused to pay for any damages that he

might cause.

On August 16, 2018, the Ravenscrofts filed a complaint in circuit court arguing that Mr.

Kuhn has no easements of any kind over their property. They sought a declaration of their rights

to the property and a permanent injunction to stop Mr. Kuhn from using their property. Mr. Kuhn

answered the complaint asserting that he had acquired the southern easement by virtue of the Dolls’

3

Deed to the Shrouts. Mr. Kuhn also filed a counterclaim for damages that he allegedly incurred

due to being deprived of the use of the right-of-way.

The circuit court received testimony and documentary evidence at a temporary injunction

hearing and a bench trial. The parties testified, and Mr. Kuhn presented testimony from the original

surveyor, Mr. Vanscoy, who was qualified as an expert in the field of surveying. Mr. Vanscoy

opined that there is a right-of-way running from the south-west corner of Lot 6 to Route 50.

Notably, Mr. Vanscoy testified that, although the Shrouts’ Deed and Plat for Lot 6 did not specify

a metes and bounds description for the exact endpoint of the southern right-of-way, the endpoint

is known because the Dolls owned only a thirty-foot frontage on Route 50 on this side of the parent

tract. Because the southern right-of-way is thirty-feet wide, the only possible ending point is this

thirty-foot frontage where the Ravenscrofts’ driveway is situate. Mr. Vanscoy testified that Mr.

Doll specifically purchased this thirty-foot frontage from Mr. Amtower so that he could bring this

right-of-way down to Route 50. 3 Mr. Vanscoy also testified that his surveying crew found a pin at

the southwest corner of Lot 6, another pin fifteen feet from the corner of Lot 4 to indicate the

location of the right-of-way, and a pin marking one corner of the frontage on Route 50. These pins

were laid in the 1980’s when he surveyed the subdivision.

Mr. Kuhn also presented testimony from his predecessor-in-title, Mr. Fitzgerald. Mr.

Fitzgerald testified to a conversation he had with Mr. Ravenscroft in which Mr. Ravenscroft

acknowledged that there was a right-of-way leading south across his property to Route 50. In

response, the Ravenscrofts offered an affidavit from Mr. Fitzgerald’s predecessor-in-title, Mr.

Shrout; this affidavit was ultimately admitted into evidence over Mr. Kuhn’s objection. In the

affidavit, Mr. Shrout denied that his deed gave him the right to use the Ravenscrofts’ driveway

and denied that he transferred any rights-of-way when he sold Lot 6.

The Ravencrofts argued that because the subdivision was never constructed and the master

plat was never recorded, there was never any private dedication of roadways for the use of the

property owners. Because the Shrouts’ Deed spoke of the roads in the subdivision being for the

use and benefit of the property owners, but there was never any private dedication of the roads,

they argue that the Shrouts’ Deed did not create any rights-of-way. They also argued that it is

impossible to ascertain the specific location of any purported southern easement from a review of

recorded documents. The Ravenscrofts asserted that there was another road in a different location

on the property in the 1970’s, and that the intent of the Deed for Lot 6 could have been for the

southern right-of-way to be located on that road.

On cross-examination, Mr. Vanscoy recalled that there was an existing road in a different

location in the 1970’s. However, he recalled that the road originated on Route 50 at a trailer park

beside the thirty-foot frontage that Mr. Doll purchased in fee simple. Mr. Vanscoy explained that

Mr. Doll leased, but did not own, the trailer park property, thus he could not have deeded a right-

of-way across the trailer park property. Mr. Vanscoy recalled that the existing road went from the

trailer park and up to some wells on the parent tract, and it was only accessible with a four-wheel

drive vehicle.

3

One of the briefs suggests that, in addition to being the surveyor for the subdivision, Mr.

Vanscoy is also Mr. Doll’s brother-in-law.

