Bennett v. Charles Corp., 13586

• Decision Date: 20 July 1976
• Docket Number: No. 13586,13586
• Citation: 226 S.E.2d 559,159 W.Va. 705
• Court: West Virginia Supreme Court
• Parties: Howard BENNETT and Lillian L. Bennett v. The CHARLES CORPORATION, a corporation, et al.

Page 559

226 S.E.2d 559

159 W.Va. 705

Howard BENNETT and Lillian L. Bennett v. The CHARLES CORPORATION, a corporation, et al.

No. 13586.

Supreme Court of Appeals of West Virginia.

July 20, 1976.

Syllabus by the Court

1. 'Valid restrictions upon the use of land, imposed upon the servient estate of the vendor in favor of the dominant estate of the vendee, constitute an easement in the land; but such easement can not arise from an oral agreement as to which there has been no complete or part performance by the vendee or no fraud or inequitable conduct upon the part of the vendor upon which to base equitable estoppel.' Point 1 Syllabus, Cottrell v. Nurnberger, 131 W.Va. 391, 47 S.E.2d 454 (1948).

2. 'An oral agreement to create an easement in the nature of restrictions upon the use of land of the vendor in favor of the vendee is within the Statute of Frauds; and the mere failure or refusal of the vendor to perform such agreement, unaccompanied by other acts or conduct on his part, does not estop him to assert the statute as a defense to the claim of the vendee, or his successor, to such easement.' Point 2 Syllabus, Cottrell v. Nurnberger, 131 W.Va. 391, 47 S.E.2d 454 (1948).

3. Mere restrictions upon the use of land imposed by directive language in a will are not subject to equitable enforcement against subsequent purchasers with notice of the restriction, where the advantage secured by the restriction merely constituted a benefit to an original devisee and not to the land itself.

J. Ross Hunter, Jr., F. Duane Hill, Charleston, for appellants.

Fred M. Frisk, Jr., Sam D. Lopinsky, Charleston, for appellees.

FLOWERS, Justice.

This appeal from a judgment of the Circuit Court of Kanawha County involves the enforceability of certain restrictions upon the use of a tract of land. The plaintiffs, Howard Bennett and Lillian L. Bennett, owners of a dwelling house within a subdivided tract, sought to enjoin the defendants who are the owners of the remaining lots in the tract from converting those lots into a cemetery and from using them for other than residential purposes. The plaintiffs also sought additional mandatory relief requiring the defendants 'to remove any graves (sic) in said subdivision' and to pay ten thousand dollars damages and costs.

The equitable relief sought was awarded by the Common Pleas Court of Kanawha County. The Circuit Court refused to entertain an appeal on the ground that, following the adoption of the Judicial Reorganization Amendment in 1974, appellate relief could only be granted by this Court. The defendants were then granted an appeal here from the adverse judgment.

The most significant issues confronting us involve: (1) whether the defendants by oral representation at the time of the sale of the property to the plaintiffs created an equitable negative easement which is enforceable and (2) whether the defendants are bound as subsequent purchasers with notice by restrictive testamentary language in a devise of the property to their predecessors in title.

James M. Curry died testate in 1941 and by his will, probated and placed of record more than twenty years prior to the conveyance to the defendants, devised the residue of ten acres of real estate to his sons, F. I. Curry and J. C. Curry. The will contained the following language:

'. . . It is my desire and I hereby direct that hereafter there shall not be sold or used for cemetery purposes or for the burial of the dead any additional part of the said tract and parcel of ten acres land, except that part now fenced and enclosed as a cemetery.

'I further direct that the proceeds from the sale of any and all cemetery lots included in the three to four acres hereinbefore mentioned, and enclosed by fence as above described, shall be paid to and become the money and property of my two sons E. R. Curry and W. B. Curry, to be used by them in the payment of the taxes, insurance, upkeep and other expenses up on the real estate hereinbefore bequeathed to them jointly.'

The devisees, F. I. Curry and J. C. Curry, subsequently partitioned the six to seven acres left them from the ten-acre tract. The portion received by F. I. Curry was platted in 1954 as the 'F. I. Curry subdivision.' The plat showed a separation of lots into two blocks divided by a street. That portion east of the street, containing 12 lots, was designated as 'Block A', while the portion west of the street, containing 13 lots, was designated as 'Block B'.

