Canei v. Culley

• Decision Date: 03 November 1988
• Docket Number: No. 17483,17483
• Citation: 179 W.Va. 797,374 S.E.2d 523
• Parties: Margaret CANEI, George H. Canei, Ronald E. Richards, Sr., Elizabeth A. Richards, Ronald E. Richards, Jr., Mihwa S. Richards, George Gerbo, and Millicent Gerbo v. William Boyd CULLEY and Thelma I. Culley.
• Court: West Virginia Supreme Court

Page 523

374 S.E.2d 523

179 W.Va. 797

Margaret CANEI, George H. Canei, Ronald E. Richards, Sr. Elizabeth A. Richards, Ronald E. Richards, Jr. Mihwa S. Richards, George Gerbo, and Millicent Gerbo v. William Boyd CULLEY and Thelma I. Culley.

No. 17483.

Supreme Court of Appeals of

West Virginia.

Nov. 3, 1988.

Syllabus by the Court

1. "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." Syllabus Point 4, Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976).

2. "To establish an easement by prescription there must be continued and uninterrupted use or enjoyment for at least ten years, identity of the thing enjoyed, and a claim of right adverse to the owner of the land, known to and acquiesced in by him; but if the use is by permission of the owner, an easement is not created by such use." Syllabus, Conley v. Conley, 168 W.Va. 500, 285 S.E.2d 140 (1981).

3. "A finding of fact made by a trial chancellor or by a trial court sitting in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by this Court on appeal unless the evidence plainly and decidedly preponderates against such finding." Syllabus Point 1, McElwain v. Wells, 174 W.Va. 61, 322 S.E.2d 482 (1984).

Lawrence L. Manypenny, Jordan, Manypenny & Adams, New Cumberland, for Margaret Canei.

Donald C. Sinclair, II and James Sellitti, Weirton, for Wilmon Boyd Culley.

PER CURIAM:

This is an appeal by George and Millicent Gerbo, two of the plaintiffs below, from an Order of the Circuit Court of Hancock County, dated October 2, 1985, denying the plaintiffs' request that the circuit court enjoin the defendants from restricting the use of a right-of-way easement located upon the lands of the defendants. We affirm the circuit court.

The plaintiffs filed a complaint in November, 1981 alleging an easement by prescription and a way of necessity over the defendants' property. The plaintiffs later filed an amended complaint in which they claimed ownership of the property in question. The case was tried to the court without a jury, and the circuit court issued findings of fact and conclusions of law. The plaintiffs raise four assignments of error, each of which will be discussed.

The plaintiffs assert that the trial court erred in finding that they did not have a way of necessity. We disagree. A way of necessity is an easement founded on an implied grant or implied reservation. Crosier v. Brown, 66 W.Va. 273, 66 S.E. 326 (1909). A way of necessity usually arises when there is a conveyance of a part of a tract of land such that either the part conveyed or the part retained has no reasonable access to the outside. Derifield v. Maynard, 126 W.Va. 750, 754, 30 S.E.2d 10, 12 (1944).

In Syllabus Point 4 of Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976), we stated:

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.

Obviously, if another means of access exists, although less convenient or more expensive to develop, no way of necessity arises. One having reasonable outlet over his own property could not claim easement of way over another's premises on the ground of convenience. Dorsey v. Dorsey, 109 W.Va. 111, 153 S.E. 146 (1930). A landowner is not entitled to an implied grant or reservation of right of way by necessity where he had another reasonably convenient outlet from his property to a public highway. Post v. Wallace, 119 W.Va. 132, 192 S.E. 112 (1937).

In this case, no easement of necessity arises over the defendants' property because the parcel owned by the Caneis abuts the public road. Therefore, another means of access to the property exists, and the fact that such means is less convenient or more expensive to develop is immaterial. We find no error in the circuit court's ruling.

The plaintiffs claim that they are entitled to a prescriptive easement over the property in question. The essential elements for obtaining a prescriptive easement were stated in the Syllabus of Conley v. Conley, 168 W.Va. 500, 285 S.E.2d 140 (1981) "To establish an easement by prescription there must be continued and uninterrupted use or enjoyment for at least ten years, identity of the thing enjoyed, and a claim of right adverse to the owner of the land, known to and acquiesced in by him; but if the use is by permission of the owner, an easement is not created by such use." Syl. pt. 1, Town...