Law v. Monongahela Power Co.

• Decision Date: 12 December 2001
• Docket Number: No. 29179.,29179.
• Citation: 558 S.E.2d 349,210 W.Va. 549
• Court: West Virginia Supreme Court
• Parties: Stewart B. LAW, Jr., Plaintiff Below, Appellant v. MONONGAHELA POWER COMPANY, d.b.a. Allegheny Power, a Corporation, and State of West Virginia Bureau of Commerce, Division of Natural Resources, Public Land Corporation, and State of West Virginia Department of Transportation, Division of Highways, Defendants Below, Appellees

558 S.E.2d 349

210 W.Va. 549

Stewart B. LAW, Jr., Plaintiff Below, Appellant v. MONONGAHELA POWER COMPANY, d.b.a. Allegheny Power, a Corporation, and State of West Virginia Bureau of Commerce, Division of Natural Resources, Public Land Corporation, and State of West Virginia Department of Transportation, Division of Highways, Defendants Below, Appellees

No. 29179.

Supreme Court of Appeals of West Virginia.

Submitted November 6, 2001.

Decided December 12, 2001.

William C. Garrett, Elizabeth G. Farber, Gassaway, West Virginia, Attorneys for the Appellant.

Jeffrey A. Kimble, Robinson & McElwee, Clarksburg, West Virginia, Toni M. Nesselrotte, Fairmont, West Virginia, Attorneys for the Appellee, Allegheny Power.

Michael Kozakewich, Jr., Steptoe & Johnson, Clarksburg, West Virginia, Attorney for the Appellee, State of West Virginia.

PER CURIAM:

This is an appeal by Stewart B. Law, Jr., (hereinafter "Appellant") from a denial of a motion for reconsideration entered by the Circuit Court of Upshur County. The lower court had granted summary judgment in favor of Allegheny Power Company (hereinafter "APC"), the State of West Virginia Bureau of Commerce, Division of Natural Resources (hereinafter "DNR"), and the State of West Virginia Department of Transportation, Division of Highways (hereinafter "DOH"). The Appellant filed the underlying civil action alleging entitlement to a right of way or easement to his property through a locked access road near Stone Coal Lake in Upshur County. The Appellant contends that the lower court erred in denying his motion for reconsideration of a summary judgment entered in favor of the Appellees where numerous genuine issues of material fact existed and clarification of those facts was desirable to determine proper application of the law. Based upon a review of the record, arguments of counsel, and relevant precedent, this Court concludes that the lower court abused its discretion in denying the Appellant's motion for reconsideration.

I. Facts

The fifteen-acre property in question, currently owned by the Appellant, was originally part of a forty-seven-acre tract of land purchased in 1879 by Amos R. Shoulders (hereinafter "the Shoulders tract"). In 1920, Mr. Shoulders sold five acres near County Road 7 to Mr. David Golden (hereinafter "the Golden tract").¹ Mr. Shoulders died in 1923, and his heirs further divided his property and conveyed parcels by various deeds.

In a February 12, 1925, deed from T.E. West to W.E. Robinson separating the fifteen-acre tract now owned by the Appellant from the Shoulders tract, an express provision was included for "a free right of way in and to said fifteen acres tract of land, which right of way is to extend in the most practical course or direction through the tract of land this day described in deed to the said T.E. West and the tract described in a deed of same date to the said Lillie Smith and to extend from said 15 acre tract of land to the tract of land now owned by David Golden, all of said tracts of land being a part of said Amos R. Shoulders tract of land...." The Appellant contends that such right of way was intended to create access from the fifteen-acre tract to County Road 7, west of the fifteen-acre tract.

Various other conveyances of the fifteen-acre tract were made from 1925 to the present, all referencing the right of way for ingress and egress to the fifteen-acre tract.² A 1970 conveyance referenced the right of way "to said 15 acres, more or less, of land, for use as a means of ingress and egress to and from same...."

On June 16, 1971, DOH entered into a written agreement with APC under which several public roads, including County Road 7, were to be abandoned and destroyed when Stonecoal Lake was created by APC. As part of this 1971 agreement, APC agreed to construct alternate roads to replace the destroyed public roads. APC purchased the remaining three tracts that were originally part of the Shoulders tract. Thus, of the original Shoulders property, only the Appellant's fifteen-acre tract is not currently owned by APC.

APC constructed Stonecoal Lake in 1972. By lease dated October 1, 1972, APC leased the certain properties surrounding the lake to the DNR. The Stonecoal Lake Wildlife Management Area (hereinafter "WMA") is managed by the DNR, "subject to all leases, liens, easement, rights of way, or other encumbrances, whether or not of record, now outstanding or created hereafter with respect to the premises." While the record is not entirely clear regarding what additional roads were constructed by APC, the DOH did eventually formally abandon County Road 7.