4

After considering the evidence, the circuit court concluded that Mr. Kuhn does not possess

any express easements over the Ravencrofts’ property. The circuit court found that although a

southern easement is shown on the Plat to Lot 6 and is mentioned in the Deed’s description, “no

actual road was ever constructed or came into existence” and “[t]here is nothing of record to show

the location of the easement where it extended from Lot 6 to US Route 50.” The circuit court found

that Mr. Kuhn merely “assumed” that a right-of-way entered Route 50 at the location of the

Ravencrofts’ driveway, but there was another roadway in existence at the time of severance while

the driveway had not even been built at that time. Furthermore, the circuit court concluded that

although the developer may have intended to construct an easement leading from Lot 6 to Route

50, this was never done and there was no master plat recorded. The circuit court ruled that Mr.

Kuhn’s property is not landlocked because he has an implied easement by necessity over the back

road. Finally, the circuit court found that Mr. Kuhn failed to satisfy his burden of proof with respect

to his counterclaim for damages. The circuit court’s rulings were set forth in a bench trial order

entered on June 26, 2019.

Mr. Kuhn filed a motion to alter or amend the judgement, which the circuit court refused

on August 16, 2019. In this August order, the circuit court also declined to enter a permanent

injunction, reasoning that Mr. Kuhn was fully aware that he could not trespass upon the

Ravenscrofts’ property and an injunction was unnecessary. Mr. Kuhn now appeals the adverse

rulings in the June 26 and August 16, 2019, orders.

II. Standard of Review

Mr. Kuhn appeals from the circuit court’s order denying his motion to alter or amend

judgment. “The standard of review applicable to an appeal from a motion to alter or amend a

judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the

underlying judgment upon which the motion is based and from which the appeal to this Court is

filed.” Syl. Pt. 1, Wickland v. American Travellers Life Insur. Co., 204 W. Va. 430, 513 S.E.2d

657 (1998). The underlying judgment was an order entered after a bench trial, to which we apply

the following standard of review:

In reviewing challenges to the findings and conclusions of

the circuit court made after a bench trial, a two-pronged deferential

standard of review is applied. The final order and the ultimate

disposition are reviewed under an abuse of discretion standard, and

the circuit court’s underlying factual findings are reviewed under a

clearly erroneous standard. Questions of law are subject to a de novo

review.

Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538

(1996). With this in mind, we consider the parties’ arguments.

5

III. Discussion

On appeal, Mr. Kuhn contends that he has an express easement over the southern right-of-

way by virtue of the 1986 Deed from the Dolls conveying Lot 6 to the Shrouts. 4 He argues that in

this Deed, the Dolls also conveyed the southern right-of-way over the residuary parent tract, and

that as the successor-in-title to the Shrouts, he now has the right to this easement. The Ravenscrofts

disagree with all of Mr. Kuhn’s arguments. The Ravenscrofts argue that no rights-of-way were

conveyed or dedicated because the subdivision never came into existence, and they argue that the

purported southern right-of-way is not described with sufficient specificity in the Shrouts’ Deed

or in any document that is of record.

Our task in this appeal is to consider the meaning of the Shrouts’ Deed. When confronted

with the question of whether a legal instrument has conveyed a property right, a court’s job “is to

ascertain the true intent of the parties as expressed by them in the deed, lease or other written

instrument under consideration.” Sally-Mike Properties v. Yokum, 175 W. Va. 296, 300, 332

S.E.2d 597, 600 (1985) (quoting Davis v. Hardman, 148 W. Va. 82, 88-89, 133 S.E.2d 77, 81

(1963)). “The language of the instrument itself, and not surrounding circumstances, is the first and

foremost evidence of the parties[’] intent. Resort to rules of construction and aids to interpretation,

including extrinsic evidence, is proper where the language of an instrument is ambiguous and

subject to more than one meaning.” Sally-Mike Properties, 175 W. Va. at 300, 332 S.E.2d at 601.

