Gregory v. Long
| Decision Date | 14 June 2022 |
| Docket Number | 20-0857 |
| Citation | 875 S.E.2d 298 |
| Parties | Timothy J. GREGORY and Janice L. Gregory, Plaintiffs Below, Petitioners, v. Jack O. LONG and Lora A. Long, Defendants Below, Respondents. |
| Court | West Virginia Supreme Court |
J. Burton Hunter, III, Esq., J. Burton Hunter, III and Associates, PLLC, Buckhannon, West Virginia, Counsel for the Petitioners
Pat A. Nichols, Esq., Nichols & Nichols, Parsons, West Virginia, Counsel for the Respondents
In this appeal from the Circuit Court of Upshur County, we consider whether a 1905 map was admissible to prove a part of the plaintiffs’ claim that they have a legal right to use a roadway that traverses land owned by the defendants. The circuit court found that the map was not admissible and then, in the absence of any evidence supporting that part of the plaintiffs’ claim, granted partial summary judgment to the defendants.
As we discuss below, we find that the 1905 map was admissible as an "ancient document." Further, the map created genuine issues of material fact. Accordingly, we reverse the circuit court's partial summary judgment ruling and remand the case for further proceedings.
Plaintiffs Timothy and Janice Gregory own a house on 152 acres of land in Upshur County. The record suggests that there is valuable timber on the land.
Next to the plaintiffs’ property, defendants Jack and Lora Long own a house on 50 acres of land. There is a roadway that stretches about 1,155 feet across the defendants’ land. The roadway leads from a public highway to the plaintiffs’ land, and the parties agree that the plaintiffs have a legal right use to use the roadway. They disagree, however, about the right of way's legal width and the circumstances under which the plaintiffs may use it.
In April of 2017, a dump truck filled with gravel began traveling up the roadway to, ostensibly, fill in some potholes in front of the plaintiffs’ house. The defendants, however, blocked the dump truck. They perceived that the plaintiffs were setting the stage to timber their land and were attempting to repair, straighten and widen the roadway in anticipation of the unwieldy logging trucks needed to complete the logging operation. The defendants objected to any acts that might widen or straighten the roadway into the defendants’ ditches, fences, flowers, and trees.
The plaintiffs sued the defendants in December of 2017 seeking, among other things, a declaratory judgment to clarify the existence, location, width, and scope of their permissible use of the right of way across the defendants’ land. The defendants responded with a motion for summary judgment asserting that the plaintiffs legally have a prescriptive easement1 to use the roadway, that the easement is only about ten to twelve feet wide, and that the plaintiffs are limited to using the easement for ingress to and egress from their house, as well as for occasional agricultural use. The circuit court denied the motion because the record showed that disputed questions of material fact existed regarding the width, location, and scope of use of the right of way.
Plaintiffs’ counsel concedes in his brief to this Court that, when he filed this lawsuit in the Circuit Court of Upshur County, he had no proof showing how the plaintiffs’ right-of-way across the defendants’ land was created. As counsel states, his only evidence was that the right "has existed longer than human memory." Plaintiffs’ counsel then relates that a conversation about the roadway in December 2018 prompted him to visit the regional West Virginia Division of Highways office, a local historian, and numerous other individuals, all of which led him to discover a key piece of evidence: a 1905 map hanging in the hallway of the Upshur County Courthouse.2 The plaintiffs allege the map shows that the roadway traversing the defendants’ property is an ancient, public, county road.
A caption in the upper left corner of the map provides that it is a "Map of Upshur County, West Va." showing, among other things, "county roads." In the lower left corner is the following inscription:
MADE BY A. B. BROOKS , BUCKHANNON , W. VA. 1905 THE ORIGINAL OF THIS MAP WAS MADE FOR THE COUNTY COURT 3 UNDER THE DIRECTION OF EUGENE BROWN , CLERK
The plaintiffs’ counsel did more research and found a 1905 local newspaper story discussing the creation of the map by Mr. Brooks, an assistant in the county clerk's office:
The Buckhannon Delta and Knight-Errant at 1 (June 29, 1905). The plaintiffs’ counsel also secured an affidavit from the current county clerk stating that she has worked at the courthouse for twenty-one years. The county clerk said she regularly refers to the 1905 map hanging in the hallway to identify county landmarks and refers visitors to the map for the same reason.
