Hoffman v. Shoemaker.

• Decision Date: 25 April 1911
• Citation: 69 W.Va. 233
• Parties: Hoffman v. Shoemaker.
• Court: West Virginia Supreme Court

69 W.Va. 233

Hoffman

v.Shoemaker.

Supreme Court of Appeals of West Virginia.

Submitted September 8, 1910.

Decided April 25, 1911.

1. Judgment Conclusiveness Trespass Quare Clausum Fregit.

A judgment for the plaintiff in an action of trespass quare clausum fregit against a defendant, claiming a way over the premises on which the act of alleged trespass was done, is not conclusive of the right claimed by the defendant, unless it is shown to have been relied upon by the latter as a defense and actually litigated in the action. (p. 236).

2. Easements Ways.

A grantor may claim a way over the granted premises, as reserved by implication, if it is shown to be strictly necessary to the use and enjoyment of adjacent land retained by him, and the intent to reserve it is not negatived by any express terms of the deed. (p. 237).

3. Same Grant or Reservation by ImplicationWaysNecessity

for Continuity.

The legal principle, requiring an easement to be "continuous" as a requisite to a grant or reservation thereof by implication, is not applicable to a way. (p. 240).

(Robinson, Judge, dissents).

Appeal from Circuit Court, Mineral County. Suit by Charles S. Hoffman against Charles W. Shoemaker. Decree for plaintiff, and defendant appeals.

Reversed and Dismissed.

H. K. Drane and W. II. Griffith, for appellant. Frank C. Reynolds and Taylor Morrison; for appellee.

PoffenbargeR, Judge:

In this suit by a land owner, to enjoin the defendant from the use of a right of way over his land, claimed in part by a deed and in part by prescription and long user, the defenses were a former adjudication in favor of the plaintiff and insufficiency of the defendant's evidence to establish the right claimed by him. The decree appealed from, general in form and without indication as to its legal basis, is for the plaintiff and perpetually enjoins the defendant from the use of said right of way.

The plaintiff owns three contiguous tracts of land, adjacent to the northwestern end of which lies the farm of the defendant. From the latter an old road, holding a southeasterly course, runs over the farm of the plaintiff, consisting of said three tracts, in a southeasterly direction, to a public road called the "New Creek Pike." The evidence conclusively shows that this road has been used by persons residing back of the plaintiff's land for a long time, forty or fifty years, and by the defendant and his predecessors in title for at least twenty-five or thirty years and possibly for the whole period aforesaid. If nothing else appeared, this would make, under our decisions, a clear case of a right of way by prescription. But there are some other facts to be considered. The three tracts of land constituting the plaintiff's farm seem to have been owned at one time by James B. Bees, as a single tract. The deeds exhibited indicate this.. By deed dated Feb. 6, 1884, said Bees conveyed to Joseph W. Parish a tract of about 56 acres practically out of the center of what now constitutes the plaintiff's farm. In that deed, hegranted to Parish a right of way over the land thereby conveyed, determinable as to location by the old existing road, out to the public road. He also reserved a right of way over the land granted to Parish "for the use and benefit of William Leatherman, his heirs and assigns." At that time, Leatherman owned the farm now owned and occupied by the defendant.. Hence, this reservation constituted an exception from the grant to Parish in favor of Leatherman, the predecessor in title of Charles W. Shoemaker, the defendant here. The right of way, so given to him or recognized by these deeds, did not extend up to Leathermams land, but he used and enjoyed a right of way over Bees's land down to the road so provided for him over the Parish land. Robert Burkhiser having apparently acquired the Parish land and the James B. Bees land lying between it and the public road, containing 104 acres, conveyed both of these tracts to the plaintiff, C. S. Hoffman, by deed dated April 3,

