G Corp, Inc. v. MackJo, Inc., 22840

• Court: Supreme Court of West Virginia
• Citation: 466 S.E.2d 820,195 W.Va. 752
• Docket Number: No. 22840,22840
• Parties: G CORP, INC., a West Virginia Corporation, and 905, Inc., a West Virginia Corporation, Plaintiffs Below, Appellees, v. MACKJO, INC., a West Virginia Corporation; and Herman Fletcher, an Individual, Defendants Below, Appellants.
• Decision Date: 13 December 1995

Page 820

466 S.E.2d 820 195 W.Va. 752 G CORP, INC., a West Virginia Corporation, and 905, Inc., a
West Virginia Corporation, Plaintiffs Below, Appellees,
v.
MACKJO, INC., a West Virginia Corporation; and Herman
Fletcher, an Individual, Defendants Below, Appellants. No. 22840. Supreme Court of Appeals of
West Virginia. Submitted Sept. 20, 1995.
Decided Dec. 13, 1995.

Page 821

[195 W.Va. 753] Syllabus by the Court

1. "Unless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse or to modify, continue, or dissolve a temporary or a permanent injunction, whether preventive or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion." Syl. pt. 11, Stuart v. Lake Washington Realty, 141 W.Va. 627, 92 S.E.2d 891 (1956).

2. "An owner of a servient estate may legally grant successive easements for purposes of travel in and over a certain road or way in favor of various property owners having need for such travel easements, to be used jointly by them; and a person having such an easement right may not be permitted to object to any use of or change in the character of such road or way by the owner of the servient estate or by any other owner of such an easement right or way so long as the rights of the one complaining are not thereby impaired or interfered with in an undue or unreasonable manner or degree." Syl. pt. 6, Sanders v. Roselawn Memorial Gardens, 152 W.Va. 91, 159 S.E.2d 784 (1968).

3. " 'The fundamental rule in construing covenants and restrictive agreements is that the intention of the parties governs. That intention is gathered from the entire instrument by which the restriction is created, the surrounding circumstances and the objects which the covenant is designed to accomplish.' Wallace v. St. Clair, 147 W.Va. 377, 390, 127 S.E.2d 742, 751 (1962)." Syl. pt. 2, Allemong v. Frendzel, 178 W.Va. 601, 363 S.E.2d 487 (1987).

4. "This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance." Syl. pt. 2, Sands v. Security Trust, 143 W.Va. 522, 102 S.E.2d 733 (1958).

Appeal from the Circuit Court of Kanawha County; Honorable Lyne Ranson, Judge.

Arthur T. Ciccarello, Ciccarello, DelGuidice & LaFon, Charleston, for Appellant, MackJo, Inc.

Gerard R. Stowers, Fazal A. Shere, Elizabeth B. Elmore, Bowles, Rice, McDavid, Graff & Love, Charleston, for Appellant, Herman Fletcher.

G. Nicholas Casey, Jr., Webster J. Arceneaux, III, Brian R. Hopkins, David W. Johnson,

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[195 W.Va. 754] Lewis, Friedberg, Glasser, Casey & Rollins, Charleston, for Appellees.

PER CURIAM:

This action is before this Court upon an appeal from the final order of the Circuit Court of Kanawha County, West Virginia, entered on October 4, 1994. This action concerns an easement conveyed by appellant, MackJo, Inc., to appellant, Herman Fletcher. The appellees, G Corp, Inc., and 905, Inc., contend that the easement conveyed to Fletcher violates a protective covenant previously executed by MackJo, Inc., for the benefit of the appellees.

This Court has before it all matters of record and the briefs and argument of counsel. For the reasons expressed below, this Court is of the opinion that the easement conveyed to Fletcher did not violate the protective covenant. We, therefore, reverse the final order of the circuit court and remand this action for further proceedings.

I

MackJo, Inc., is an owner and developer of various tracts of real property located along U.S. Route 119, also known as Corridor G, in Kanawha County, West Virginia. Included within that property is a tract known as Childress Place, a light industrial park developed by MackJo, Inc., for commercial enterprises, including manufacturing, warehousing and distribution businesses. In furtherance of the commercial purpose of Childress Place, MackJo, Inc., in March 1990, executed a Declaration of Protective Covenants and Restrictions. The Declaration contains eight articles, most of which concern the creation and responsibilities of an association of business owners within the park. Generally, the association is responsible for the maintenance and preservation of common areas in the park and for the collection of assessments for that purpose.

On March 27, 1990, MackJo, Inc., conveyed 11.28 acres within Childress Place to G Corp, Inc., and also conveyed to G Corp, Inc., "a non-exclusive 40 foot easement or right-of-way" leading from Corridor G to the 11.28 acres. The deed provided that the conveyance was subject to the Declaration of Protective Covenants. The consideration for the transfer was $220,000, and Dennis R. Vaughan, president of G Corp, Inc., contends that G Corp, Inc., was induced by the Declaration to make the purchase. Thereafter, G Corp, Inc., leased to 905, Inc., which operates a beer distributorship upon the property.

Article IV of the above Declaration of Protective Covenants is entitled "Property Rights," and pursuant to section 4.02 thereof, MackJo, Inc., reserved "unto itself, its successors and assigns, including any future owners, the right to use the streets." Moreover, article VII of the Declaration is entitled "Easements," and section 7.02 thereof states:

In addition to the rights reserved by Declarant [MackJo, Inc.] in Section 4.02 of this document, Declarant reserves unto itself, its successors and assigns, the right of ingress, egress and regress upon, over and across the streets and roads comprising Childress Place to adjacent and neighboring tracts of land now owned by Declarant, including, but not limited to, the tracts from which Childress Place was derived. It is contemplated that Declarant will develop tracts adjacent and neighboring to Childress Place and, most likely, will utilize the entrance, roads and streets of Childress Place in such development and use thereof. Should Declarant, or its successor or assigns, or any third party outside the Association, utilize or be given the right to utilize the streets and roads of Childress Place for ingress, egress or regress to adjacent and neighboring properties, then they will be required to bear the reasonable and respective cost for maintenance of same.

Furthermore, article VI of the Declaration is entitled "Covenants and Restrictions." Section 6.01 of that article provides: "The following covenants, restrictions, limitations, regulations and agreements are hereby imposed on lots in Childress Place, ... [n]o part of the Industrial Park shall be used for residential purposes."

Subsequent to the purchase by G Corp, Inc., MackJo, Inc., in November 1992, conveyed to Herman Fletcher a "non-exclusive right-of-way and easement, 40 feet in width,"

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[195 W.Va. 755] leading from Corridor G to various tracts of real property owned by Fletcher. The record indicates that Herman Fletcher intends to develop his property into a residential subdivision known as Southridge Estates. Importantly, Childress Place is located between Corridor G and the Fletcher property, and the easement conveyed to Fletcher...