Derifield v. Maynard

• Decision Date: 25 April 1944
• Docket Number: 9463.
• Parties: DERIFIELD et al. v. MAYNARD et al.
• Court: West Virginia Supreme Court

30 S.E.2d 10

126 W.Va. 750

DERIFIELD et al. v. MAYNARD et al.

No. 9463.

Supreme Court of Appeals of West Virginia.

April 25, 1944

F F. Scaggs, of Wayne, for appellants.

M J. Ferguson, of Wayne, for appellees.

FOX Judge.

The plaintiffs, the owners, in part, of a tract of seventy acres of land, situated on Missouri Branch, a tributary of the right hand fork of Twelve-Pole Creek, in Wayne County, inherited by them from their father, D. C Derifield, to whom it had been conveyed in the year 1889 instituted their suit and filed their bill in equity in the Circuit Court of Wayne County, seeking to enjoin the defendants from "trespassing upon the lands of these plaintiffs, or from constructing or attempting to construct any passway or road over plaintiffs' land; and further restrained and enjoined from in any manner trespassing upon or injuring the plaintiffs' land; or from moving said saw mill over plaintiffs' land; or from removing any of the manufactured products from said mill over plaintiffs' land, or any part thereof; or from cutting any timber, removing any fence or otherwise interfering with the quiet enjoyment or possession of these lands by these plaintiffs." The timber referred to in the prayer of their bill, quoted above, is that standing and being on a tract of six hundred acres of land, sold to the defendants by verbal contract by one Byron Smith, which had formerly been the property of the Huntington Development and Gas Company, and a temporary injunction was awarded, as prayed for in the bill, on the 28th day of April, 1942.

Both the seventy-acre tract owned by the plaintiffs and the six hundred-acre tract from which the defendants claim the right to remove the timber, lie on Missouri Branch, and the seventy-acre tract lies below the six hundred-acre tract, and between that tract and State Highway No. 52, which, at that point, follows the general course of Twelve-Pole Creek. The record clearly shows that for fifty years or more a road up Missouri Branch, closely approximating the bed of the stream, had been used by various persons living on the branch for foot, horse and vehicle travel, not including automobiles. Some timber was transported down the creek through the seventy-acre tract, in some instances with the consent of the owners, and for which compensation was paid. This travel seems to have decreased in recent years. The road up the branch appears to have been used as a "short cut" from the road following Twelve-Pole Creek to the road along the ridge, which road led from said creek, below the mouth of Missouri Branch, and extended around the water-shed of Missouri Branch for some distance, and then down Milam's Creek to the left fork of Twelve-Pole Creek, thus making a connecting link between the right and left forks of said creek. There is nothing in the record showing that the road up Missouri Branch had ever been established, claimed or recognized as a public road, and it is clear that no work was ever done thereon by original construction, repair or otherwise, by any public authority. In short, all that does appear clearly is, that over a long period of time people had used said road at various times and for various purposes; but there is no showing that any such use was under a claim of right thereto on the part of any person so using the same, or that, with any knowledge of any such claim of right, plaintiffs acquiesced therein.

The answer of the defendants sets up, in substance and effect, that they purchased the timber on the six hundred-acre tract, with the understanding that they would be entitled to remove the same over the road down Missouri Branch; that there was no other feasible or practical route for such removal; that to deprive them of such right of removal would destroy the value of the timber purchased; and they deny that they have trespassed or will trespass on plaintiffs' land, because they aver that the road down Missouri Branch is a public road; but, if not a public road, that they have acquired, through their predecessors in title, a prescriptive right to use said road for the removal of the timber purchased by them.

Testimony was taken in the case, and on the final hearing the temporary injunction was dissolved by decree entered June 9, 1942, and the plaintiffs' bill dismissed. The pertinent part of the court's decree reads as follows:

"The Court is further of the opinion and so finds that the road in question over the 70 acre tract is not a public road but is a private road acquired by prescription which private road is an easement running with the land on which the defendants have a contract to cut and remove the timber.

Upon consideration whereof the court is of opinion that the injunction heretofore awarded in this cause ought to be wholly dissolved, for the reason that the court is of opinion that the right of way over the land of the plaintiffs by prescription has been established for the use of the land contracted to be purchased by defendants from Byron Smith who purchased said land from the Huntington Gas & Development Company, a corporation. It is therefore adjudged, ordered and decreed that the said injunction be and the same is hereby wholly dissolved, and the plaintiffs' bill be dismissed.

It is further adjudged, ordered and decreed that the plaintiffs shall have the right to maintain reasonable agricultural fence across

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