Bent v. Barnes
| Decision Date | 11 March 1913 |
| Citation | 78 S.E. 374,72 W.Va. 161 |
| Parties | BENT v. BARNES et al. |
| Court | West Virginia Supreme Court |
Submitted September 12, 1911.
Rehearing Denied May 29, 1913.
Syllabus by the Court.
In consideration that J. B. would build a good road across a triangular piece of C. B.'s land, C. B. agreed in writing to grant to him the small triangle cut off by the road which, as stipulated in the agreement, was to be located seven rods from the apex of the triangle, thus forming a small triangle, estimated to contain about 17 square rods. J B., without the knowledge of C. B., built the road at a place much farther than seven rods from the apex of the triangle and thereby cut off a triangle containing more than 60 square rods. After the road had been built, but without knowledge of its location, C. B. conveyed to T. the entire tract of land describing it by metes and bounds, and, by express reference to the agreement, excepted from the operation of the grant the part that he was bound to grant to J. B. The agreement between C. B. and J. B. was not recorded, and, at the time of his purchase, T. had not seen it, but knew where the road had been built by J. B. Being thereafter advised that the road had not been built in the place agreed upon, T. closed up the road; whereupon J. B. sued him, and obtained an injunction, perpetually enjoining T. from closing up the road, and commanding him to remove the obstructions which he had placed in it. C. B. was not a party to that suit. Continuing to claim title to all of the triangle cut off by the road, but not included in the aforesaid agreement, T. took possession of the same, and J. B. then brought this suit against both C. B. and T., to compel C. B. to convey to him the legal title to all the triangle of land cut off by the road, and to enjoin T. from prosecuting a threatened action of ejectment, and from committing numerous, continuous, and petty alleged acts of trespass on the land. Held:
That the bill was good on demurrer.
That the former adjudication does not estop T. from claiming title to a part of the triangular piece of land.
That the written agreement, and not the actual location of the road, must determine what is the dividing line between the land conveyed by C. B. to T., and what he had previously agreed to convey to J. B.
That C. B. is bound to convey to J. B. only so much land as is included in the written agreement.
That, as a general rule, equity will not enjoin a mere naked trespass to realty; yet, if the acts are repeated and continuous, and so trifling in character that the damages recoverable at law for each act would be small when compared with the expense of prosecuting separate actions, equity will enjoin their threatened commission, owing to the inadequacy of legal remedy.
Appeal from Circuit Court, Randolph County.
Bill in equity by James A. Bent against P. Clarence Barnes and another. From a decree for defendants, plaintiff appeals. Affirmed.
Harding & Harding, of Elkins, for appellant.
W. E. Baker, of Elkins, for appellees.
James A. Bent was the owner of two tracts of land, rectangular in form, which touched at their respective northwest and southwest angles. P. Clarence Barnes was the owner of an adjoining tract, which terminated in a sharp triangle having its apex at the corner common to the two Bent tracts. One of Bent's tracts bordered on a public highway called the Seneca Road, and the other was separated from it, and also from the road, by the above-described triangle, across which a way was necessary for Bent to reach one of his tracts from the Seneca Road. In view of this situation, Bent procured from Barnes the following writing, viz.:
Within the time specified, Bent constructed a road across the triangle, but located it at a much greater distance from the apex of the triangle than seven rods. The triangle cut off by the road contained 60, or more, square rods, instead of 17 as in the contract stipulated. Barnes never saw the land after the road was made. The contract was executed at Cumberland Md., the place of Barnes' residence. On June 22, 1903, Barnes and his wife conveyed his tract of land to the defendant Vincenzo Trimboli, describing it by metes and bounds, but made the following exception, viz.: "Save and excepting therefrom a narrow strip triangle in form on the western end of said land which by agreement between James A. Bent and the grantors hereof executed in March, 1903, was granted for a public road to be at all times open to the proprietor of this land and the public generally." It appears that Trimboli knew where the road was, at the time he bought; but the contract between Bent and Barnes had never been recorded, and he had not seen it before he bought and paid for the land. Later, however, he seems to have been advised that the Bent road cut off more of the apex of the triangle of his land than the agreement authorized; and he then asserted claim to all of the triangle except the part described in the written agreement, and closed up the road. Bent then brought a suit to enjoin Trimboli from interfering with the road and to compel him to remove the obstructions which he had placed in it. A temporary injunction was awarded, but later dissolved by the circuit court of Randolph county, and his bill dismissed. Bent then appealed, and obtained a reversal of that decree, and a decree by this court perpetually enjoining Trimboli from interfering in any manner with his use of the road, and requiring Trimboli to remove all obstructions which he had placed in it. 61 W.Va. 509, 56 S.E. 881. Barnes was not a party to that suit. Notwithstanding the result of that suit, Trimboli, still claiming the greater part of the triangle cut off by the road, continued to make use of so much of it as lay between the road and a line parallel to it, seven rods from the apex of the triangle; and Bent brought the present suit to compel...
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