Stuart v. Lake Washington Realty Corp.

Given, Judge,

dissenting:

Being clearly of the opinion that an implied flowage easement was created in the circumstances of the conveyance of the 2.9 acres from Stuart Lakes, Inc. to Doctor Henderson, later acquired by plaintiff, and that plain *656 tiff, the present owner of the 2.9 acres, is estopped to deny the existence of such an easement, I am forced to this dissent.

Doctor Henderson was one of the promoters and “associates” and was “active in the affairs of Stuart Lakes, Inc.” At the time of the conveyance to Doctor Henderson, in fact long before, he had full knowledge of the proposed plan to raise the level of the lake to twenty feet and that at that level water would flow onto the property conveyed. He presumably knew, as an active “associate”, that the only reason the level of the lake had not been raised to that height was because of the requirement of the Public Service Commission relating to the raising of the height of a certain public road before the raising of the level of the lake. He also knew that large sums, many thousands of dollars, had been expended in the construction of the dam and other improvements of the property, all for the purpose of raising the level of the lake to twenty feet; that large numbers of lots had been offered, sold and purchased, upon the representation and belief that the lake would eventually be raised to that level; and that the level of the lake could not be raised to twenty feet without the flowage of water onto a small portion of the 2.9 acre tract of land. He also knew that large losses would result to the company promoting the project and to himself, as well as to purchasers of lots, unless the level of the lake was raised to the twenty foot height. In such circumstances, I can not conceive of any intention on the part of Doctor Henderson, or the grantor, other than to create such an easement. Can it possibly be believed that the company intended to make it absolutely impossible to complete the raising of the dam, as planned and represented, at a loss of many thousands of dollars to itself and purchasers of lots, by the sale of the 2.9 acre tract at the price of $1,400.00 ? Or can it be believed that Doctor Henderson, one of the promoters and “associates”, and an owner of other lots in the subdivision which would be adversely affected, had any such intention?

*657 This Court has repeatedly held, as pointed out in the opinion of the Court in the instant case, that an easement may be created by implication. See Miller v. Skaggs, 79 W. Va. 645 , 91 S. E. 586 , Ann. Cas. 1918D 929; Bennett v. Booth, 70 W. Va. 264 , 73 S. E. 909 ; Hoffman v . Shoemaker, 69 W. Va. 233 , 71 S. E. 198 , 34 L.R.A., N. S., 632; Nomar v. Ballard, 134 W. Va. 492 , 60 S. E. 2d 710 ; Smyth v. Brick Row Realty Co., 97 W. Va. 40 , 124 S. E. 499 ; Boyd v. Woolwine, 40 W. Va. 282 , 21 S. E. 1020 .

In Miller v. Skaggs, supra, Point 1, Syllabus, the Court held that the requirements for the creation of an easement by implication in this State are that “the existing servitude must at the time of the deed be apparent, continuous and strictly necessary”. In Point 4, Syllabus, of the same case, the Court held “strict necessity * * * is not limited to one of absolute necessity, but to reasonable necessity, as distinguished from mere convenience.” It is true that some of the text writers and cases from other jurisdictions lay down other and more exacting requirements as to the creation of an easement by implication, but since this Court has passed on the question I deem it unnecessary to point out the differences. The Court, in Miller v. Skaggs, supra, also makes it clear that an easement so created need not have been, previous to its creation, reduced to possession, or actually used, but that the necessity therefor “must at the time of the deed be apparent”.

That “reasonable necessity” for the flowage easement contended for in the instant case existed at the time of the delivery of the deed to Doctor Henderson can not be questioned. The facts relating thereto have already been pointed out. The opinion of the Court does not attempt to show how the level of the lake could be maintained, or how a very great injury to the grantee, the grantor, and purchasers of the lots, could be prevented, without such an easement. It is just as clear that such “reasonable necessity” for the easement was and is “continuous”. It *658 appears clear, therefore, to me, that the requirements as to the creation of the flowage easement, as held in Miller v. Skaggs, supra, are present in the instant case.

In Bennett v. Booth, supra, the Court held: “1. If an owner of land erect a mill dam upon it for the purpose of operating a grist mill, and thereafter convey a portion of the land including a part of the mill-pond, there is an implied reservation of an easement upon the land granted, as appurtenant to the grist mill.” While the opinion of the Court in the instant case attempts to distinguish the controlling facts therein from the controlling facts in the cited case, I can find no material differences. In the instant case, as in the cited case, the titles to the servient and dominant estates were vested in the same owner immediately before the conveyance; the dam was erected by the dominant estate owner in each case; the dam in each case was constructed subsequent to the pertinent conveyance, so that no water was caused to flow upon either of the servient estates until after the creation of the respective easements; and the “reasonable necessity” for the easement in connection with the continuous use and enjoyment of the dominant estate in the instant case is as clearly apparent as it was in the cited case. In view of such facts, which cannot reasonably be disputed, it seems clear that a flowage easement was impliedly created.

