Cobb v. Daugherty

• Decision Date: 19 April 2010
• Docket Number: No. 35015.,35015.
• Citation: 225 W.Va. 435,693 S.E.2d 800
• Parties: Ronald D. COBB and Deborah Herrald Cobb, Plaintiffs below, Appelleesv.Thomas S. DAUGHERTY and Christine A. Daugherty, f/k/a Christine Klapproth, Defendants below, Appellants.
• Court: West Virginia Supreme Court

225 W.Va. 435

693 S.E.2d 800

West Virginia.

Ronald D. COBB and Deborah Herrald Cobb, Plaintiffs below, Appelleesv.Thomas S. DAUGHERTY and Christine A. Daugherty, f/k/a Christine Klapproth, Defendants below, Appellants.

No. 35015.

Supreme Court of Appeals of

Submitted Feb. 10, 2010.

Decided April 19, 2010.

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Syllabus by the Court

1. “The law does not favor the creation of easements by implied grant or reservation.” Syllabus point 1 Stuart v. Lake Washington Realty, 141 W.Va. 627, 92 S.E.2d 891 (1956).

2. “The burden of proving an easement rests on the party claiming such right and must be established by clear and convincing proof.” Syllabus point 1 Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976).

3. There are two forms of implied easements: an easement implied by necessity (which in West Virginia is called a “way of necessity”), and an easement implied by a prior use of the land (also called an easement implied from a “quasi-easement”).

4. To establish an easement implied by necessity (which in West Virginia is called a “way of necessity”), a party must prove four elements: (1) prior common ownership of the dominant and servient estates; (2) severance (that is, a conveyance of the dominant and/or servient estates to another); (3) at the time of the severance, the easement was strictly necessary for the benefit of either the parcel transferred or the parcel retained; and (4) a continuing necessity for an easement.

5. “If one has a reasonable outlet over his own property, he cannot exact a more convenient way as of necessity over the premises of another.” Syllabus point 2 Dorsey v. Dorsey, 109 W.Va. 111, 153 S.E. 146 (1930).

6. To establish an easement implied by a prior use of the land, a party must prove four elements: (1) prior common ownership of the dominant and servient estates; (2) severance (that is, a conveyance of the dominant and/or servient estates to another); (3) the use giving rise to the asserted easement was in existence at the time of the conveyance dividing the property, and the use has been so long continued and so obvious as to show that the parties to the conveyance intended and meant for the use to be permanent; and (4) the easement was necessary at the time of the severance for the proper and reasonable enjoyment of the dominant estate.

George A. Daugherty, Esq., Daugherty Law Office, Dunbar, WV, for the Appellants.

O. Gay Elmore, Jr., Esq., Elmore & Elmore, Charleston, WV, for the Appellees.

KETCHUM, Justice:

This action concerning the law of easements by implication-specifically, easements implied by necessity and easements implied by prior use-is before this Court upon the appeal of Thomas S. and Christine A. Daugherty from the December 22, 2008, order of the Circuit Court of Kanawha County, West Virginia, denying their renewed motion for judgment as a matter of law and their alternative motion for a new trial.

The appellees, Ronald D. and Deborah H. Cobb, adjoining neighbors of the Daughertys, filed an action in the Circuit Court alleging inter alia, the right to an easement by implication across the Daughertys' property. According to the Cobbs, an implied easement in the form of a roadway extends across the Daugherty property to the Cobb property. The Cobbs contend the easement was used in the past as access to a small building near their swimming pool. They also contend it was occasionally used to bring in construction and service vehicles and materials and supplies for the Cobbs' various home improvement projects. At the conclusion of the September 2008 trial, the jury found that the Cobbs established a right to an easement by implication across the Daughertys' property by clear and convincing evidence.

Although a number of trial errors are raised by the Daughertys, we granted this appeal upon the sole question of whether the Cobbs established an easement implied by necessity, and/or an easement implied by a prior use of the Daughertys' land.¹

Upon a thorough review of the record and the law in this area, this Court is of the opinion that the Circuit Court committed error in submitting the implied easement question to the jury, rather than granting the Daughertys' motion for judgment as a matter of law. Consequently, the December 22, 2008, order of the Circuit Court of Kanawha County is reversed, and judgment is entered in favor of the appellants, Thomas S. and Christine A. Daugherty, as a matter of law.