In this case, a review of the Shrouts’ Deed and Plat plainly evidences the intent to create

a right-of-way leading from the southwest corner of Lot 6, heading south to Route 50, for the use

and benefit of all the property owners. This right-of-way is detailed in the Deed language and is

illustrated on the Plat. The Deed provides: “Note: Right-of-way shown above is reserved by

grantor for use of all property owners along roadway and any others entitled to use said right-of-

way” and “[t]he roads and rights of way constructed and to be constructed by the Grantors shall

be for the use and benefit of all owners of property whose source of title is derived from the

Grantors[.]”As such, the southern right-of-way was created by express reservation in the Deed.

The Dolls obviously wanted this point of ingress and egress to be available to the property owners;

4

Mr. Kuhn’s assignments of error are that the circuit court (1) erred when concluding that

he does not have an express easement over the southern right-of-way; (2) misapplied the unity

doctrine; (3) misapplied the law by requiring that an express right-of-way be “opened” in order to

exist; (4) erred in concluding that there is no southern right-of-way, despite finding that the Plat

for Lot 6 illustrated an easement and the original developer may have intended to construct an

easement; (5) disregarded the weight of the evidence when finding that the southern right-of-way

did not enter Route 50 at the location of the Ravenscrofts’ driveway; (6) erred in denying an award

of damages on Mr. Kuhn’s counterclaim; and (7) erred by entering two different orders from the

temporary injunction hearing. Because many of these assignments of error overlap, they will be

discussed together. However, we reject the last assignment of error out of hand. The circuit court

inadvertently entered temporary injunction orders that were submitted by both sides, but the court

quickly corrected this mistake at the beginning of the bench trial and absolutely no prejudice

resulted.

6

indeed, if they had not created this right-of-way, Lot 4 would have been landlocked. 5 Although

the Dolls did not construct a road on the southern right-of-way before they went bankrupt, they

nonetheless carved out and conveyed the right-of-way. As a current property owner whose source

of title is derived from the grantors, Mr. Kuhn has the right to use and benefit from the southern

right-of-way.

When rejecting Mr. Kuhn’s claim, the circuit court emphasized that no road had ever been

constructed on the southern right-of-way. However, this is an express easement set forth in the

Shrouts’ Deed, and an express easement is not extinguished by non-use:

[T]here is law in this State that an existing right-of-way is not

defeated by mere non-user [sic]. Wooldridge v. Coughlin, 46 W. Va.

345, 33 S.E. 233 (1899). Additionally, as late as 1988, the Court

indicated that while easements created equitably may be

extinguished by acts including abandonment, easements by grant,

such as the easement claimed in the present case, may not. See note

5 of Lyons v. Lyons, 179 W. Va. 712, 371 S.E.2d 640 (1988), which

cites Moyer v. Martin, 101 W. Va. 19, 131 S.E. 859 (1926).

Orlandi v. Miller, 192 W. Va. 144, 149, 451 S.E.2d 445, 450 (1994). Similarly,

[w]here a decree of partition awards to the partitioners a right

of way for ingress and egress over and through the land as

partitioned, by the most practicable way to the public road, the mere

nonuse or intermittent use of a way through the lands partitioned by

one or more of the partitioners will not extinguish the easement

granted by the decree; nor will the use by one or more of the

partitioners of another way of ingress and egress over abutting lands

owned by a stranger to the partition suit be an election to use that

route to the extinguishment of the way decreed.

Syl. Pt. 1, Moyer v. Martin, 101 W. Va. 19, 131 S.E. 859 (1926). “An easement by grant is radically

different from an easement by necessity. And it is universally held that mere nonuser [sic] of an

easement by grant, however long, will not extinguish the right, unless otherwise provided by

statute or by provision in the grant itself.” Id. at 24, 131 S.E. at 861 (citations omitted). C.f. Strahin

v. Lantz, 193 W. Va. 285, 288, 456 S.E.2d 12, 15 (1995) (recognizing that easement by grant is

not abandoned by non-use, but holding prescriptive easement can be abandoned).

