Fanti v. Welsh, 12660

• Decision Date: 04 June 1968
• Docket Number: No. 12660,12660
• Citation: 161 S.E.2d 501,152 W.Va. 233
• Court: West Virginia Supreme Court
• Parties: Lawrence D. FANTI et al. v. James A. WELSH et al.

Page 501

161 S.E.2d 501

152 W.Va. 233

Lawrence D. FANTI et al. v. James A. WELSH et al.

No. 12660.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1967.

Decided June 4, 1968.

Syllabus by the Court

1. A landowner who asserts the right to an easement by prescription over the land of another must establish such right by clear and convincing proof.

2. 'In order to establish a right-of-way by prescription, all of the elements of prescriptive use, including the fact that the use relied upon is adverse, must appear by clear and convincing proof.' Point 2, Syllabus, Beckley National Exchange Bank v. Lilly, 116 W.Va. 608 (182 S.E. 767, 102 A.L.R. 462).

3. 'Where questions of fact are referred to and passed upon by a commissioner, and the findings of the commissioner are overruled and disaffirmed by the circuit court the appellate court must determine for itself, from the facts and circumstances disclosed by the record, whether it will sustain the conclusion of the commissioner or that of the circuit court.' Point 1, Syllabus, Hyre v. Lambert, 45 W.Va. 715 (31 S.E. 927).

4. An easement by prescription is extinguished by a purchase for value of the servient tenement unless the purchaser has either actual or constructive notice thereof, or where an inspection of the premises would readily disclose the existence of the easement or facts sufficient to put a reasonably prudent buyer on inquiry.

Vernon E. Rankin, Keyser, Louis A. Fatkin, Westernport, Md., for appellants.

Charles W. Smith, Keyser, Jack I. Mullen, Westernport, Md., for appellees.

CAPLAN, Judge.

In this civil action, instituted in the Circuit Court of Mineral County, the plaintiffs, Lawrence D. Fanti and Marjie J. Fanti, his wife, seek a judgment against the defendants, James A. Welsh and Nora E. Welsh, his wife, declaring that the plaintiffs have a right to continue to maintain a certain sewer under lands purchased by defendant James A. Welsh. They further seek injunctive relief to prevent the defendants from blocking or otherwise interfering with the use and enjoyment of the sewer.

Pursuant to Rule 53 of the Rules of Civil Procedure, this matter was referred to a commissioner before whom evidence was taken. Thereafter the commissioner reported to the court that in his opinion the plaintiffs had failed to establish a prescriptive right to said sewer line and recommended a denial of their claim. The court, upon further consideration, set aside the report of the commissioner and entered an order declaring that plaintiffs have a prescriptive right to the sewer line. It is from this order that the defendants prosecute this appeal.

The following factual situation, as it appears from the record, gives rise to this controversy. The plaintiffs own and reside in a house situate on West Fairview Street in the City of Piedmont, Mineral County, West Virginia. Plaintiff Lawrence D. Fanti was born in this house, it formerly having been owned by his father, Tony Fanti. The basement of this house is at a level lower than that of Fairview Street making it impracticable to use the storm sewer in that street to service such house. Consequently, as related by plaintiff Lawrence D. Fanti, Tony Fanti in 1934 constructed a sewer line from the basement of said house across Fairview Street and down the bank in and under the property of The Baltimore and Ohio Railroad Company, such property now being owned by the defendants. Lawrence Fanti, then fourteen years of age, assisted his father in such construction.

Lawrence D. Fanti and other witnesses testified that the construction of this sewer line took approximately ten days; that work thereon continued around the clock, there having been lights placed at the construction site at night; that the sewer was laid under Fairview Street, thereby interfering with the free flow of traffic; that during such construction, including that on the then railroad company property, passenger and freight agents of said railroad company were present in the performance of their regular duties; that no permission was obtained to construct the sewer line on the railroad property, although no objection was made to such construction; and that such sewer line has been in continuous and exclusive use by the plaintiffs and their redecessor in title since its construction.

