National Lead Company v. Kanawha Block Company

Decision Date17 July 1968
Docket NumberCiv. A. No. 2473.
Citation288 F. Supp. 357
CourtU.S. District Court — Southern District of West Virginia
PartiesNATIONAL LEAD COMPANY, a corporation created and existing under the laws of the State of New Jersey, Plaintiff, v. KANAWHA BLOCK COMPANY, a corporation created and existing under the laws of the State of West Virginia, Defendant.

James K. Brown, Jackson, Kelly, Holt & O'Farrell, Charleston, W. Va., for plaintiff.

E. Glenn Robinson, McClintic, James, Wise & Robinson, Charleston, W. Va., for defendant.

MEMORANDUM OPINION

FIELD, Chief Judge.

This diversity action was instituted by the plaintiff, National Lead Company, a New Jersey corporation (hereinafter referred to as "National"), against the defendant, Kanawha Block Company, a West Virginia corporation (hereinafter referred to as "Kanawha"), and involves a controversy relative to an easement or right of way granted by the plaintiff to the defendant incident to the conveyance of certain real estate. The plaintiff seeks an adjudication that the easement has been terminated in accordance with the provisions of the deed which granted the right of way; an injunction against the further use of the right of way by the defendant; and an order directing the defendant to reconvey the easement or right of way to the plaintiff as provided in said deed. Additionally, the plaintiff asks that the defendant be enjoined from the further use of the easement to serve property owned by the plaintiff but to which such easement is not appurtenant. The case has been submitted to the Court upon the pleadings, certain interrogatories and depositions, a stipulation of facts and issues entered into between counsel for the parties under date of August 20, 1963, and certain evidence taken in open court.

Based upon the foregoing, the facts are found to be and stated as follows. Prior to February 6, 1946, National was the owner of a tract of land of approximately 11 acres situate on the south bank of the Kanawha River opposite the City of Charleston. The only access to this tract from a public road was over certain other property of National located to the northwest of the 11-acre tract.

Under date of February 6, 1946, National conveyed to Kanawha a portion of the 11-acre tract, consisting of approximately 3.9 acres. The tract so conveyed was then unimproved and was acquired by Kanawha for the primary purpose of constructing and operating a plant and other facilities for the manufacture and sale of cinder and concrete blocks and other building materials, and National was fully aware of this proposed use of the property by Kanawha. Kanawha has utilized the property for that purpose up to the present time.

This deed contains the following provisions bearing upon the issues presented in this litigation:

"* * * The party of the second part (Kanawha) shall have the right to build, maintain and use a road eighteen feet wide * * * over and through lands of the party of the first part (National) * * *. Said road shall be a private road, established and used for the exclusive benefit of the said lands of the party of the first part, and the land of the party of the second part hereby conveyed, and may be used in common by the parties hereto, their successors, assigns and tenants, and by the officers, employees, customers, invitees, visitors and any others doing work for or having business with said parties hereto, their successors, assigns and tenants. * * *.
* * * * * *
"The party of the first part (National) shall have the right at its expense at any time to relocate on its property, said private road from "A" to "C" or any part thereof, so long as the party of the second part (Kanawha) is always given a reasonably direct route for ingress to and egress from its said property.
* * * * * *
"In the event a public road is constructed into or through the property hereby conveyed, all the rights and liabilities of the party of the second part in respect of said private road shall, upon the completion of such public road, cease and terminate and such rights shall revert to the party of the first part, and upon the request of the party of the first part, the party of the second part shall grant and assign to the party of the first part, all its rights, interest and title in and to said private road and every part thereof."

The deed further provided that these covenants and agreements, among others, "are hereby made covenants running with the land hereby conveyed, and with the adjoining lands owned by the party of the first part * * *."

On July 23, 1953, Capitol Block Company, a corporation, conveyed to Kanawha a tract of land containing approximately 2.5 acres which tract was contiguous to the 3.9-acre tract along the entire southeast boundary of the latter tract. This 2.5 acres had originally been a portion of property owned by B. Preiser Company and had been conveyed by Preiser to Capitol by deed dated January 2, 1953.

