Nomar v. Ballard, CC765

• Decision Date: 21 July 1950
• Docket Number: No. CC765,CC765
• Citation: 60 S.E.2d 710,134 W.Va. 492
• Court: West Virginia Supreme Court
• Parties: NOMAR et al. v. BALLARD et al.

Page 710

60 S.E.2d 710

134 W.Va. 492

NOMAR et al. v. BALLARD et al.

No. CC765.

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1950.

Decided May 31, 1950.

Dissenting Opinion July 21, 1950.

Syllabus by the Court

An implied grant or reservation of an easement for light and air, growing out of the conveyance of land improved at the time by the erection of buildings thereon creating a situation in respect to light and air which is open and obvious to the parties to such conveyance, will be enforced only in cases of real necessity. Such necessity will be determined on the facts and circumstances of the particular situation presented.

Lon H. Barringer, Charleston, for plaintiffs.

Simms & Simms, Philip R. Simms, Charleston, for defendants.

FOX, Judge.

Prior to the year 1928, one Lizzie Coles became the owner of Lots Nos. 27 and 28 in Block C-6 in the Town of South Charleston, West Virginia, said lots lying contiguous, each fronting twenty-five feet on Seventh Avenue in said town, and extending back one hundred and thirty feet to an alley. Lot No. 27 was first acquired by the said Lizzie Coles, but a three story building was constructed on Lot No. 28, prior to the year 1928, and prior to any improvements on Lot No. 27. This building extended from West to East, the first or ground floor of which was contemplated to be used for business purposes, and the second and third floors were arranged to be used as living apartments. Apparently, the said building had windows on the north and south sides thereof. The windows on the south side furnished light for a hallway by which entrance was had to the apartments on the second floor, and the apartments themselves were lighted by windows in the north wall of said building. The three story brick building so constructed on Lot No. 28 extended over on Lot No. 27, a distance of three inches, and the north wall thereof covered such three inches of Lot No. 27, and a part of Lot No. 28, which subsequently constituted the party wall hereinafter mentioned, and apparently recognized by all parties to this litigation. The record is in some confusion as to the width of this wall. Plaintiffs allege that the wall was six inches in width, and the briefs of the defendants contend that it was twelve inches in width; but, certainly, it is clear that the wall extended three inches on Lot No. 27, because in the various conveyances of said lot, the width conveyed is twenty-four feet and nine inches.

In 1928, Lizzie Coles erected a two story building on Lot No. 27, using the north wall of the three story building as the south wall of the new building thereby creating a party wall. The roof of said two story building, if extended to the party wall, was above the windows located in the north wall of the three story building, and would have covered the windows in the north side of said building. To avoid this result, the said Lizzie Coles, in constructing the building on Lot No. 27, cut what is called a well into the second floor of said building. This well is about four feet in width and extended below the line of the windows in the north wall of the three story building. The parties do not agree on the length of this well, but it was from forty to sixty feet. It furnished light and air to the second floor apartments in the building located on Lot No. 28.

Lizzie Coles died intestate in the year 1934, leaving a husband and children surviving her. On January 25, 1935, William Coles, widower, and the children and heirs at law of Lizzie Coles, conveyed to John W. Parris and Frank G. Parris all of Lot No. 27 of Block C-6, aforesaid, on which the two story building was erected in 1928, except a strip of three inches running the length of the lot on its south side. The portion of said lot so conveyed is described as beginning at a stake on Seventh Avenue on the division line between Lots Nos. 26 and 27 of Block C-6, thence with the line of Seventh Avenue and the front line of said Lot No. 27, a distance of twenty-four feet nine inches, to the center of the wall dividing the building of the property conveyed and the adjoining lot, designated party wall, and thence with the center of said party wall in a straight line one hundred and thirty feet to an alley, and thence with the rear of said Lot No. 27, a distance of twenty-four feet and nine inches to the division line between Lots Nos. 26 and 27, and thence with division line one hundred and thirty feet to the beginning and including one-half of said party wall, and described as being all of Lot No. 27, except the strip thereof of three inches in width, the entire length thereof and adjoining Lot No. 28 of said block. On December 22, 1943, Frank G. Parris conveyed his interest in said lot to John W. Parris; on March 13, 1946, John W. Parris conveyed said lot to McClung and Pettus Realty Corporation, a corporation; and on April 1, 1947, said McClung and Pettus Realty Corporation conveyed said lot to the defendant, Charles W. Ballard, Jr., who appears to be the present owner thereof, subject to a lease executed by him to the defendant, Ballard, Inc., a corporation. The several conveyances of Lot No. 27, with the exception aforesaid, followed the same description of the lot as that contained in the deed of January 25, 1935, aforesaid; and in none of said deeds is any reference made to the opening or well in the second story of the building located on said lot, which is the subject of this controversy. The conveyance is a direct and unrestricted conveyance of twenty-four feet and nine inches of Lot No. 27, as the same fronts on Seventh Avenue, and extends back one hundred and thirty feet to an alley, and makes the southerly line of which pass through the party wall between the building erected on Lot No. 28 and Lot No. 27.