On September 26, 1996, the Appellant purchased the fifteen-acre tract of property in question. The deed included, verbatim, the reference to the 1925 deed and the right of way. The Appellant also purchased four other bordering tracts not originally part of the Shoulders tract, totaling 150 acres. A twenty-five-acre tract purchased by the Appellant lies between the fifteen-acre tract and County Road 14/3.³

The Appellant contends that a road constructed by APC, known as the "North Lake Road," is the alternate road contemplated by the 1971 agreement between DOH and APC. North Lake Road, which runs essentially parallel to the abandoned and submerged County Road 7, is gated and locked beyond a public access boat landing on Stonecoal Lake, and APC contends that North Lake Road is a private maintenance road rather than a replacement for County Road 7. Based upon information obtained from his predecessor in title, the Appellant requested a key to the gate at the French Creek Game Farm, and his request was denied.⁴ The Appellant then requested a key from APC. APC allegedly informed the Appellant that it would obtain a key for him, but the Appellant never received the key.

On November 14, 1997, the Appellant filed a complaint in the lower court, seeking an easement and right of way on North Lake Road in order to gain access to his fifteen-acre tract. In the alternative, the Appellant sought damages for loss of his right of way and enjoyment of his property. The Appellant contends that his fifteen-acre tract is now, for all practical purposes, landlocked. The Appellees questions that assertion, emphasizing that a portion of the total 150 acres owned by the Appellant borders County Road 14/3, which could also provide access to the adjoining fifteen-acre tract from the east.

Subsequent to discovery, the Appellees filed a joint motion for summary judgment on November 24, 1999. The Appellant filed a December 16, 1999, memorandum in opposition to the motion for summary judgment, alleging that genuine issues of material fact existed and outlining those issues. The lower court conducted a hearing on the motion for summary judgment on December 21, 1999, and granted summary judgment against the Appellant by order dated January 5, 2000. The lower court held that the applicable two-year statute of limitations had expired and that even if the statute did not render the Appellant's case moot, he had been divested of the easement by adverse possession since APC had used the properties for ten years adversely to the Appellant's interests.

On January 26, 2000, the Appellant filed a "Motion to Reconsider and/or Clarify" the January 5, 2000, order. There is disagreement among the parties regarding whether this motion should be characterized as a Rule 60(b) motion, thereby failing to toll the running of the appeal period to this Court, or a Rule 59(e) motion, tolling the running of the appeal period.⁵ The Appellant contends that he intended his motion for reconsideration as a Rule 59(e) motion and filed it within ten business days of his receipt of the January 5, 2000, order. The lower court denied the motion to reconsider by order entered September 18, 2000, and the Appellant filed his petition for appeal of that denial with this Court on January 16, 2001.

II. Motions Under Rule 59(e) and Rule 60(b)

The appellate standard of review in this matter is dependent upon resolution of the issue of whether the Appellant's January 26, 2000, "Motion to Reconsider and/or Clarify" is deemed a Rule 60(b) motion or a Rule 59(e) motion.⁶ In syllabus point one of Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974), this Court explained that "[a] motion made pursuant to Rule 60(b), W.Va.R.C.P., does not toll the running of the appeal time of eight months [now four months] provided by West Virginia Code, Chapter 58, Article 5, Section 4, as amended." However, the filing of a Rule 59(e) motion "suspend[s] the running of the time for appeal, and that time does not begin to run until the entry of an order deciding the issues raised by the motion." Riffe v. Armstrong, 197 W.Va. 626, 636, 477 S.E.2d 535, 545 (1996), holding modified on other grounds, Moats v. Preston County Comm'n, 206 W.Va. 8, 521 S.E.2d 180 (1999)

.

This Court articulated the distinction between a Rule 59(e) and a Rule 60(b) motion in syllabus point three of Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d 600 (1992), as follows: "A motion which would otherwise qualify as a Rule 59(e) motion that is not filed and served within ten days of the entry of judgment is a Rule 60(b) motion regardless of how styled and does not toll the four month appeal period for appeal to this court." See also Rose v. Thomas Memorial Hosp. Foundation, Inc., 208 W.Va. 406, 541 S.E.2d 1 (2000)

; State ex rel. McDowell County Sheriff's Dep't v. Stephens, 192 W.Va. 341, 452 S.E.2d 432 (1994). Likewise, this Court explained as follows in syllabus point two of Powderidge Unit Owners Association v. Highland Properties, Ltd., 196 W.Va. 692, 474 S.E.2d 872 (1996):

When a party filing a motion for reconsideration does not indicate under which West Virginia Rule of Civil Procedure it is filing the motion, the motion will be considered to be either a Rule 59(e) motion to alter or amend a judgment or a Rule 60(b) motion for relief from a judgment order. If the motion is

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