Highway Properties v. Dollar Sav. Bank

• Decision Date: 25 May 1993
• Docket Number: No. 21366,21366
• Citation: 431 S.E.2d 95,189 W.Va. 301
• Court: West Virginia Supreme Court
• Parties: HIGHWAY PROPERTIES, a Limited Partnership, a West Virginia Limited Partnership, Plaintiff Below, Appellant, v. DOLLAR SAVINGS BANK and New Market Corporation, a Subsidiary of Dollar Savings Bank, Defendants Below, Appellees.

Page 95

431 S.E.2d 95

189 W.Va. 301

HIGHWAY PROPERTIES, a Limited Partnership, a West Virginia Limited Partnership, Plaintiff Below, Appellant, v. DOLLAR SAVINGS BANK and New Market Corporation, a Subsidiary of Dollar Savings Bank, Defendants Below, Appellees.

No. 21366.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 13, 1993.

Decided May 25, 1993.

Syllabus by the Court

1. " 'In order to create an exception or reservation in a deed which would reduce a grant in a conveyance clause which is clear, correct and conventional, such exception or reservation must be expressed in certain and definite language.' Syllabus Point 2, Hall v. Hartley, 146 W.Va. 328, 119 S.E.2d 759 (1961)." Syllabus Point 2, G & W Auto Ctr., Inc. v. Yoursco, 167 W.Va. 648, 280 S.E.2d 327 (1981).

2. "A deed granting to a railroad company land for its right of way must contain on its face a description of the land in itself certain, so as to be identified, or if not in itself so certain, it must give such description as, with the aid of evidence outside the deed, not contradicting it, will identify and locate the land, otherwise the deed is void for uncertainty." Syllabus Point 1, Hoard v. Railroad Co., 59 W.Va. 91, 53 S.E. 278 (1906).

3. "Whatever is sufficient to direct the attention of a purchaser to prior rights and equities of third parties, so as to put him on inquiry into ascertaining their nature, will operate as notice." Syllabus Point 1, Tanning Co. v. Boom Co., 63 W.Va. 685, 60 S.E. 890 (1908).

4. "A party is not entitled to protection as a bona fide purchaser, without notice, unless he looks to every part of the title he is purchasing, neglecting no source of information respecting it which common prudence suggests." Syllabus Point 2, Tanning Co. v. Boom Co., 63 W.Va. 685, 60 S.E. 890 (1908).

5. "This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment." Syllabus Point 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).

William W. Talbott, Webster Springs, for appellant.

Frederick A. Jesser, III, Jesser & Harrington, Fayetteville, for appellees.

PER CURIAM:

The appellant, Highway Properties, a limited partnership, brought suit against Dollar Savings Bank (Dollar Savings) and its subsidiary New Market Corporation (New Market) seeking to enforce an easement for ingress and egress to and from its property across the adjacent property of Dollar Savings and New Market. The trial court concluded that the doctrine of merger extinguished Highway Properties' easement. This finding was based on the premise that both tracts were derived from a common owner, Fayette Square Limited (Fayette Square). When Fayette Square obtained these tracts, reciprocal easements were contained in its deed; however, it appears that the trial court reasoned that because Fayette Square was the common owner of the two tracts, the reciprocal easements were extinguished.

The property in controversy originally was owned by North Hills Group, Inc. (North Hills), a West Virginia corporation, and consisted of approximately 36 acres. It is located near Oak Hill, West Virginia, adjacent to U.S. Route 19. In 1983, a developer wanted to create a shopping center on the property and a limited partnership was created called Fayette Square. By a deed dated December 29, 1983, North Hills conveyed the 36-acre tract to Fayette Square. In that conveyance, the property was conveyed by specifically described parcels numbered one through five.

The two largest parcels, Parcel One consisting of 17.45 acres, and Parcel Five consisting of 16.4 acres, are the parcels involved in this litigation. Despite their parcel numbering in the 1983 deed, no dispute exists that these two tracts are adjacent to each other. ¹ This litigation stems from the current owners of Parcel Five, Highway Properties, seeking to cross Parcel One in order to reach the main access road which adjoins Parcel One.