By recitals from deeds exhibited with the record, it appears that there may have been one or more conveyances of interests in Lot No. 28 between the heirs of Lizzie Coles; but on March 28, 1941, Clarence H. Coles, and others, conveyed to Sam Wallace and Nellie Harlan Wallace, his wife, Lot No. 28 in Block C-6, and three inches of Lot No. 27, aforesaid. The description of the property so conveyed by said deed calls for beginning at Seventh Avenue where the dividing line between Lots Nos. 28 and 29 of Block C-6 intersects the line of said Avenue, and thence with the line of Seventh Avenue and the front line of Lots Nos. 28 and 27 of said Block, a distance of twenty-five feet and three inches, to the center of the party wall of the adjoining lot, and thence with the center of said party wall, a straight line one hundred and thirty feet to an alley, and thence with the line of said alley and the rear line of said Lots Nos. 27 and 28, a distance of twenty-five feet and three inches, to the division line between Lots Nos. 28 and 29, and with said line to the beginning, and described as being all of Lot No. 28, and a strip of three inches extending the entire length of said Lo No. 27 and adjoining the said Lot No. 28. On November 15 1945, Sam Wallace and Nellie Harlan Wallace, his wife, conveyed said Lot No. 28, and part of Lot No. 27, to the plaintiffs in this suit, Lillian Nomar and Mary Frances Aubrey, the description of the property conveyed being identical with that contained in the deed from Clarence H. Coles and others, to the grantors. In neither of these is any mention made of any claimed easement of light or air from the opening or well then located in the building constructed as aforesaid on Lot No. 27; and so it is that in none of the conveyances of either Lot No. 27 or Lot No. 28, or of any part of either, is any reference made to an easement for light and air, now asserted on the one hand, and denied on the other, and which is the subject matter of this litigation.

Shortly after the defendant, Charles W. Ballard, Jr., obtained title to the portion of Lot No. 27 conveyed to him, he notified plaintiffs of his intention to close the windows in the party wall between his building on Lot No. 27, and the building of the plaintiffs located on Lot No. 28. He subsequently did close said windows, and extended the roof of his building on Lot No. 27 to the party wall between his building and that of the plaintiffs, the result of which was to deprive plaintiffs of the light and air which they had theretofore enjoyed, in respect to the second floor apartments of their building, from the well or opening in the building located on Lot No. 27.

Plaintiffs instituted this suit in the Circuit Court of Kanawha County, West Virginia to obtain a mandatory injunction compelling the defendants to reopen said windows so closed by them, and, in effect, to restore the light and air which plaintiffs had enjoyed, through the use of the opening aforesaid, until the date the same was destroyed by the extension of the roof of defendants' building to the party wall aforesaid.

The case comes to us on an order entered by the Circuit Court of Kanawha County, on December 20, 1949, by which that court overruled a demurrer to plaintiffs' amended bill of complaint, and certified its rulings on said demurrer. The plaintiffs filed their original bill, setting up the facts we have attempted to state in this opinion. No factual questions are presented, first, because there is no ambiguity in the conveyances of the respective properties; and, second, for the purposes of this demurrer, the allegations of plaintiffs' amended bill are treated as true. In this connection it seems proper to quote two paragraphs of said bill, in which, referring to the opening or well in the building on Lot No. 27, it is alleged that: '* * * the aforesaid easement for light and air was recognized as necessary and was acquiesced in and was not interfered with in any way by the sundry holders, possessors and owners of the Ballard building down to the month of April, 1947; that the Ballard building and the land which it occupies was acquired by Charles W. Ballard, Jr....