Next, we turn to the question of whether the location of the southern right-of-way was set

forth in the Shrouts’ Deed and Plat with sufficient certainty.

5

The three recorded plats for Lots 3, 5, and 6 show the location of the planned Lot 4, and

it does not touch the northern right-of-way/back road. Lot 4 would have been landlocked if the

Dolls had not expressly reserved the southern right-of-way for the benefit of all property owners.

7

“A deed granting to a . . . [grantee] land for its right of way

must contain on its face a description of the land in itself certain, so

as to be identified, or if not in itself so certain, it must give such

description as, with the aid of evidence outside the deed, not

contradicting it, will identify and locate the land, otherwise the deed

is void for uncertainty.” Syllabus Point 1, Hoard v. Railroad Co., 59

W. Va. 91, 53 S.E. 278 (1906).

Syl. Pt. 2, Highway Prop. v. Dollar Sav. Bank, 189 W. Va. 301, 431 S.E.2d 95 (1993). However,

“[n]o part of a deed should be declared void for uncertainty if it is possible, by any reasonable rule

of construction, to ascertain from the description, aided by extrinsic evidence, the property

intended to be affected.” Sally-Mike Properties, 175 W. Va. at 298, 332 S.E.2d at 598, syl. pt. 3. 6

The beginning point of the southern right-of-way is specified in the Shrouts’ Deed in a

plain and unambiguous manner. Indeed, the Deed specifies the coordinates of this point as “being

located S74⁰52’30”W, 15.00’ from a steel pin in line of Lot 4.” The starting point for the right-of-

way is also the south-west corner of Lot 6. Mr. Vanscoy’s crew located the pin in the line of Lot

4 when preparing for this bench trial. The width of the right-of-way is also clearly stated in both

the Deed and on the Plat as being thirty feet wide. The Plat depicts that fifteen feet of the right-of-

way lies on one side of the western boundary line for the proposed Lot 4, while the other fifteen

feet lies on the other side of this boundary line. Moreover, the course direction for the right-of-

way is also plainly and unambiguously set forth. The Deed specifies that the right-of-way runs to

Route 50, and the Plat shows the right-of-way heading south along the western boundary of Lot 4

toward Route 50 (Lot 4 sits to the south of Lot 6).

The only issue that is disputed with regard to the location of the southern right-of-way is

its specific ending point along Route 50. Mr. Kuhn contends that this ending point is the location

of the Ravenscrofts’ driveway. The Ravenscrofts argue, and the circuit court found, that the ending

point could have been intended to be somewhere else along Route 50—possibly the location of

the existing road through the trailer park. To address this issue, we must turn to extrinsic evidence.

See, e.g., Sally-Mike Properties, 175 W. Va. at 298, 332 S.E.2d at 598, syl. pt. 3 (“No part of a

deed should be declared void for uncertainty if it is possible, by any reasonable rule of construction,

to ascertain from the description, aided by extrinsic evidence, the property intended to be affected.”

(emphasis added)).

Critically, the surveyor, Mr. Vanscoy, testified that the only possible ending point for the

southern right-of-way is the thirty-foot frontage that Mr. Doll owned along Route 50, which is also

the location of the Ravenscrofts’ driveway. The Doll’s parent tract only included this thirty-foot

6

We observe that there is now a statute, West Virginia Code § 36-3-5a (2013), requiring a

deed or other instrument granting or reserving an easement or right-of-way to include a specific

description of the right-of-way. If the instrument does not comply with the statute, the clerk of the

county commission is not permitted to accept the document for recordation. Id. at § 36-3-5a(d).

However, this statute was first enacted in 2003, many years after the 1986 Deed to the Shrouts

where this express right-of-way was created, and is thus inapplicable to this case.

8

frontage. Because this is a thirty-foot right-of-way, the only place that the Dolls could have legally

conveyed the right-of-way is the location where the Ravenscrofts’ driveway now joins Route 50.

