Reger v. Wiest
| Decision Date | 19 December 1983 |
| Docket Number | No. 15719,15719 |
| Citation | 310 S.E.2d 499,172 W.Va. 738 |
| Court | West Virginia Supreme Court |
| Parties | James M. REGER, et al. v. Joseph E. WIEST, et al. |
Syllabus by the Court
1. "When lands are laid off into lots, streets, and alleys, and a map plat thereof is made, all lots sold and conveyed by reference thereto, without reservation, carry with them, as appurtenant thereto, the right to the use of the easement in such streets and alleys necessary to the enjoyment and value of such lots." Syl. pt. 2, Cook v. Totten, 49 W.Va. 177, 38 S.E. 491 (1901).
2. "Generally there are but three methods by which the public may acquire a valid right to use land owned by another as and for a public road or highway: (1) By condemnation proceeding, with compensation to the property owner for the damage resulting from such forceful taking; (2) by continuous and adverse user by the public during the statutory period, accompanied by some official recognition thereof as a public road by the county court, as by work done on it by a supervisor acting by appointment of that tribunal; (3) by the owner's dedication of the land to the public use, or by his consent to such use given in writing, and acceptance of the dedication by the proper authorities." Syl. pt. 4, Ryan v. The County Court of Monongalia County, 86 W.Va. 40, 102 S.E. 731 (1920).
3. "One who seeks to assert title to a tract of land under the doctrine of adverse possession must prove each of the following elements for the requisite statutory period: (1) That he has held the tract adversely or hostilely; (2) That the possession has been actual; (3) That it has been open and notorious (sometimes stated in the cases as visible and notorious); (4) That possession has been exclusive; (5) That possession has been continuous; (6) That possession has been under claim of title or color of title." Syllabus Point 3, Somon v. Murphy Fabrication & Erection Co., 160 W.Va. 84, 232 S.E.2d 524 (1977).
Terry D. Reed, Hymes & Coonts, Buckhannon, for appellants.
J. Burton Hunter, III, Buckhannon, Robert M. Morris, Weston, for appellees.
This is an appeal by Joseph and Jeanie Wiest, the defendants below, from a final order of the Circuit Court of Upshur County entered on July 22, 1983. The court ruled that James and Ruth Reger, the plaintiffs, had acquired an easement in and right to use a way known as Mountain Vista Drive. The court also ruled that the defendants had not acquired any portion of that way through adverse possession and that the public had a right to use a private way heretofore granted to the Wiests' predecessors in interest and claimed exclusively by the Wiests. After examining the record of this case, we conclude that the trial court erred in part.
The Wiests and the Regers are both owners of lots in a subdivision located in Buckhannon, Upshur County. The lots are located on the top of a hill and are shown and delineated on a plat of the subdivision filed in the Upshur County Clerk's Office in 1891. That plat indicates that a public way designated as Mountain Vista Drive or Mountain Vista Street surrounds the top of the hill and the lots owned by the Wiests and the Regers. According to the record before us, the public way designated as Mountain Vista Drive was never actually developed and it now exists simply as a platted or paper street.
The Wiests own a home and live on their property at the top of the hill. Their predecessors in interest acquired by express grant from the owner of an adjoining tract of land, a private right of way to their property. The right of way does not follow Mountain Vista Drive as delineated upon the plat. Instead, it follows a wholly different course that crosses the platted drive at one point.
In the early 1960's the Wiests' predecessors in interest planted a grove of pine trees on their property. The grove extended onto a portion of Mountain Vista Drive as shown on the plat of the subdivision. The record, as made before the trial court, clearly indicates that the trees have occupied that portion of the street as designated for over ten years.
In 1980 the Regers filed suit to enjoin the Wiests from blocking or denying them use of Mountain Vista Drive as designated on the plat of the subdivision. They alleged that the street provided the only reasonable means of ingress and egress to and from their property. They did not seek to use the private access road which the Wiests' predecessors in interest had acquired by specific grant. In their answer to the complaint, the Wiests alleged that they had acquired title by adverse possession to that portion of Mountain Vista Drive occupied by the pine grove.
After the filing of the pleadings, a trial was conducted before the Circuit Court of Upshur County sitting without a jury. Although it was not an issue in the pleadings or at the beginning of the trial, evidence was adduced regarding the private drive or access road as well as the platted Mountain Vista Drive. The Regers apparently alleged that the Wiests' private access road had become a public way. At the conclusion of the trial, the court ruled in favor of the Regers and the Wiests appealed.
The first question in this case is whether the court was correct in ruling that the access road in question is a public way. The evidence on this point at trial indicated that the access road is not a public way. The defendant Jeanie Wiest, testified that she and her husband had purchased the access road as a right of way when they purchased their property. The only other persons in the subdivision with the right to use the road were neighbors of the Wiests, the Pipers. However, the City Water Board also used the road under an agreement with the Wiests' predecessors in interest. Dr. Wiest testified that the road was not open to the public, that it was narrow and...
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