Cottrell v. Nurnberger

Citation47 S.E.2d 454
Decision Date30 March 1948
Docket NumberC. C. No. C729.
CourtSupreme Court of West Virginia
PartiesCOTTRELL et al. v. NURNBERGER et al.

47 S.E.2d 454


C. C. No. C729.

Supreme Court of Appeals of West Virginia.

March 30, 1948.

[47 S.E.2d 454]

Concurring Opinion April 21, 1948.

Syllabus by the Court.

1. Valid restrictions upon the use of land, imposed upon the servient estate of the vendor in favor of the dominant estate of the vendee, constitute an easement in the land; but such easement can not arise from an oral agreement as to which there has been no complete or part performance by the vendee or no fraud or inequitable conduct upon the part of the vendor upon which to base equitable estoppel.

2. An oral agreement to create an easement in the nature of restrictions upon the use of land of the vendor in favor of the vendee is within the Statute of Frauds; and the mere failure or refusal of the vendor to perform such agreement, unaccompanied by other acts or conduct on his part, does not estop him to assert the statute as a defense to the claim of the vendee, or his successor, to such easement.

FOX, J., and RILEY, P., dissenting.

Certified from Circuit Court, Kanawha County.

Suit for injunction by G. J. Cottrell, Jr., and others against J. S. Nurnberger and others. The defendants' demurrer to bill of complaint was overruled by the circuit court, which on its own motion certified its ruling to the Supreme Court of Appeals.

Ruling reversed.

Townsend & Townsend, W. J. Thompson, and John T. Keenan, all of Charleston, for plaintiffs.

Mohler, Peters & Snyder and H. L. Snyder, all of Charleston, for defendants.


This suit was instituted in the Circuit Court of Kanawha County by G. J. Cottrell, Jr., and eight other persons who own lots in Falls View Addition, in Jefferson District, Kanawha County, as plaintiffs, to enjoin the defendants, J. S. Nurnberger, Ray Wheeler and R. H. Harrison, their successors, grantees and assigns, from using a lot designated as Lot No. 45 of that addition except as a playground and a recreational area, and for other community purposes, for the enjoyment and the benefit of the plaintiffs and other lot owners, and to obtain a decree imposing upon the foregoing lot, for their benefit, a covenant to restrict its use to those purposes.

To the bill of complaint the defendants filed their written demurrer which the court overruled and, on its own motion, certified its ruling to this Court.

The material allegations of the bill of complaint, to the extent that it is pertinent to relate them here, set forth the following facts which upon demurrer are taken as true.

The defendant, Nurnberger, the owner of a tract of land containing 6.2 acres, situate on the waters of Coal River at Lower Falls Beach in Jefferson District, Kanawha County, in May, 1940, subdivided it into lots,

[47 S.E.2d 455]

streets and alleys and designated the subdivision so established as the "Falls View Addition at Lower Falls on Coal River" on a map which was recorded in the office of the clerk of the county court of that county. This addition was planned and laid out by him, before the plaintiffs acquired their particular lots, to provide suitable building lots for substantial summer homes. Part of the addition was designated and reserved for bathing, boating and picnic uses, for a playground, and for other community purposes, to provide the purchasers and their families the full benefit and enjoyment of the lots and the homes to be constructed on them by the owners of such lots. He subsequently sold the lots in the addition now owned by the respective plaintiffs to them or their predecessors in title and, in making the sales, represented to the various purchasers that, in addition to the beach and playground areas shown on the map, a level lot comprising about an acre of land, located in the center of the addition and designated as Lot No. 45, was reserved solely and exclusively for playground, recreational and other community purposes for the use and benefit of the purchasers, and that he would construct a well and a well house on that lot for their common use and benefit. These representations were made by him or his authorized agents, to the respective plaintiffs or their predecessors in title, with the intent of inducing them to buy the lots at a higher price; and the various purchasers, relying upon the representations, bought the lots, paid for them a higher price than they otherwise would have paid, and subsequently entered into possession of Lot No. 45 which since 1941 has been used as a playground and a recreational area and for other community purposes.

