Charleston Nat. Bank v. Thomas

• Decision Date: 14 October 1958
• Docket Number: No. 10989,10989
• Court: West Virginia Supreme Court
• Parties: The CHARLESTON NATIONAL BANK and Robert E. Kelly, Jr., Trustees, etc. v. Frank K. THOMAS.

Page 184

105 S.E.2d 184

143 W.Va. 788

The CHARLESTON NATIONAL BANK and Robert E. Kelly, Jr., Trustees, etc. v. Frank K. THOMAS.

No. 10989.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 9, 1958.

Decided Oct. 14, 1958.

Syllabus by the Court

1. 'Relief by mandatory injunction will be given only where the right of the applicant is clear and the necessity urgent.' Point 1, Syllabus, Lamp v. Locke, 89 W.Va. 138 .

2. 'The rule that equity will retain jurisdiction once assumed, and dispose of all matters in litigation is limited to cases where the jurisdiction has been rightfully invoked. An equitable right must be both averred and proved before a purely legal right will be adjudicated by a court of chancery.' Point 3, Syllabus, Wyoming Coal Sales Co. v. Smith-Pocahontas Coal Co., 105 W.Va. 610 [144 S.E. 410, 62 A.L.R. 740].

Mahan, White, Higgins & Graney, Stanley Higgins, Jr., Fayetteville, for appellants.

Karl P. Warden, Fayetteville, Myron R. Renick, Charleston, for appellee.

GIVEN, Judge.

Plaintiffs, The Charleston National Bank and Robert E. Kelly, Jr., Trustees under the last will and testament of Robert E. Kelly, instituted a proceeding in the Circuit Court of Fayette County, alleging that defendant, Frank K. Thomas, had entered certain enclosures, cut, destroyed, or removed, certain fencing, gates and trees, and threatened to continue such trespasses, and prayed that defendant be permanently enjoined from further such trespasses. Defendant filed his answer, denying the material allegations of the bill, any, by cross-bill, alleged, in effect, that the land in question consisted of Fourth Street of a subdivision, shown on a map duly recorded, and in which subdivision defendant then owned a number of lots, acquired by him by virtue of certain deeds, and prayed that plaintiffs be required to remove certain obstructions from Fourth Street, and enjoined from closing the street or obstructing the use thereof. The court refused plaintiffs any relief and, pursuant to the prayer of the cross-bill, mandatorily directed that they remove certain obstructions from Fourth Street, or, in the alternative, restore the grade of Fourth Street, and enjoined plaintiffs from 'closing said Fourth Street to vehicular traffic and from obstructing the free flow of traffic across and along said Fourth Street'.

Plaintiffs' predecessors in title, about 1945, subdivided into lots, streets and alleys, a part of a tract of land of 143.57 acres, calling the subdivision Wolf Creek Gardens. The subdivision contained ninety five lots. A map or plat of the subdivision was recorded in the office of the Clerk of the County Court of Fayette County. The subdivision is not within any incorporated area, and no public authority has exercised any right or control over Fourth Street, or in any manner accepted dedication thereof. Subsequent to the recording of the map, a number of lots were sold and conveyed to various purchasers, including Lots 75, 76, 77, 78, 79, 80, 93, 94 and 95, to defendant. Each of the deeds to the various purchasers, including defendant, described the lot or lots thereby conveyed by reference to the recorded map and contained this further provision or grant: '* * * together with the right to use in common with other ownrs of lots, streets, alleys and ways, as shown on said map * * *'.

Fourth Street intersects Fifth Street at the southwesterly boundary line of the subdivision, near a public road, and extends northwesterly to the northern boundary line of the subdivision. Fifth Street extends rom that intersection, in a somewhat semicircular manner, through a portion of the subdivision until it again intersects Fourth Street near the point where Fourth Street reaches the northwesterly boundary line of the subdivision. Fifth Street extends to a public road, and appears to be the shortest, if not the only practical, way to any public road from the lots situated in that portion of the subdivision here material. Lot 75 is the only lot in the subdivision owned by defendant which abuts on Fourth Street. It also abuts on Fifth Street. Defendant has unobstructed access of Fifth Street, from each of his lots to the nearest public road.

Defendant uses the lots owned by him in connection with the operation of the Fayette Airport, operated by him. It is his contention that by his purchase of the lots in the subdivision, especially by the terms or language of the grant, he acquired an unlimited right to have open, unobstructed and unlimited use of all the streets and ways shown on the recorded map of the subdivision, and especially the use of Fourth Street, and that such use is needed in connection with the operation of the airport and is of substantial value to his lots, and to his operation of the airport.

Except as to three lots, not involved in this proceeding, and Lot 75, owned by defendant, plaintiffs now own the remaining twenty six lots fronting on Fourth Street, and own other lots adjacent to those fronting on Fourth Street. On some of these lots plaintiffs, or their predecessors, have, since the conveyance to defendant, constructed a barn, a lodge, fences, gates and two farm ponds, and, since such construction, have used such lots and a portion of Fourth Street for farm and recreational purposes. Some of the fences and gates, and one of the ponds, extend across Fourth Street. The other pond extends into that street to such an extent as to materially interfere with any vehicular use thereof. These are the obstructions complained of. They are approximately 1,100 feet northwesterly from Lot 75, or in a direction away from the public road. They do not interfere with travel directly from any portion of any lot owned by defendant to the public road, and have remained on or over Fourth Street since about 1952. Plaintiffs contend that the owners of the subdivision have abandoned that part of the subdivision plan consisting of the lots owned by them abutting on Fourth Street and certain other adjacent lots, and have reconverted the same, and the adjacent part of Fourth Street, to private use, and that such abandonment entitles them to close Fourth Street; that the use of Fourth Street by defendant is not needed, or of value to defendant in connection with the ownership of the lots purchased by him; and that the closing of Fourth Street violates no right of defendant as to such ownership.

In denying relief to the plaintiffs, the trial court necessarily found that there existed no effective abandonment by the plaintiffs, or predecessors, such as would justify the closing by them of Fourth Street. Assuming, not deciding, that such an abandonment may be made in the circumstances of such a grant of an easement or way through or over a subdivision, where no public acceptance is involved, we think the finding amply supported by the evidence. There is no doubt that plaintiffs have used a portion of the lots of the subdivision, and a part of Fourth Street, for farming purposes since 1952. It is just as clear, however, that defendant has continually...