The six essential elements constituting an estoppel are set out by this Court in Norfolk and Western Railway Co. v. Perdue, 40 W. Va. 442 , 21 S. E. 755 , quoted in the opinion of the Court in the instant case. Each of such elements is present in the instant case: (1) There was conduct on the part of plaintiff, as found by the circuit court, which amounted to representation to purchasers of lots, intervening parties in this proceeding, of the fact that the level of the lake would be raised to twenty feet; (2) there can not be any doubt that plaintiff, the person sought to be estopped, knew that the twenty foot level of the lake would inundate a small portion of the 2.9 acres. A line representing such level had been es *659 tablished, and stakes were set on the 2.9 acre tract indicating such line, all known to plaintiff; (3) the truth as to such facts was unknown to such purchasers at the time of such conduct and representations of plaintiff. Neither the defendant corporation nor the purchasers of land had any knowledge or reason to suspect that plaintiff had any intention of attempting to prevent the raising of the level of the lake to twenty feet, until after the notice served by plaintiff, and after the many and expensive improvements had been made, and lots purchased; (4) the conduct and representations of plaintiff were at a time and for the purpose of inducing purchasers to buy lots; (5) the conduct and representations of plaintiff were relied upon, and in pursuance thereof purchases of lots were made, with the distinct understanding and expectation on the part of the purchasers that the level of the lake would be raised to twenty feet; and (6) the purchasers of lots, in relying upon such conduct and representations of plaintiff, did change their position and were injured thereby.

There is not the least doubt that during the time between the purchase of the 2.9 acres of plaintiff and the time she first gave notice of her intention to contest the right of defendant to so raise the level of the lake to twenty feet, very large sums of money, many times larger than the price of the 2.9 acres paid by plaintiff, were expended on improvements by the defendant corporation, and a very large number of purchasers had expended many, many thousands of dollars in the purchase of lots, believing and relying upon representations to the effect that the level of the lake would be raised to twenty feet. I find nothing in the record to dispute any one of such conclusions. The opinion of the Court does not undertake to point out wherein the facts of the case fall short of any of such conclusions, but seems to rest solely upon the fact that the proof does not show that plaintiff, in such conduct and in the making of such representations, was “the agent of the defendant”. But the estop-pel contended for is not against the defendant company. *660 It is sought against the plaintiff personally, not as agent of the defendant or of any other purchaser. The conduct and representations of plaintiff, which misled the purchasers of lots to their injury, would not prevent her from being estopped, whether or not such agent.

Prior to the entry of the final decree, a motion was directed to the court to the effect that defendant be permitted to make such fills, dikes or dams on its own property as were necessary to remove any water from the property of plaintiff and to prevent any further flooding thereof, instead of requiring the lowering of the level of the lake. This motion was denied. I am of the view that equity required the granting of the motion. The 2.9 acres were purchased by plaintiff for $1,400.00. Plaintiff contends that 1760 square feet of her land has been inundated, while defendant contends that only 345 square feet have been inundated. Thus, according to plaintiff’s own testimony, the approximate proportionate value of the land inundated was less than $20.00. Since the circuit court found and decreed that the lowering of the level of the lake 2.5 feet would prevent water from the lake from flowing on such small parcels of plaintiff’s property, it appears certain that defendants could cause any water thereon to be removed, by such methods as proposed, and to thereby prevent further flooding of any land of plaintiff and prevent damages to defendant and the intervening lot owners amounting to many thousands of dollars. Moreover, the evidence clearly shows that the properties fronting on the lake and having easy access thereto are, for that reason, substantially increased in value. Yet this Court tosses the matter aside on the theory that the defendant corporation did not indicate, by pleading or proof, that such methods were available or would accomplish the purposes intended. But I have always understood the law to be that a plaintiff demanding mandatory injunctive relief, especially where to grant the same would do great injury to the defendant, must prove, and prove clearly, the relief to which he is entitled. “Relief by mandatory injunction will be given only where the *661 right of the applicant is clear and the necessity urgent.” Point 1, Syllabus, Lamp, et al. v. Locke, et al., 89 W. Va. 138 , 108 S. E. 889 . See Backus v. Abbot, 136 W. Va. 891 , 69 S. E. 2d 48; Kennedy v. Klammer, 104 W. Va. 198 , 139 S. E. 713 ; Mullens v. The Virginian Railway Co., 96 W. Va. 465 , 123 S. E. 287 ; Akers v. Mathieson Alkali Works, 151 Va. 1 , 144 S. E. 492 . Moreover, in the course of the taking of depositions in this very proceeding, the plaintiff by counsel several times informed the court that she was not seeking a decree requiring “Lake Washington to lower the lake level”, in such language as this: “Second, this suit has not been brought for the purpose of requiring Lake Washington to lower the lake level. The purpose of this suit is to require the defendants to remove and abate a nuisance. Whether they do it by lowering the lake level or some other way is their business.” Yet in the face of such representations as to the purpose of the suit, as well as the other facts shown, the Court requires the lowering of the level of the lake 2.5 feet, notwithstanding, as the opinion of the Court admits, “It is not disputed that if the present elevation of the dam is lowered as much as 1.9 feet the lots which front on the lake will be rendered practically inaccessible from the lake, the value of all the lots in the subdivision will be greatly and permanently depreciated and impaired Jji sfc iji

In view of the facts recited, especially the several statements of counsel of plaintiff, made in the course of the trial, to the effect that the plaintiff did not seek the lowering of the level of the lake, if the decree complained of is equity, it is, to me, equity upside down.

Being of the views indicated, I respectfully dissent. I am authorized to say that Lovins, Judge, joins in this dissent.