Beckley Nat. Exchange Bank v. Lilly

Decision Date26 November 1935
Docket Number8233,8234.
Citation182 S.E. 767,116 W.Va. 608
PartiesBECKLEY NAT. EXCHANGE BANK v. LILLY et al. SANDERS v. SAME.
CourtWest Virginia Supreme Court

Submitted October 23, 1935.

Syllabus by the Court.

1. Although the right to the use of an easement attaches to every part of the dominant estate to which it is appurtenant and passes with a conveyance thereof, no right of way of necessity arises as an appurtenance to a part of the dominant estate entitling its owners to pass over another part of such estate separating it from the easement in question, where it appears that there are other adequate modes of ingress and egress to that part of the dominant estate asserting the right.

2. In order to establish a right of way by prescription, all of the elements of prescriptive use, including the fact that the use relied upon is adverse, must appear by clear and convincing proof.

3. While a clause in a deed of conveyance which is phrased as a reservation may be treated as an exception where it is necessary to do so in order to carry out the plain purpose of the parties to the instrument, even when so construed, it cannot operate actually to vest rights to the property excepted in persons who are strangers to the instrument.

Appeal from Circuit Court, Wyoming County.

Suits by the Beckley National Exchange Bank and Carl C. Sanders trustee, respectively, against J. D. Lilly and others. From adverse decrees, plaintiffs appeal.

Affirmed.

Frank Lively, of Charleston, J. W. Maxwell, Carl C. Sanders and W A. Thornhill, Jr., all of Beckley, and Stanley C. Morris, of Charleston, for appellants.

File File & Scherer, of Beckley, for appellees.

KENNA Judge.

This suit was instituted in the circuit court of Raleigh county by Beckley National Exchange Bank against J. D. Lilly and others for the purpose of enjoining the defendants from building upon and closing a strip of land 16 1/2 feet wide and about 50 feet long, the width of which abuts the southern extremity of the southeastern line of plaintiff's property upon the corner of Main and Heber streets in the city of Beckley, over which the plaintiff claims an easement for ingress and egress as an alleyway to the southeastern side of its building. Prior to the bringing of the suit, the defendants were notified by the plaintiff that it did not intend to permit the construction of a building upon the alleged alleyway. The suit was then brought, but no temporary injunction was applied for. Pendente lite defendants began and completed the construction of their building which entirely covers the alleged alleyway. By its amended and supplemental bill, plaintiff sought a mandatory injunction requiring the defendants to remove that part of their building which is upon the alleged alleyway, and to open it in a manner that would restore the plaintiff's alleged easement and right of use. After full pleadings and proof, which comprise a printed record of 582 pages upon this appeal, the circuit court of Wyoming county, to which the cause had been transferred owing to the disqualification of the judge of the Circuit Court of Raleigh county, upon final hearing, entered its decree finding in favor of the defendants, and dismissing plaintiff's bill of complaint.

The exhaustive detail with which this case is involved, both upon the record and in the briefs, cannot be fully, and perhaps not adequately, dealt with in the scope of a written opinion. Always remembering that it is not the function of this court upon conflicting proof to decide causes as it believes they should have been decided in the trial court, but that it is our office to decide whether there is some clear reason, either of law or of fact, for deeming the trial court's decree wrong and reversing it, we hope to sufficiently state the matters upon which, in our opinion, the decision of this case necessarily turns.

The propositions relied upon for reversal of the trial chancellor's decree are stated as follows in the brief for the appellant:

First: The deeds from Combs to Blankenship vested in Blankenship a right of way in the 16 1/2-foot alley, which right of way has passed to and is now vested in the plaintiff.

Second: Even if no right of way in the 16 1/2-foot strip vested in Blankenship by virtue of the deeds under which he took his lot, he and the plaintiff acquired such right of way by prescription.

Third: The deeds under which the Lillys hold bind them to recognize and observe the rights of the plaintiff in and to the 16 1/2-foot alley.

