Weatherholt v. Weatherholt

• Decision Date: 26 February 2015
• Docket Number: No. 14–0219.,14–0219.
• Citation: 769 S.E.2d 872,234 W.Va. 722
• Court: West Virginia Supreme Court
• Parties: Daniel Allen WEATHERHOLT and Anita Denice Weatherholt, Defendants Below, Petitioners v. Jeffrey Neal WEATHERHOLT, Plaintiff Below, Respondent.

234 W.Va. 722

769 S.E.2d 872

Daniel Allen WEATHERHOLT and Anita Denice Weatherholt, Defendants Below, Petitioners

v.Jeffrey Neal WEATHERHOLT, Plaintiff Below, Respondent.

No. 14–0219.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 27, 2015.

Decided Feb. 26, 2015.

Jason R. Sites, Esq., Sites Law Firm, PLLC, Keyser, WV, for Petitioners.

J. David Judy, III, Esq., Judy & Judy, Moorefield, WV, for Respondent.

Opinion

BENJAMIN, Justice:

Petitioners Daniel and Anita Weatherholt appeal the January 15, 2014, order of the Circuit Court of Hardy County that granted injunctive relief to the plaintiff below and respondent herein, Jeffrey Weatherholt. The order prohibited the petitioners from placing any obstructions in the respondent's right-of-way and concluded that the current location of the respondent's water line is an appurtenant prescriptive easement through the petitioners' property. For the reasons set forth below, we affirm the circuit court's order.

I. FACTUAL AND PROCEDURAL BACKGROUND

The petitioners, Daniel Weatherholt and his wife Denice Weatherholt, are the owners of a tract of real estate on which they reside in Hardy County which is located just off of a public road known as Frosty Hollow Road. The petitioners acquired this land in 2001 from Daniel Weatherholt's grandmother, Ruth Barr. Daniel Weatherholt's parents, Otis and Bette Weatherholt, live on a tract of real estate beside the petitioners. Daniel Weatherholt's brother, Respondent Jeffrey Weatherholt, lives on real estate located on the other side of Otis and Bette Weatherholt.

The parties stipulated that a 20–foot wide right-of-way exists from Frosty Hollow Road, across the petitioners' property, across the property of Otis and Bette Weatherholt, to the respondent's property. The parties also stipulated that a 12–foot wide utility easement was deeded to the respondent and exists on the east side of the 20–foot wide right-of-way.¹ The parties generally have agreed that the 20–foot wide right-of-way is ten feet from either side of the centerline of the existing paved roadway that runs from Frosty Hollow road to the respondent's property.² The paved roadway is about 12 feet wide which means that approximately four feet on either side of the paved roadway is within the 20–foot wide right-of-way.

In July 2013, Respondent Jeffrey Weatherholt filed a complaint against Petitioners Daniel and Denice Weatherholt in the Circuit Court of Hardy County in which he alleged that

[t]he [petitioners] have cause [sic] to be constructed certain impediments and obstructions within the right of way and on the paved roadway which provides deeded access to the property of your [respondent], including having nailed wooden boards into the pavement as purported speed barriers; constructing buildings which have doors that open on the access right of way of the [respondent]; leaving childrens' toys within the right of way; constructing a flower garden and rock garden within the right of way; placing wooden barriers and firewood within the right of way; digging holes in the dirt along the edge of the roadway; and parking equipment in the right of way, all intentionally calculated to interfere with the open access granted to your [respondent] for access to his real estate as noted within his Deed.

Your [respondent] has approached the [petitioners] on numerous occasions in an effort to have the obstructions and restrictions in and on the roadway and rights of way removed to allow free and open access contemplated within the Deed of the [respondent]. The [petitioners] have refused to remove the barriers placed within the right of way, including refusing to remove the two (2) wooden “speed bumps” which have nails protruding within the paved roadway ...

The respondent sought a permanent injunction against the placement of impediments in the right-of-way.

In their answer to the complaint, the petitioners included a counterclaim in which they alleged the following: the respondent had caused or permitted to be constructed a water line serving the respondent's residence that crosses the petitioners' property; the location of the water line is not within the utility easement owned by the respondent; the impermissible placement of the water line constitutes a trespass; and as a result of the trespass, the respondents have suffered injury in the loss of value to their property and nuisance.