After acquiring the 2.5-acre tract, Kanawha made certain improvements thereon and proceeded to fill the area with aggregates, broken blocks and waste materials to bring the level of the tract up to the adjacent 3.9 acres. Much of this fill material was transported to the property by trucks which used the private right of way in delivering such material. As the filling of this tract progressed Kanawha used the filled ground for the storage of manufactured blocks as well as raw materials. However, no part of Kanawha's manufacturing plant, office building, weighing scales or sales facilities is located upon the 2.5-acre tract.

In 1956 representatives of the State Road Commission of West Virginia initiated negotiations for acquisition of property along the south side of the Kanawha River extending from a point which is north of the Chesapeake & Ohio Railway station to the Patrick Street bridge. The purpose of the acquisition of this property was the construction of a highway facility identified as State Project No. 2151, Federal Aid Project No. U.317(3). The State Road Commission acting pursuant to the provisions and authority of Chapter 17, Article 4 of the West Virginia Code, designated the project as a controlled-access highway facility. Shortly after January 5, 1956, representatives of Kanawha and National conferred to discuss the impact of this controlled-access highway upon their respective lands, and thereafter representatives of both corporations conferred with personnel of the State Road Commission in regard to the possibility of obtaining access to the proposed highway at a point near the common division line of their respective lands. The agents of the State Road Commission advised both National and Kanawha that the Commission would not permit access to the highway as requested by them.

On January 22, 1957, Kanawha executed a deed conveying to the State of West Virginia a portion of Kanawha's property for construction of the highway. This deed was placed in escrow pending performance by the State of certain obligations thereunder, and was ultimately delivered to the State and recorded on December 23, 1959. The deed released the State from any and all claims for damages to the residue of Kanawha's lands and improvements. However, the deed did contain a reservation of certain rights to Kanawha with respect to the private roadway in the following language:

"(3) The perpetual right to maintain a roadway over and upon a portion of the party of the second part's right of way between Station 26+67.41 and Station 29+30.55, said roadway to occupy only that portion of the party of the second part's right of way lying and being south of a gravity type retaining wall to be constructed by the party of the second part, between the aforementioned stations."

By deed dated May 31, 1958, recorded on December 30, 1958, National also conveyed to the State of West Virginia a portion of its property for the purpose of the construction of the controlled-access highway. The deed indicated that the conveyance was made by National without receiving any payment or consideration therefor and was made as a gift or contribution to the welfare of the community. The deed further stated that the property so conveyed was to be used for a controlled-access facility with no rights of access thereto by abutting owners and National released all easements with respect to the property including rights of vehicular and pedestrian access. By the terms of the deed, National reserved various rights and easements including the following:

"15. The perpetual right to use and maintain a private road between Station 26+67.41 and Station 29+30.55, the said road lying and being south of a gravity type retaining wall constructed by the party of the second part between the aforementioned stations."

Kanawha's deed to the State of West Virginia did not provide for nor reserve to Kanawha any right or rights of access to the proposed highway, but did reserve various rights and easements for purposes of drainage and loading and docking facilities on the Kanawha River. The deed provided that there was attached thereto and made a part thereof Sheets Nos. 13 and 14 of Project U.317 (3) "* * * showing the approximate location of the drains, sewers, underpass and other facilities above mentioned, * * *." Sheet No. 14 shows as a part of the Project what is known as the Danner Hollow Road, located between the property of Kanawha and B. Preiser Company, leading from the expressway to a crossing over the Chesapeake & Ohio Railway tracks. This Sheet No. 14 shows the location of a driveway or apron leading into Kanawha's property between Stations 2+97.97 and 3+21.97 with a notation thereon "Access Permitted Between These Stations for Future Appr." Between these two stations the State of West Virginia constructed a concrete "apron" leading up to Kanawha's property. However, this "apron" was not constructed at the request of Kanawha nor has it ever been used by Kanawha.

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