The plaintiff below, also plaintiff in error, holds under P. L. Blankenship, and the defendants below hold one-half of their lot under direct conveyance from C. E. Combs and the other half under Combs by mesne conveyances. For this reason the properties will be spoken of mainly as the Blankenship and Combs lots.

Some time prior to 1907, the half block of land in the city of Beckley, bounded by Fayette street on the east, Neville or Main street on the north, Heber street on the west, and an alley on the south, was comprised of lots, the owners of which concluded that they would create alleys within the half block to serve their respective properties. For convenience, this half block and the properties lying within it will be referred to as though Fayette street and Heber street ran due north and south and Main street and the alley ran due east and west, although, according to the meridians upon the plat filed in the case, this is not exactly accurate.

The owners of the different lots within this half block, by written agreement, established a 16-foot alley, the south corner of which on Fayette street is approximately 75 feet north of Main street, and which runs westward parallel with the property line on Main street a distance of approximately 170 feet. Later, there was established a 14-foot alley running south from approximately the west end of the first alley to the alley lying at the south of the half block mentioned between Fayette and Heber streets. These two alleys have both been improved by paving, and neither is in controversy in this case. The strip of land in controversy is 16 1/2 feet wide and lies between the east line of the plaintiff's lot (referred to in the testimony sometimes as the Blankenship lot) at its southern extremity and the point where the two first described alleys join. For the purpose of this case, this strip of land may be referred to as running east and west, and as being something like 55 feet in length.

In 1907, Combs had acquired all of a lot of land lying within the half block fronting approximately 80 feet on Main Street, running back with Heber Street between parallel lines a distance of about 100 feet and including entirely the strip of land in controversy. On April 27, 1912, T. E. Combs and wife conveyed to P. L. Blankenship from this larger lot, a lot fronting 27 feet on Main street and running with Heber street, and between parallel lines, a distance of 75 feet. This deed established a party wall agreement between T. E. Combs and P. L. Blankenship upon both of the lines of the lot conveyed which abutted upon the remaining Combs property, the remaining portion of which bounded the lot sold on the east and south side.

It is to be observed that this first lot conveyed to Blankenship does not extend from Main street and in a southerly direction far enough to reach the strip of land in controversy.

On July 11, 1912, T. E. Combs and wife conveyed to P. L. Blankenship a lot fronting 26 feet on Heber street and lying to the south of the lot formerly conveyed to Blankenship. This second lot conveyed to Blankenship lay between the east and west lines of the lot formerly conveyed to him extended a distance of 26 feet, with the exception that nine inches additional land lying directly across the western end of the land in controversy was conveyed to Blankenship at the southern extremity of his eastern line for a distance of 16 1/2 feet. In this deed, a party wall agreement that was established in the former deed along the southern line of the lot first conveyed to Blankenship is released, and a party wall agreement that was established in the former deed on the eastern line of the Blankenship lot at that time conveyed is extended a distance of 10 feet. At this point, the nine-inch conveyance to Blankenship begins and the deed stipulates that, for the 16 1/2 feet that this nine-inch conveyance covers, Combs shall have the right at any time in the future to join to any wall that may be built upon the eighteen inches comprised by this nine inches and the nine inches immediately west of and parallel to it by paying one-half of the cost of construction.

The first contention of the plaintiff is that since the entirety of the Combs lot, out of which both of the lots conveyed to Blankenship were carved, was a part of the dominant estate for the use of which the easements in the original alleys (referred to as having been improved) were created, the entire Combs lot was the dominant estate as to the easements in those alleys, and that therefore the lots conveyed to Blankenship had the same right to the enjoyment of these alleys as did the part of the Combs lot remaining in Combs after those conveyances. It is argued by the plaintiff that inasmuch as the Blankenship property could not enjoy the easement in the first two alleys created, without passing over the 16 1/2-foot strip at the back end of the Combs lot remaining in Combs after the conveyances to Blankenship, and inasmuch as it must be supposed that the Blankenship property was intended to enjoy the easement appurtenant to it, the right of way over the 16 1/2-foot strip necessarily follows by operation of law as the effect of the conveyances to Blankenship.

It may be admitted...

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