By deed dated September 25, 1963, The Baltimore and Ohio Railroad Company conveyed to the defendant, James A. Welsh, a tract of land consisting of 1.41 acres. This tract consisted of the railroad station, including tracks, buildings and improvements, a part of which is the bank under which the subject sewer was laid. The habendum clause of this deed contains the following language: 'TO HAVE AND TO HOLD the premises aforesaid * * * subject, however, to * * * all existing ways and servitudes, however, created.'

James A. Welsh testified that the first time he learned of the sewer line was when this suit was instituted against him. He stated that he had the title 'checked' by an attorney and that the report thereof did not show the existence of the subject sewer or any servitudes or easement. No mention whatsoever was made of the sewer by any agent or representative of The Baltimore and Ohio Railroad Company at the time of the conveyance. Mr. Welsh went onto the land prior to his purchase thereof. His examination of such property failed to reveal any evidence indicating or suggesting to him the presence of the sewer.

Lawrence D. Fanti testified that after Mr. Welsh purchased this property, he had reason to believe that Mr. Welsh, in the conduct of his business, would destroy the sewer which his father had construed. Taking the position that the habendum clause, the pertinent part of which is quoted above, gave him the right to the continuous use and enjoyment of the sewer, the plaintiffs instituted this action. The plaintiffs contend that they have obtained an easement by prescription which cannot now be disturbed.

The defendants deny the plaintiffs' claim that they are entitled to the continued use of the property wherein the sewer line is located by reason of the plaintiffs' use thereof for a period in excess of thirty-three years.

Inasmuch as the plaintiffs readily admit that they do not have an easement in the subject property by grant, any right they may have to the continued use of the sewer line must be based upon an easement obtained by prescription. The requisites for obtaining an easement by prescription are well settled. Monk v. Gillenwater, 141 W.Va. 27, 87 S.E.2d 537; Holland v. Flanagan, 139 W.Va. 884, 81 S.E.2d 908; 14 M.J., Prescription, Sections 7--13; 28 C.J.S., Easements, Sections 10--16; 25 Am.Jur 2d, Easements and Licenses, Sections 50--61. The absence of any one or all of such requisites will defeat a claim of a right to an easement by prescription. Holland v. Flanagan, 139 W.Va. 884, 81 S.E.2d 908; see also, 28 C.J.S. Easements § 70b. The burden of proving an easement is on the party asserting a right thereto. 28 C.J.S. Easements § 68; 25 Am.Jur.2d, Easements and Licenses, Section 118; Eagle Lodge v. Hofmeyer, 193 Va. 864, 71 S.E.2d 195. One claiming an easement by prescription must establish his right thereto by 'clear and convincing proof.' Beckley National Exchange Bank v. Lilly, 116 W.Va. 608, 182 S.E. 767, 102 A.L.R. 462.

The commissioner, in accordance with the testimony of witnesses, held that the use by the plaintiffs and their predecessor in title has not been 'a visible use'; that such use was visible, at most, only a few months after the sewer was constructed in 1934; 'that the sewer line was not used with the knowledge and acquiescence of The Baltimore and Ohio Railroad Company'; and also that 'Since this use of this sewer line was not open and public or notorious, there would be no presumption that it was a use made under a claim of right.' The commissioner summarized his findings in relation to the claim of an easement by prescription as follows: 'Your commissioner therefore finds that an easement by prescription for the maintenance of a private sewer line across the defendants' land has not been proved by the plaintiffs, due to the plaintiffs' failure to establish by a preponderance of the evidence the requirements that the use be visible, under claim of right, and with the knowledge and acquiescence of the owner.'

It is urged in behalf of the defendants that these findings of fact made by the commissioner are entitled to peculiar weight. Had the commissioner's findings been sustained by the trial court, the defendant's contention would be more forceful. Baker v. Hamilton, 144 W.Va. 575, 109 S.E.2d 27. Rule 52 of the Rules of Civil Procedure contains the following language: 'The findings of a commissioner, to the extent that the court adopts them, shall be considered as the findings of the court.' See also Highland v. Ice, 75 W.Va. 513, 84 S.E. 252; Deepwater Railway Company v. Honaker, 66 W.Va. 136, 66 S.E. 104; State v. King, 64 W.Va. 546, 63 S.E. 468; Hyre v. Lambert, 45 W.Va....