Mr. Vanscoy rejected the notion that the trailer park road was the intended location of the right-

of-way, and we agree inasmuch as Mr. Vanscoy’s testimony established that Mr. Doll did not own

the trailer park property in fee simple.

Although we resort to evidence extrinsic to the Shrouts’ Deed to decide this one issue, there

is nothing about this evidence that the Ravenscrofts would not, or should not, have known. They

should have been on notice of the right-of-way inasmuch as their deed was expressly “subject to

all reservations, exceptions and easements of record in the chain of title, including all

appurtenances and privileges passed through prior deeds” including being “subject to those rights

of way set forth in . . . Deed Book 243, page 373[,]” which is the Shrouts’ Deed. Mr. Fitzgerald’s

trial testimony confirmed that Mr. Ravenscroft had actual knowledge of the presence of the

southern right-of-way. Moreover, the Ravenscrofts should have been aware of the limited, thirty-

foot frontage on the Doll’s parent tract because this is the same frontage that they purchased when

they bought the residue of the parent tract from the bankruptcy trustee. They knew, or should have

known, that there is no other access to Route 50 from this side of their property.

For the foregoing reasons, we conclude that the circuit court abused its discretion when

declaring that Mr. Kuhn does not enjoy the use and benefit of the southern right-of-way leading

from the southwest corner of Lot 6 to the thirty-foot frontage along Route 50 that coincides with

the location of the Ravenscrofts’ driveway. As such, we reverse the circuit court’s June 26, 2019,

Trial Order. This case is remanded to the circuit court for entry of an order declaring Mr. Kuhn’s

rights. In addition, the circuit court should address whether cost-sharing measures should be put

into place for the maintenance of the right-of-way. Finally, because Mr. Kuhn’s counterclaim for

money damages was denied on the basis of the circuit court’s erroneous conclusion that there was

no southern right-of-way, on remand the court must also address the counterclaim. 7

For the foregoing reasons, we reverse and remand this case to the circuit court.

Reversed and Remanded with Directions.

ISSUED: November 18, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice John A. Hutchison

7

Although we reverse the circuit court’s ruling regarding the existence of the southern

right-of-way, we express no opinion on the merits of Mr. Kuhn’s counterclaim for money damages.

9

Dissenting:

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Jenkins, Justice, dissenting:

In this case, the majority has determined that an express easement has been granted

to Mr. Kuhn by virtue of the deeds in his chain of title and that such easement traverses a portion

of the driveway that the Ravenscrofts constructed for their own, personal use. Because the deed

language in question as well as the extrinsic evidence submitted by Mr. Kuhn in support of his

claimed right-of-way do not define the allegedly express easement with sufficient certainty so as

to be able to ascertain its precise location, I respectfully dissent from the majority’s decision in

this case.

The majority correctly quotes the metes and bounds description of the Lot 6 parcel,

which specifically references a point of the alleged front right-of-way easement that Mr. Kuhn

argues he has been granted. However, a single point does not provide sufficient specificity to

establish the precise location of an express easement. See Syl. pt. 1, in part, Nutter v. Kerby, 120

W. Va. 532, 199 S.E. 455 (1938) (“The precise location of an easement sought to be established

should be described either by metes and bounds or in some other definite way.” (emphasis added));

Syl. pt. 1, in part, Hoard v. Huntington & B.S.R. Co., 59 W. Va. 91, 53 S.E. 278 (1906) (“A deed

granting . . . a . . . right of way must contain on its face a description of the land in itself certain,

so as to be identified, or, if not in itself so certain, it must give such description as, with the aid of

evidence outside the deed, not contradicting it, will identify and locate the land[.]” (emphasis

added)). Rather, both the starting point and the ending point are required to be provided so that

the location of the express easement may be ascertained with certainty. See, e.g., Folio v. City of

Clarksburg, 221 W. Va. 397, 401, 655 S.E.2d 143, 147 (2007) (per curiam) (observing that “a

deed which described the dimensions of a right-of-way but did not establish its beginning point

was insufficient to convey the right-of-way” (citing Hoard, 59 W. Va. 91, 53 S.E. 278)). 8 Absent

further reference points in the metes and bounds description of Lot 6, Mr. Kuhn must rely on

additional deed language to establish the existence and location of his alleged easement.