I.Factual Background

This action concerns three adjacent lots in the South Hills area of Charleston, West Virginia, namely, Lots 3, 4 and 5, Block 28, South Charleston Improvement Company Addition. The Cobbs reside on Lot 3, and the Daughertys reside on Lot 5. The subject of this litigation is Lot 4, a vacant lot between the parties' homes. The record demonstrates that all three lots front on Circle Road and that the Cobbs have access to their home on Circle Road by way of a driveway, an access completely separate from the alleged easement. Nevertheless, the Cobbs insist that they have an easement by implication, either by necessity or by prior use, across the Daughertys' adjoining lot leading to a small building near their swimming pool located on the middle to rear portion of their land.

It is undisputed that no explicit easements of any kind, other than those for utilities such as water and electricity, are recorded in the chain of title of Lots 3, 4 and 5 for a way, or road, across Lot 4. The question we must resolve is whether an easement for a way or road across Lot 4 is implicit in the circumstances of this case.

The chain of title shows that Lot 4 was divided in half by means of a boundary line perpendicular to Circle Road. Currently, the south side of Lot 4 is adjacent to and owned by the Cobbs. The north side of Lot 4 is adjacent to and owned by the Daughertys. Along the Daughertys' side of Lot 4, the curb of Circle Road is interrupted by a small concrete ramp described below as a “cut-in.” According to the Cobbs, a way or drive begins at the cut-in, traverses the Daughertys' half of Lot 4, and extends across the Cobbs' half of Lot 4 toward the middle or rear of Lot 3 (owned by the Cobbs). The record is unclear how far the way or drive extends onto the Cobb property: the Cobbs indicated below that the way or drive extends to Lot 3, but a survey map in the record dated October 14, 2005, depicts the way or drive as terminating at a small building on the Cobbs' half of Lot 4.

In 1979, the Cobbs purchased Lot 3 and constructed a home. In 1980, Larry and Diane Wilder conveyed Lot 4 to Robert L. Hudson, Sr. et al., at which time the cut-in and drive crossing Lot 4 were allegedly established. Soon after, in 1981, Hudson conveyed all of Lot 4 to the appellees, Ronald D. and Deborah H. Cobb. At that point, the Cobbs owned Lot 3 and the entirety of Lot 4.

In 1983, the Cobbs divided Lot 4 and conveyed the north half of Lot 4 to their neighbors and owners of Lot 5, David and Nancy Darrah. There is nothing in the record to show, at the time Lot 4 was divided in 1983, that a way or road had been continuously used on any portion of Lot 4. Subsequently, in 1984, the Cobbs also conveyed the south half of Lot 4 to the Darrahs. Nothing in the chain of title of record indicates that the Cobbs retained any interest in Lot 4 at that point. No easements were recorded, and the entirety of Lot 4 belonged to the Darrahs.

In 1987, the Cobbs purchased the south half of Lot 4 (the half bordering their Lot 3) back from the Darrahs in order to construct a swimming pool next to Lot 3. A small building was also constructed near the swimming pool. Since 1987, the Cobbs have been the sole owners of Lot 3 and the south half of Lot 4.

The Daughertys acquired the north half of Lot 4, in addition to their interest in Lot 5, from the Darrahs in 1994. Since 1994, the Daughertys have been the sole owners of the north half of Lot 4, as well as Lot 5.

The Cobbs contend that an easement by implication across the Daughertys' half of Lot 4 is needed as the only practical access for service vehicles to the middle or rear portion of their property for various home improvement projects. The Cobbs assert that they used and maintained the drive or approach across the Daughertys' half of Lot 4 for that purpose in the past, and that the drive was apparent when the Daughertys purchased the property in 1994.

The Daughertys contend that their title examination revealed nothing about an easement for the alleged drive and that, beyond observing the cut-in on Circle Road, they saw no drive across their property. The Daughertys assert that, nevertheless, they gave permission to the Cobbs to cross the north half of Lot 4 from time to time.

II.Procedural Background

In August 2005, the Cobbs filed a complaint in the Circuit Court of Kanawha County against the Daughertys seeking injunctive and declaratory relief with regard to the alleged implied easement. The Cobbs' theory of easement by implication appeared in the second amended complaint filed in June 2006. ² As the litigation proceeded, the Daughertys' motion for summary judgment was denied, and the action went to trial in September 2008. The Daughertys' motion for a directed verdict during the trial was also denied by the Circuit Court.

On September 12, 2008, the jury found that the Cobbs established a right to a generic “easement by implication” over the Daughertys' portion of Lot 4 by clear and convincing evidence. The Daughertys renewed their motion for judgment as a matter of law and, in the alternative, filed a motion for a new trial. Following a hearing, the Circuit Court denied the motions, as reflected in the order of December 22, 2008.

Thereafter, this Court entered an order granting an appeal upon the assignment of error relating to whether, as a matter of law, the Cobbs introduced evidence sufficient to establish an easement for a way or road across the Daughertys' half of Lot 4,...