The plaintiffs bought the particular lots owned by them from the defendant Nurnberger, or his successors in title, and in each instance the individual plaintiff relied on the foregoing representation and paid to him or his successors in title a price in excess of that which each plaintiff otherwise would have paid for the lots so purchased. The defendant, Nurnberger, is the owner of the lot upon which the plaintiffs seek to impose the restrictive covenant and, according to the allegations of the bill of complaint, notwithstanding the "promises, representations and restrictions" made by him in connection with the sales of the lots, he has entered into negotiations with the defendants, Wheeler and Harrison, for the sale of that lot to them to be used as a hotel site. The defendants have undertaken the construction of a hotel upon the lot which will deprive the plaintiffs of their use of it as a playground and recreational area and for other community purposes and will cause irreparable damage to their lots and summer homes.

The plaintiffs charge that the defendants, with full knowledge of the "promises, covenants and restrictions" made by the defendant, Nurnberger, in connection with the sales of the lots owned by the plaintiffs, have willfully, intentionally and fraudulently violated and refused to comply with them and that as a result they will be irreparably damaged unless the defendants are restricted from violating "said promises, covenants and restrictions" and that they are without an adequate remedy at law.

A copy of the recorded map of the addition is filed as an exhibit with the bill of complaint. It shows a large space or section south of the various lots of the plaintiffs and between them and Coal River on which the southern line of the addition abuts which is designated as Beach and Playground. It also indicates Lot No. 45 by that number or designation without any legend to signify that it is reserved for or devoted to any particular use.

The prayer of the bill of complaint is that the defendants, their successors, grantees and assigns, be permanently enjoined and restrained from using Lot No. 45 of the addition other than for a playground, recreational area and community purposes for the benefit of the plaintiffs, that a decree be entered imposing a covenant restricting its use to those purposes and for their benefit, and for general relief.

The questions certified to this Court are: (1) May an easement in land be created by parol; (2) may a license to use land by the licensee be revoked at will by the licensor; (3) are the defendants estopped to assert

[47 S.E.2d 456]

the defense of the Statute of Frauds; and (4) do the plaintiffs have an adequate remedy at law?

It should be observed that the statements mentioned and contained in the bill of complaint, laid to the defendant Nurnberger, his agents and successors in title, and which were relied upon by the plaintiffs to restrict his use of the lot in question to a playground, recreational area, and other community purposes for the benefit of the plaintiffs, are not alleged to have been incorporated in any deed or other writing, and also that these statements are characterized as representations, promises, covenants and restrictions in various parts of the bill of complaint. Whether they, in effect, constitute a representation or a promise will be discussed and dealt with later in this opinion.

It is obvious that the right claimed and sought to be enforced by the plaintiffs, if it in fact exists, is created by and arises from an easement and not by virtue of a license, and as the decisive questions in this case involve the method of creating a valid easement and the availability to the defendants of the defense of the Statue of Frauds in connection with a verbal agreement or arrangement, it is unnecessary to discuss or answer the second and fourth questions presented by the certificate. Whether the plaintiffs are entitled to the equitable relief which they seek depends, in the first instance, upon the existence of a valid easement which restricts the use of the lot by the defendants to the extent claimed by the plaintiffs. If no such easement exists it is necessary to determine whether the verbal statements of the defendant Nurnberger, or his agents and successors in title, and the conduct of the plaintiffs in reliance upon them, constitute an estoppel which deprives the defendants of the right to set up the Statute of Frauds as a defense to the claim of the plaintiffs.

Though the distinction between an easement and a license may, in a particular instance, be difficult to determine and has given rise to many conflicting decisions involving that question, the essential characteristics of the two are materially different. An easement creates an interest in land; a license does not, but is a mere per mission or personal and revocable privilege which does not give the licensee any estate in the land. 1 Thompson on Real Estate, Permanent Edition, Section 318; Washburn on Easements and Servitudes, 5. "A license differs very materially from an easement in that it constitutes no interest in land whatever, and is not real estate, but is a mere authority, usually revocable at pleasure and not transferable, to do a certain act or series of acts, for example, to hunt, upon the lands of another, without conferring any interest in the land itself. On the other hand, an easement is the very opposite of this, being an...

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