8

While this requirement that the exact location of an express easement be defined

in the granting deed with precision originally was recognized only by the common law of this

State, the Legislature also has embraced this need for certainty. See generally W. Va. Code § 36-

3-5a (enacted 2003; amend. 2013) (requiring instrument granting easement or right-of-way to

provide description thereof).

10

However, while the majority also accurately quotes relevant language from Mr. and

9

Mrs. Shrout’s deed that follows the metes and bounds description of the parcel and purports to

establish the express easement at issue herein, the majority noticeably omits any reference to the

deed’s preceding, qualifying language that clearly explains the scope of such easement by setting

forth the original grantors’ intent in making this reservation. The Shrout deed language detailing

the reservation of an easement, and defining its limitations, provides, in full, as follows:

There is hereby RESERVED an easement as necessary in,

along, over, under and through any roadway or right of way

constructed and to be constructed by the Grantors for the benefit of

the subdivision, as well as an easement of necessity and of a

minimum width of five (5) feet along the inside of the boundary

lines of each lot of this subdivision, which easement shall be for

present and future utility purposes, including sewage, water and

drainage, and which easements shall be for the benefit of the future

owners of this subdivision; and as an incident to the reservation of

these easements, the right to construct, install, lay and maintain the

necessary pipe, lines, pipelines, poles, drains and tile to carry out the

purposes of this reservation is hereby expressly reserved.

The roads and rights of way constructed and to be

constructed by the Grantors shall be for the use and benefit of all

owners of property whose source of title is derived from the

Grantors, and the Grantors shall maintain said roads and rights of

way until such time as the Grantors have conveyed four (4) parcels

of land in this subdivision. At that time, the owners of the various

parcels of land in the subdivision shall organize a property owners’

association which shall thence be responsible for the maintenance

of said roads and rights of way. Said roads and rights of way shall

be kept in good condition for the use and convenience of all such

owners, and such owner agrees to contribute equally to the costs of

such easement.

(Emphasis added). As evidenced by the emphasized language quoted above, which provision was

not included in the majority’s decision in this case, the original grantors reserved an express

“easement as necessary” as to “any roadway or right of way constructed and to be constructed by

the Grantors for the benefit of the subdivision.” (Emphasis added). Because Mr. Kuhn cannot

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Mr. and Mrs. Shrout were the first owners of Lot 6 when the original owners of

the parent tract, i.e. the Dolls, originally divided this parcel from their residue, which the

Ravenscroft Trust now owns.

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demonstrate the existence of either of these two prerequisites upon which the express easement he

seeks is conditioned, he has not demonstrated the existence of an express easement by virtue of

the deed’s descriptive language, either.

First,

[a] way of necessity exists where land granted is completely

environed by land of the grantor, or partially by his land and the land

of strangers. The law implies from these facts that a private right of

way over the grantor’s lands was granted to the grantee as

appurtenant to the estate.

Syl. pt. 1, Wooldridge v. Coughlin, 46 W. Va. 345, 33 S.E. 233 (1899), overruled on other grounds

by O’Dell v. Stegall, 226 W. Va. 590, 703 S.E.2d 561 (2010). See also Syl. pt. 4, Cobb v.

