Nutter v. Kerby

• Decision Date: 01 November 1938
• Docket Number: (No. 8743)
• Citation: 120 W.Va. 532
• Parties: Commodore B. Nutter v. James Hollice Kerby
• Court: West Virginia Supreme Court

120 W.Va. 532

Commodore B. Nutter

v.James Hollice Kerby

(No. 8743)

Supreme Court of Appeals of West Virginia.

Submitted September 28, 1938.

Decided November 1, 1938.

. Easements

The precise location of an easement sought to be established should be described either by metes and bounds or in some other definite way. If a right of way is claimed by prescription, the claimant should allege and prove that over the prescriptive period, without interruption, he (or a predecessor in title) used the way with such open frequency as to notify its owner of the purpose to subject his land to the use. If a right of way is claimed by necessity, the claimant should allege and prove that his land has no practicable access to a public road except over land which at one time was parcel of a tract that included his land.

2. Appeal and Ebboe

a cause not sufficiently developed in proof, will not be remanded by this court for further development, unless the record discloses strong probability of evidence available therefor.

Appeal from Circuit Court, Calhoun County.

Suit by Commodore B. Nutter against James Hollice Kerby to establish an easement. To review an adverse decree, the plaintiff appeals.

Modified and Affirmed.

Matheivs & Reed and S. A. Powell, for appellant. S. P. Bell, for appellee.

Hatcher, Judge:

This is a suit to establish an easement. Plaintiff's bill alleges that in Lee District of Calhoun County, he owns and resides upon a tract of 64 acres, off the main highway; that defendant owns an adjoining tract of 29 acres on the highway; that for ingress and egress between plaintiff's tract and the highway, persons "are required to pass over the land of defendant"; that leading from plaintiff's land over defendant's to the highway "is a well denned (private) roadway", which for fifty years has been used by persons and vehicles as a pass-way between plaintiff's land and the highway; that "free use of said roadway for the passage of cars, trucks and other wheeled vehicles by plaintiff and at plaintiff's direction is necessary to his continued residence on said land"; and that defendant has attempted to interfere with that use by signing and keeping posted on the roadway since November 18, 1936, the following notice: "I hereby notify all parties not to trespass through my premises with cars and trucks." Defendant! demurred and answered. His answer admits the existence of "a defined roadway" over his land, and alleges that he and his predecessors in title have "at rare and infrequent" intervals permitted persons to use it; but denies that the use has been prescriptive, or that "free use" of the roadway is necessary or requisite to plaintiff's continued residence on his land, or that "by the posting of said notice persons who wish to reach plaintiff's home by said roadway are unable to do the same so that said plaintiff is unable to receive delivery of such things as cattle, feed, and the necessities of life for his family and his home ordered to be delivered at plaintiff's direction." Proof was taken by plaintiff; none by defendant. The circuit court, without passing on the demurrer, dismissed plaintiff's bill.

The proof shows that for a period of at least thirty- seven years, a narrow dirt road across defendant's land has been used by the owners of the 64-aere tract without let or hindrance, and has been used likewise by third persons, except in a few instances between 1920 and November 18, 1936 (when the notice was posted) where permission was granted or denied by defendant. But the extent of the user is not shown. The testimony of plaintiff himself, who has lived on the 64-acre tract continuously since 1918 (except during part of one winter), was simply that "at various times" during his entire occupancy of the tract, he had used the way over defendant's land vehicularly, and personally had never asked defendant's permission nor been denied it. Plaintiff testified further that to reach his home by car or truck from the highway, it was "necessary * * * to use this roadway"; that he had no car or truck himself, but sometimes hired hauling done by such vehicles; and that while he did not interpret the posted notice to apply to himself personally, he took it to apply to the cars or trucks in his hire, though he narrated no such application by defendant since the notice was posted.

The precise location of an easement sought to be established should be described either by metes and bounds, or in some other definite way. Fox v. Pierce, 50 Mich. 500, 15 N. W. 880; 19 C. J., Easements, sec. 267. If a...