1900. Just one year later, William S. Leatherman conveyed to Charles W. Shoemaker his tract of land. In the meantime, some other conveyances had taken place. S. S. Bees, who, in some way, became the successor of James B. Bees to the northwestern part of the Bees land, adjoined by the Leatherman land, conveyed it to A. T. Leatherman, the son of William S. Leatherman, by deed dated December 10, 1889. A. T. Leatherman, by deed dated December 15, 1889, conveyed to his father, William S. Leatherman, a small portion of this land, containing about 18 acres. A part of the old road leading from Leatherman's land down to the Parish tract was wholly on this 18 acres and the balance of it on the line between it and the other land then held by A. T. Leatherman. The evidence tends to show that W. S. Leatherman made this purchase to strengthen and secure his right of way. The Leathermans being unable to pay for this land, Bees took it back, by a deed from A. T. Leatherman, dated December 11, 1895; W. S. Leatherman having reconveyed the 18 acres to A. T. Leatherman on the same day. In this reconveyance W. S. Leatherman did not reserve his road over the 18 acres, but, from the date of that deed, Dec. 11, 1895, until April 3,

1901, he continued to use the road without objection from Bees, and also without objection from Hoffman, who acquired the Bees land by deed dated April 3, 1900. Thereafter Chas. W. Shoemaker, who became the owner of the Leatherman land April 3, 1901, used the road over this Bees land without objection from the plaintiff until about the year 1903. Some time in the year 1903, the latter placed a wire fence across the road, and the defendant applied for, but did not obtain, an injunction, and the fence was removed. Plaintiff says he removed it and suffered the defendant to continue the use of the road, but not that there was any agreement between them or that, with the consent of the defendant, the subsequent user was permissive only. All [April 1911.

that appears is that the fence was put up, the injunction applied for, the fence removed, in two or three days from the date of its construction, and the defendant continued the use of the road. Later, there were some negotiations between the parties in an effort to compromise and settle the controversy by agreement. This having failed, the plaintiff, sometime in 1908, locked the gates and built additional fences across the road. These the defendant opened by cutting a gate from its hinges, cutting a wire fence and hitching a horse to another fence and a gate and pulling them down. Thereupon the plaintiff instituted an action of trespass against him and recovered a judgment for $1.50, which is the one relied upon as a former adjudication.

As to the effect of a judgment in such an action upon title, the authorities are in great conflict. Dickinson v. Manikin, 61 W. Va. 429; Clark v. Dower, 67 W. Va. 298. In the latter case, the judgment was held not to be appealable, although a. special plea was entered by the defendant, setting up a right of way by prescription. In the former, the title was held not to have been settled and determined, although the defendant entered both a plea of not guilty and plea of liberum tenementum, and evidence was adduced on the question of title. No good purpose would be subserved here in attempting to analyze or reconcile the conflicting authorities, or deduce from them, the true rule, since we are of the opinion that the right claimed by defendant was not litigated in the action at law. The only plea shown by any order entered in the case was that of not guilty. A paper is certified by the clerk of the trial court which purports to be a copy of a. special plea, setting up the right of way by prescription, but we find no order showing it to have been tendered or filed, or in any way made a part of the record. Though it is not clearly shown that any of the evidence used in that action has been made a part of the evidence in this cause, or that the right was litigated and determined, what on its face seems to have been evidence used in the action at law, has been incorporated in this record. Nowitness testifies that it is the evidence in that case nor does the clerk of the circuit court certify that it was. However, conceding it to be such, it only shows the title of the plaintiff to the land, the erection of fences and locking of gates across the road and the breaking of the same by the defendant and his continued use of the road. No evidence of any prescriptive right was introduced or offered by the defendant. Hence, we are clearly of the opinion that neither by plea nor evidence was the defendant's right of way put in issue. So we hold the defense of former adjudication to be unsustained.

The all important question remaining to be considered, is the effect of the deed made by William S. Leatherman to S. S. Rees, conveying land on which a part of the road is without a reservation thereof. Ordinarily, a grantor is not permitted to set up, by parol, any reservation against his deed, purporting on its face to grant all of his right, title and interest in a tract or parcel of land. Of course, he cannot claim any of the land against his deed. Such a construction of a deed would render it nugatory and defeat its purpose in whole or in part. Under a well settled rule, it must be so construed as to give it effect to the extent of its entire subject matter. It is nevertheless possible for a grantor to claim, under exceptional and peculiar circumstances, an easement over the land granted as appurtenant to other lands retained by him. This easement is not the land itself and the retention thereof does not wholly defeat the deed as to any part of it. It is a mere right of use, not title. In such cases, the question is one of intention, but the circumstances must be such as to disclose the existence of that intent beyond any reasonable doubt, and such intent must arise from necessity, else the doubt is not excluded...