Monk v. Gillenwater, 10704
| Decision Date | 31 May 1955 |
| Docket Number | No. 10704,10704 |
| Citation | 87 S.E.2d 537,141 W.Va. 27 |
| Court | West Virginia Supreme Court |
| Parties | John W. MONK et al. v. William Harve GILLENWATER et al. |
Syllabus by the Court
1. Mere user will not make a road a public road, even though such use is with the knowledge and concession of the owner, in the absence of some action constituting an acceptance of the road as such by public authorities.
2. 'The open, continuous and uninterrupted use of a road over the land of another, under bona fide claim of right, and without objection from the owner, for a period of ten years, creates in the user of such road a right by prescription to the continued use thereof.' Pt. 2, Syl., Post v. Wallace, 119 W.Va. 132 .
3. A right of way acquired by prescription for one purpose cannot be broadened or diverted, and its character and extent are determined by the use made of it during the period of prescription.
4. Where a right of way over the land of another is clear, and the decree of a court establishing such way is defective as to its description or location on the ground, this Court will remand the cause for the purpose of legally carrying into effect the right so established.
W. Robert Carr, Clark M. Thornton, Princeton, for appellants.
H. F. Day, Princeton, for appellees.
Plaintiffs filed their bill of complaint in the Circuit Court of Mercer County asking that defendants be enjoined from maintaining a gate across the road which leads from their homes through defendants' land to the main highway, and from interfering in any way with their continued use of the road as a means of ingress and egress, alleging that such road is a part of the old Raleigh-Wythe Turnpike, and that plaintiffs have used it continuously, openly, visibly and adversely, under claim and color of right, since prior to 1907, until interrupted by the defendants in 1953. Plaintiffs also allege that their properties and the property of the defendants derive from a common source of title, and, though admitting that the road continues on in the other direction to meet the main highway, say that that portion is impassable, and that the way over defendants' land is their only means of access to and from their property.
The court awarded a temporary injunction, the defendants answered denying the material averments of plaintiffs' bill, and, after the taking of testimony, the court entered its decree on May 21, 1954, perpetuating such injunction, from which decree this Court granted an appeal on November 8, 1954.
In support of their various allegations, the plaintiffs offered as exhibits a deed from Robert Brooke, Governor of Virginia, to Wilson Cary Nicholas, dated June 25, 1795, for 500,000 acres, which includes the area in question, apparently for the purpose of showing derivation from a common source; a deed, 1901, from Burgess to Wimmer, defendants remote predecessor in title, which recites: 'Beginning at the Turnpike road on the top of Brushy Ridge, thence down said road south direction to a hickory inside of the road, thence a straight line to McClaugherty's line, leaving out the old road, thence * * *.'; a deed, 1914, from Wimmer to Woolwine, defendant's predecessor in title, embracing 75 acres, reciting: 'Beginning on a black jack on red oak on the west side of the Raleigh Turnpike; thence a south west course with said turnpike crossing a branch to a double chestnut saplings at the intersection of a farm road; * * *.' a deed, 1945, Woolwine to Gillenwater, embracing 25 acres, reciting: '* * * to a stake at the foot of the bank by a fence and on the West side of the old Raleigh and Gracen Turnpike; thence running along the side of said Pike * * *.'; a deed, 1946, from Gillespie to Hubbard, one of the plaintiffs, reciting: 'Beginning at the intersection of the public road * * *.'; and a deed, 1948, from Gillespie to Collins, one of the plaintiffs, which recites: 'Beginning at 2 white oaks at the edge of a country road which is used as a public road by those desiring to do so; * * *.'
Plaintiffs also offered the testimony of eleven witnesses who testified substantially that: the road has been continually used by the public for from 29 to 60 years; that 13 families, including 24 school children, live along the road and use it for ingress and egress; that the road is not part of the old turnpike; that the road originally went above its present location, then was changed and went across the land of defendants; that the road originally went to the home of one Thompson; and that draw bars and gates were placed across the road at one time, whereupon, suit was threatened, and that the parties agreed that plaintiffs' predecessors could use the road on condition that the gates be kept closed.
Defendants' witnesses testified also to the effect that the original road was above the present location; that a number of families use the road; and that there has been considerable interference with their use of the road. Woolwine, defendants' predecessor in title, testified that at the time he purchased the property (1914), only a small path led through the woods, and that he cleared the present roadway; that 27 years previously, he had objected to the public use of the road, and had put in drawbars, and later permitted some of the parties to build gates; that gates or drawbars had been across the road for approximately 37 years; that, at one time, suit was threatened, and a compromise effected whereby he permitted the people to pass through on condition that the gates would be kept closed; and that those who passed through passed with his consent on that condition.
As heretofore stated, the trial court found that the 'allegations of the bill are fully sustained and that the plaintiffs have acquired a permanent right of way across the lands of the defendant', and perpetuated the injunction restraining defendants from obstructing the road or interfering in anyway with its use.
The law applicable to the issues raised upon this appeal is well settled in this jurisdiction. In Talbott v. King, 32 W.Va. 6, 9 S.E. 48, this Court held that the mere user of a road will not make it a...
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