The plaintiffs filed amended complaints based upon the "1905 Map drawn by A. B. Brooks" seeking, in part, a declaration that the disputed roadway is a public or county road. They alleged that the 1905 map contains important landmarks, such as a church that still stands next to the defendants’ land, and the long-gone house of one "Geo. Hamner," a former owner of one part of the plaintiffs’ land.4 The plaintiffs asserted that the 1905 map has markings consistent with the roadway across the defendants’ property and identifies the roadway as a "county road." The plaintiffs averred that various state laws from the late 1800s and early 1900s required county roads to "occupy a right of way not less than thirty feet wide[.]" See, e.g., Acts of the Legislature , ch. 52, § 2, at 402 (1909).
To explain the meaning of the 1905 map, the plaintiffs proffered an expert opinion from John W. Fisher, II, who taught property law at the West Virginia University College of Law for 41 years. Dean Fisher opined that the county road system5 in West Virginia evolved from trails originally created by wildlife, Native Americans, or early settlers. By the late 1800s, counties legally conscripted men between the ages of 18 and 50, for two days a year, to improve those trails into county roads.6 Because of this system of forced labor, Dean Fisher stated that it was typical for there to be no record of money being spent on county roads.
Significantly, Dean Fisher found that the 1905 map was "compelling evidence" of the county roads in Upshur County given that the map "was commissioned by the Upshur County Court, was prepared by an assistant County Clerk and posted by the Clerk's office and has been publicly displayed until this day." Additionally, he identified various Virginia and West Virginia statutes from the late 1800s indicating that county roads should be constructed 30 feet wide, sufficient for wagons to pass going in opposite directions. Based, in part, on the 1905 map, it was Dean Fisher's overall opinion that the evidence clearly established that the roadway traversing the defendants’ land was, and still is, a county road and, by law, should have a right-of-way that is thirty feet wide.
The defendants subsequently moved for partial summary judgment to dismiss that part of the plaintiffs’ case asserting that the roadway is a public or county road.7 The defendants argued that the plaintiffs produced no deeds, orders, or other evidence showing the roadway was ever constructed or condemned by, or dedicated or deeded over to, the Upshur County Commission. Further, the defendants asserted there is no evidence in the record that public money was ever spent on the roadway.
In an order dated July 10, 2020, the circuit court agreed with the defendants and granted partial summary judgment in their favor. The circuit court determined that it could not consider the 1905 map because it "is not a public record." After excluding the map from consideration, the circuit court found that "there is no evidence to support a claim entitling [the plaintiffs] to a declaration that the road is or has ever been a public road or public right-of-way." Accordingly, the circuit court dismissed the "Plaintiffs’ claim for declaration of public road or public right-of-way on the road traversing the Defendants’ property[.]" The circuit court later declared the order to be final and appealable.8
The plaintiffs now appeal the circuit court's partial summary judgment order.
We review a circuit court's entry of summary judgment de novo. Syl. pt. 1, Painter v. Peavy , 192 W. Va. 189, 451 S.E.2d 755 (1994). We therefore apply the same standard as the circuit court, which is that "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of N.Y. , 148 W.Va. 160, 133 S.E.2d 770 (1963).
The plaintiffs’ central argument on appeal is that the circuit court erred when it refused to consider or admit the 1905 map.9 The plaintiffs point out that the map should be considered as an "ancient document" admissible under Rule 803(16) of the West Virginia Rules of Evidence. The plaintiffs contend that, after declaring that the 1905 map was not admissible evidence, the circuit court then erred in granting the defendants’ motion for summary judgment.10 We agree.
We begin by noting that "[a] trial court's ruling on the admissibility of evidence is...
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