Daugherty, 225 W. Va. 435, 693 S.E.2d 800 (2010) (“To establish an easement implied by

necessity (which in West Virginia is called a ‘way of necessity’), a party must prove four elements:

(1) prior common ownership of the dominant and servient estates; (2) severance (that is, a

conveyance of the dominant and/or servient estates to another); (3) at the time of the severance,

the easement was strictly necessary for the benefit of either the parcel transferred or the parcel

retained; and (4) a continuing necessity for an easement.”). Here, all of the parties acknowledge

that Mr. Kuhn can access Lot 6 of his property by traversing the back right-of-way, which the

parties acknowledge exists and which Mr. Kuhn’s predecessors used as their exclusive means of

ingress to and egress from Lot 6. Merely because another route may be more convenient does not

bestow upon the more advantageous path the designation of a way of necessity. See Syl. pt. 5,

Cobb v. Daugherty, 225 W. Va. 435, 693 S.E.2d 800 (2010) (“‘If one has a reasonable outlet over

his own property, he cannot exact a more convenient way as of necessity over the premises of

another.’ Syllabus point 2, Dorsey v. Dorsey, 109 W. Va. 111, 153 S.E. 146 (1930).”). Therefore,

Mr. Kuhn has not demonstrated that the front right-of-way he seeks is necessary insofar as he has

another route by which to access his property, i.e. Lot 6.

Moreover, the original deed in Mr. Kuhn’s chain of title specifically contemplates

that the express easement is granted with respect to “any roadway or right of way constructed and

to be constructed by the Grantors for the benefit of the subdivision.” (Emphasis added). There is

no dispute that the Ravenscrofts, who conveyed the residual parent tract to its current owner, the

Ravenscroft Trust, received title to this parcel subject to the above-quoted language contained in

the deeds for the formerly contemplated subdivision lots, including Lot 6, that were severed from

the parent tract. However, the parties also do not dispute that the once contemplated subdivision

was never realized; such plans were abandoned when the original grantors declared bankruptcy,

and the residue of their real estate was conveyed in satisfaction of their debts. As such, by the time

the Ravenscrofts, and later the Trust, acquired this property, this condition that the express

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easement was granted only in routes constructed “for the benefit of the subdivision” was no longer

applicable because the subdivision was never completed. By the same token, Mr. Kuhn has not

demonstrated that the Ravenscrofts constructed their driveway “for the benefit of the [nonexistent]

subdivision”; rather the sole record evidence on this point shows that the Ravenscrofts constructed

their driveway, at their own expense for which they sought no contribution from adjacent

landowners, as the exclusive means by which to access their own residence, and not as a means of

ingress to or egress from the other lots comprising the never realized subdivision. As such, this

condition precedent for the operation of the express easement also has not been satisfied.

Finally, Mr. Kuhn attempts to demonstrate the location of the purported front right-

of-way by introducing surveys of the subject property that he, himself, commissioned. However,

he does not explain how the alleged right-of-way can traverse the same path that is occupied by a

well casing that is clearly marked on not one, but two of the surveys he relies upon to establish the

alleged easement’s location. It stands to reason that if the well casing is still in existence, a vehicle

could not drive over it, and, by the same logic, the well casing would not have been marked on the

surveys if it was not still in existence. Therefore, Mr. Kuhn’s attempt to establish the location of

the alleged front right-of-way by extrinsic evidence also fails to identify it with the specificity

required of an express easement.

Above all, Mr. Kuhn was required to prove the existence of his alleged easement

by clear and convincing evidence: “[t]he burden of proving an easement rests on the party claiming

such right and must be established by clear and convincing proof.” Syl. pt. 1, Berkeley Dev. Corp.

v. Hutzler, 159 W. Va. 844, 229 S.E.2d 732 (1976), overruled on other grounds by O’Dell v.

Stegall, 226 W. Va. 590, 703 S.E.2d 561. Considering his failure to overcome the lack of a definite

description of the location of the alleged easement in the language of the deed, itself; to show that

the easement he claims to possess satisfies the “as necessary” and “for the benefit of the

subdivision” prerequisites to its creation; or to demonstrate the precise location of the purported

easement by extrinsic evidence, Mr. Kuhn has not established the existence of the alleged front

easement by “clear and convincing proof.” Id. Therefore, I respectfully dissent from the

majority’s decision finding to the contrary. I am authorized to state that Justice Walker also joins

in this dissent.

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