No lots were sold while F. I. Curry owned the property. The entire tract was purchased in 1964 by Clyde Eplin and The Charles Corporation who together constructed two houses on the portion of the tract designated as Block B. One of the houses was leased for six months and then sold to the plaintiffs by a deed, dated September 1, 1965. The deed described the property as 'Lot No. Three (3) of the F. I. Curry Subdivision to Marmet' and made reference to the plat 'for aid in the description and identification of the property.' Neither the deed nor the plat contained restrictive covenants of any nature. It was undenied, however, that the sellers intended, and so represented to the plaintiffs through Eplin and a real estate agent, that the subdivision would be a residential development and that additional houses would be built. The defendants objected to the introduction of parol evidence to vary the terms of the deed and plat, contending that a servitude upon the defendants' lands could be created only by a writing which met the requirements of W.Va.Code, 36--1--1 and 36--1--3.

After negotiation of the sale of the property to the plaintiffs, Eplin became ill. He moved into the other house he had built in Block B near the Bennetts and sold his interest in the land to The Charles Corporation. The defendant Lewis, who was President of The Charles Corporation, testified that in late 1969 or early 1970 he found he could not develop Block A as a residential housing area because of difficulties obtaining a sewage line. He then decided to clear the land and develop it as a cemetery.

After learning of the proposed cemetery development, the plaintiffs accepted a deed for a portion of the additional half of a lot adjacent to their dwelling which they had agreed to purchase in 1965. This second deed, like the first, contained no restrictions on use.

In February, 1972, a cemetery plat was recorded and a lot was sold to Mr. and Mrs. William Howard Markham. The Markham lot was located in the center of the original Block A. In April, 1972, William Howard Markham was buried there. It was acknowledged that the Markham gravesite was no closer to the plaintiffs' property than the two established cemeteries which border on the subdivision perimeter. The plaintiffs nevertheless claimed their property was diminished in value by the establishment of the new cemetery.

A civil action was filed by the Bennetts in April, 1972, naming as defendants, The Charles Corporation, C. Russell Lewis, and Margaret Louise Markham, widow of William Howard Markham. Mrs. Markham filed a third-party complaint against The Charles Corporation and Lewis.

The court found that the plaintiffs would not have purchased the property from The Charles Corporation had they been aware that a portion of the subdivision would be used for a cemetery. Upon this finding the court determined that an implied covenant arose upon the sale of the property to the Bennetts, warranting that the property would not be used for cemetery development and would be used solely for residential purposes. The trial court ordered that an injunction should issue enjoining the defendants from developing the property as a cemetery and requiring defendant Markham to remove her husband's body within 60 days. Upon her failure to do so, the plaintiffs were extended the right to remove the body to a suitable resting place.

Thereafter, upon motion of counsel for the plaintiffs, the court admitted as after-discovered evidence the will of James M. Curry and affirmed its prior ruling.

I

The initial question presented for decision involves whether the events surrounding the sale of property in the subdivision to the Bennetts support injunctive enforcement of an oral negative restrictive easement against the property identified as 'Block A'. Easements may be classed as affirmative or negative. When the effect of the restriction sought is to preclude an owner of land from doing something he otherwise would be entitled to do, it is considered a negative easement. 25 Am.Jur.2d, Easements and Licenses, § 8, pp. 422--23; Cottrell v. Nurnberger, 131 W.Va. 391, 397--98, 47 S.E.2d 454, 457 (1948). Negative restrictive easements are basically restrictive covenants ¹ which are equitably enforceable. 2 G. Thompson, Real Property, § 382, p. 540 (1961); 25 Am.Jur.2d, Easements and Licenses, § 5, p. 421.

Though the terms 'easement' and 'servitude' are often used indiscriminately the one is usually applied to the right enjoyed while the other refers to the burden imposed. Cottrell v. Nurnberger, supra at 397, 47 S.E.2d at 457.

An easement, whether affirmative or negative, is an incorporeal hereditament and as such is a species of real property or land subject to the provisions of the statutes governing the conveyance or creation of estates in land. W.Va.Code, 36--1--1, and the Statute of Frauds, W.Va.Code, 36--1--3. Cottrell v. Nurnberger, supra at 397, 47 S.E.2d at 457.

The deed to the plaintiffs did not create the negative easement, nor did the plat or any other writing meet the requirements of the Statute of Frauds, W.Va.Code, 36--1--3. Whether the will of James M. Curry created such an easement is dealt with hereafter.

While there are limited instances in which an easement has been held to 'arise from estoppel' or where the owner against whose land an easement is sought may be estopped from asserting the Statute of Frauds as a defense, we think such exceptions were ably dealt with in Cottrell and the decision...