Berkeley Development Corp. v. Hutzler

• Decision Date: 16 November 1976
• Docket Number: No. 13641,13641
• Citation: 229 S.E.2d 732,159 W.Va. 844
• Court: West Virginia Supreme Court
• Parties: BERKELEY DEVELOPMENT CORP. v. Hunter HUTZLER.

Page 732

229 S.E.2d 732

159 W.Va. 844

BERKELEY DEVELOPMENT CORP. v. Hunter HUTZLER.

No. 13641.

Supreme Court of Appeals of West Virginia.

Nov. 16, 1976.

Syllabus by the Court

1. The burden of proving an easement rests on the party claiming such right and must be established by clear and convincing proof.

2. An easement by prescription and a way of necessity are distinguished one from the other since they arise by virtue of different and mutually exclusive conditions.

3. 'The open, continuous and uninterrupted use of a road over the land of another, under Bona fide claim of right, and without objection from the owner, for a period of ten years, creates in the user of such road a right by prescription to the continued use thereof.' Syllabus pt. 2, Post v. Wallace, 119 W.Va. 132, 192 S.E. 112 (1937).

4. Where one owns and conveys a portion of his land which is completely surrounded by the retained land or partially by the land of the grantor and the land of others, without expressly providing a means of ingress and egress, and where there is no other reasonable means of access to the granted land, the law implies an easement in favor of the grantee over the retained portion of the original land of the grantor.

Martin & Seibert, Clarence E. Martin, Jr., and William Richard McCune, Jr., Martinsburg, for appellant.

Radosh & Askin and Jerome Radosh, Martinsburg, for appellee.

BERRY, Chief Justice:

The appellant, Hunter Hutzler, seeks a reversal of a judgment of the Circuit Court of Berkeley County permanently enjoining him from entering on or across the lands of the appellee, Berkeley Development Corporation.

The parties are owners of adjacent tracts of real estate located in Gerrardstown District, Berkeley County, West Virginia. In 1972, the Berkeley Development Corporation acquired its 550 acre tract and began to develop it as a recreational, residential subdivision. By deed dated August 10, 1943, Mr. Hunter Hutzler purchased his 105 acre tract which, subsequent to its acquisition, has been used primarily as a source of timber or pulp wood. Hutzler does not reside on this land.

In 1974, the Berkeley Development Corporation initiated an action in the Circuit Court of Berkeley County to obtain an injunction against Hutzler to prohibit Hutzler from entering on the 550 acre tract and from interfering with the surface of that land. The appellee's complaint recited that Hutzler had entered on the land with equipment to cut trees and grade the surface. By way of defense to the appellee's action, Hutzler contended that he had a prescriptive easement, or, in the alternative, a private way of necessity across an existing road which ran from his land over the plaintiff's land and onto a public road.

At trial, it was stipulated that the tracts of the respective parties shared a common source of title, the two tracts having been originally owned by one Moses S. Grantham. It was further stipulated there were no express easements in any of the conveyances in the line of title of either party.

On behalf of the Berkeley Development Corporation, Mr. Gilbert R. Clarke, the organization's president, testified that prior to purchasing the 550 acres he spent a great deal of time examining the property. He stated that he walked over the common boundary and that he saw a faint trail which he assumed to be a logging trail. He stated that the inspection revealed no indication of any travel on the trail and that there was substantial growth in the way. Mr. Clarke also observed that a small stream which crossed the trail had eroded its banks making passage impossible. It was Mr. Clarke's estimate that the trail had not been used for twelve to fifteen years prior to his inspection.

In advance of its purchase, the appellee had the 550 acre tract and some of the surrounding properties surveyed by a licensed land surveyor, Galtjo Geertsema. Geertsema, called as a witness on behalf of the appellee, described his survey and indicated that he observed the road in question at the time. Geertsema described the road as an old road, averaging approximately ten feet wide and running a thousand feet over the property of the Berkeley Development Corporation, from the point where it crossed the common boundary. The surveyor indicated that he did not observe any evidence of the use of the road although he stated that it was passable.

With reference to alternate ways of ingress and egress, neither Clarke or Geertsema could say with any degree of certainty that there were other roads from the Hutzler property to a public road.

The evidence adduced on behalf of the appellant was that the 105 acre tract had previously been an orchard and for a number of years the roadway in question was used by Hutzler's predecessor in title as a route for hauling fruit to a public road. Walker Brannon, the son of one of the appellee's predecessors in title, testified that the road had been in continuous use to his recollection for more than seventy years. Brannon stated that the road was first used to haul fruit and later to haul timber from the Hutzler property. Brannon indicated that the road followed substantially the same route as it did in 1901 and was in substantially the same condition except for the natural vegetative growth in the roadway. Brannon further testified that there was no other means of access to the Hutzler property except across a precipitous and difficult route which went across the property of others and which was passable only by horse and rider.

The appellant, Hunter Hutzler, testified that prior to his purchase of the tract, he had worked on the orchard and had hauled fruit over the road in question for a number of years. Hutzler indicated that the road had been used for a period of fifty years to his recollection, with the acquiescence of the previous owners of the Berkeley Development tract. In addition, Hutzler had, himself, hauled lumber across the road in the years following his purchase of the orchard tract. Finally, the appellant indicated that the road in question was the only means to get in and out of his property.

Elwood Hutzler, the son of the appellant, confirmed his father's testimony concerning the use of the road, the acquiescence of the previous owner of the adjacent land and the absence of any other way to a public road. In addition, Elwood Hutzler stated that he had personally used the road during the previous year.

On the evidence adduced, the circuit court held that the appellant had neither a prescriptive easement nor a way of necessity across the Berkeley Development tract. In accordance with this ruling, the court permanently enjoined Hutzler from entering on or across the appellee's land. Hutzler contends that the trial court erred in holding that he did not have an easement or right-of-way either by prescription or necessity over the land of the appellee. The appellee counters by arguing that the trial court was correct, but if either a prescriptive easement or a way of necessity was established, it was lost by virtue of the fact that the appellee obtained the property in question as a bona fide purchaser for value without notice of the existence of any easement over the land.

The burden of proving an easement rests on the party claiming such right and must be established by clear and convincing proof. Fanti v. Welch, 152 W.Va. 233, 161 S.E.2d 501 (1968); Beckley National Exchange Bank v. Lilly, 116 W.Va. 608, 182 S.E. 767 (1935); Crosier v. Brown, 66 W.Va. 273, 66 S.E. 326 (1909); 25 Am.Jur.2d Easements and Licenses § 118 (1966).

It is abundantly clear that the appellant established, by the requisite degree of proof in this case, an easement over the land of the appellee. This conclusion is supported by the evidence presented by both the appellant and the appellee.

First, there is no doubt about the existence of the roadway in question. While ...