The 1983 deed to Fayette Square contained this single provision with regard to easements: "It is agreed and understood that there is common parking and rights-of-way or easements in, to and across all parcels for ingress and egress from and to all other parcels." In subsequent transfers by Fayette Square, even more general language was used to describe the easements. By deed of trust dated September 1, 1984, Fayette Square conveyed to Dollar Savings Bank the 17.45 acre tract known as Parcel One. The deed contained only this language: "subject to easements and restrictions of record[.]" Fayette Square eventually defaulted on its loan to Dollar Savings Bank and the property was sold under the deed of trust to the appellee, New Market, a subsidiary corporation of Dollar Savings. ²

By deed dated February 25, 1987, Fayette Square conveyed the 16.4 acre tract known as Parcel Five to Highway Properties, which was part of the same property that Fayette Square obtained in its 1983 deed from North Hills. In the 1987 deed from Fayette Square, Highway Properties received by way of general language all rights, privileges, rights-of-way, and easements owned by Fayette Square on the property conveyed. ³

Thereafter, Highway Properties sought to utilize the 16.4 acre tract for commercial development, but was denied access to it. According to Highway Properties, the only access to this property was the easement on the 17.45 acre tract owned by Dollar Savings and its subsidiary New Market. When the matter of access could not be resolved amicably, Highway Properties sued Dollar Savings and New Market asserting that it had an easement by virtue of its 1987 deed across their property. The defendants claimed that the easement was extinguished when North Hills made its original conveyance to Fayette Square in 1983.

At the urging of Dollar Savings and New Market, the court below decided that a merger between the dominant and servient estates occurred in the 1983 deed and the easements were extinguished. Merger occurred in spite of the fact the deed contained easement language, reciting reciprocal rights-of-way for ingress and egress and parking on the five tracts, because Fayette Square received fee simple title to the five parcels.

We recognized the doctrine of merger in Syllabus Point 2 of Henline v. Miller, 117 W.Va. 439, 185 S.E. 852 (1936):

"When the owner of a dominant estate acquires the fee simple title to the servient estate, an easement appurtenant to the dominant estate is extinguished."

See also Perdue v. Ballengee, 87 W.Va. 618, 105 S.E. 767 (1921). In Pingley v. Pingley, 82 W.Va. 228, 229, 95 S.E. 860, 861 (1918), we explained the basis for this doctrine:

"It seems to be firmly established that where the owner of land over which an easement is claimed as appurtenant to another tract of land becomes also the owner of such other tract, the easement is merged in his superior estate. No one can use part of his own estate adversely to another part, and the proposition, therefore, must be true that if the owner of one of the estates, whether the dominant or servient one, becomes the owner of the other, the servitude which one owes to the other is merged in such ownership, and thereby extinguished." (Citations omitted). ⁴

Independently of the doctrine of merger, it is our belief that there is a more fundamental problem foreclosing Highway Properties' easement. In the law of real property, it is recognized that a right-of-way or other type of easement constitutes an exception or reservation to the full fee simple interest. See Cottrell v. Nurnberger, 131 W.Va. 391, 47 S.E.2d 454 (1948). ⁵

Where such rights are created in a deed, we have held that it must be done with some certainty. As we stated in Syllabus Point 2 of G & W Auto Center, Inc. v. Yoursco, 167 W.Va. 648, 280 S.E.2d 327 (1981):

" 'In order to create an exception or reservation in a deed which would reduce a grant in a conveyance clause which is clear, correct and conventional, such exception or reservation must be expressed in certain and definite language.' Syllabus Point 2, Hall v. Hartley, 146 W.Va. 328, 119 S.E.2d 759 (1961)." ⁶

See also Syllabus Point 2, Bennett v. Smith, 136 W.Va. 903, 69 S.E.2d 42 (1952); Syllabus Point 2, Harding v. Jennings, 68 W.Va. 354, 70 S.E. 1 (1910).

More specifically, in the context of a right-of-way, in Hoard v. Railroad Co., 59 W.Va. 91, 53 S.E. 278 (1906), we concluded that a deed which described the dimensions of a right-of-way, but failed to establish its beginning point, was insufficient to convey the right-of-way. ⁷ We stated this principle in Syllabus Point 1:

"A deed granting to a railroad company land for its right of way must contain on its face a description of the land in itself certain, so as to be identified, or if not in itself so certain, it must give such description as, with the aid of evidence outside the deed, not contradicting it, will identify and locate the land, otherwise the deed is void for uncertainty."

Other jurisdictions have evolved similar rules with regard to the sufficiency of the description of an easement created in a deed. One of the best summaries is given by the North Carolina Supreme Court in Allen v. Duvall, 311 N.C. 245, 249, 316 S.E.2d 267, 270 (1984):

"When an easement is created by deed, either by express grant or by reservation, the description thereof 'must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers.... There must be language in the deed sufficient to serve as a pointer or a guide to the ascertainment of the location of the land.' Thompson v. Umberger, 221 N.C. 178, 180, 19 S.E.2d 484, 485 (1942)." (Emphasis in original; citations omitted).

See also Dunlap Investors Ltd. v. Hogan, 133 Ariz. 130, 650 P.2d 432 (1982); Parkinson v. Board of...