The circuit court originally granted a temporary injunction against the petitioners regarding impediments in the respondents' right-of-way. Subsequently, after a bench trial, the circuit court entered a January 15, 2014, judgment order. Regarding the 20–foot wide right-of-way, the circuit court found as follows:

[T]he [petitioners] have constructed, caused, allowed and permitted to be placed and remain, as constant obstructions within the bounds of the twenty feet (20') wide access right of way, certain obstructions and hazards, including but not limited to boards with nails protruding to serve as “speed bumps” and children's toys and equipment.

The [petitioners] further constructed and/or placed two wooden out-buildings along the west side of the access right of way. Although not constructed within the bounds of the twenty feet (20') wide easement, the doors of the buildings do open into the bounds of the right of way, the doors swing open into the access right of way, and persons utilizing the two buildings must stand within the bounds of the right of way to gain entry and exit into the buildings.

The Court further finds that all of the obstructions and hazards as described ... above, with the exception of the wooden speed bumps, have been and are “habitual” in occurrence and nature. Although not making the driveway completely impassable, the obstructions are so close to the twelve feet (12') wide paved roadway so as to have made passage inconvenient and at times unsafe for both [respondent and petitioners] (citations to record omitted).

Accordingly, the circuit court permanently enjoined the petitioners from placing any impediments or obstructions within the entirety of the 20–foot right-of-way.

Regarding the placement of the respondent's water line across the petitioners' property, the circuit court found as follows:

[T]he [respondent] has proven by clear and convincing evidence that he has a prescriptive easement with regard to the water line. [Respondent] testified that the water line was placed in 1998 or 1999. Otis Weatherholt [Petitioner Daniel Weatherholt's and Respondent Jeffrey Weatherholt's father] testified that he assisted and participated in the construction of the water line and [Petitioner] Daniel Weatherholt testified that he knew of the existence of the water line in its current location prior to constructing his home in 2001. The Court finds there was no evidence of permission having been asked or received by the [respondent] from Ruth M. Barr, the owner of the property prior to [petitioners], with regard to the location of the water line. In fact, [respondent] testified that he had the water line installed before he told his grandmother about it and that he never asked her for permission to put the water line in its current location.

Finally, the circuit court found that despite the fact that the petitioners had actual notice of the water line from 2001 through the date of the filing of their counterclaim in 2013, they made no objection to the water line's location but rather acquiesced to its location. Accordingly, the court concluded that the respondent has a prescriptive easement appurtenant to his real estate for the location of the water line.

II. STANDARD OF REVIEW

The petitioners challenge the circuit court's grant of an injunction in favor of the respondent and the circuit court's finding that the location of the respondent's water line through the petitioners' property constitutes a prescriptive easement. Regarding our standard of reviewing the grant of a permanent injunction, this Court has held:

Unless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse or to modify, continue, or dissolve a temporary or a permanent injunction, whether preventive or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion.

Syl. pt. 11, Stuart v. Realty Corp., 141 W.Va. 627, 92 S.E.2d 891 (1956). Further, “[i]n reviewing challenges to findings and rulings made by a circuit court ... we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syl. pt. 3, in part, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). With these standards to guide us, we now consider the petitioners' assignments of error.

III. DISCUSSION

A. Jury Trial Issue

In their first assignment of error, the petitioners argue that the circuit court erred in denying their timely request for a jury trial.

The record indicates that in their answer the petitioners requested a jury on both the respondent's request for a permanent injunction and on the petitioner's counterclaim for trespass and nuisance arising from the placement of the respondent's water line. In a pre-trial hearing, the circuit court informed the petitioners that they were not entitled to a jury trial on these issues. However, immediately before the start of the bench trial, the circuit court revisited the jury trial issue and indicated that the petitioners were entitled to a jury trial on their counterclaim. The court further indicated that the petitioners could have a jury trial on their counterclaim separately from the trial on the respondent's request for a permanent injunction or they could proceed to have both matters decided that day in a bench trial. Counsel for the petitioners indicated that “we're...