Rhoton v. Cox
| Decision Date | 21 April 1947 |
| Parties | RHOTON. v. ROLLINS et al. COX v. SAME. |
| Court | Virginia Supreme Court |
Appeal from Circuit Court, Scott County; E. T. Carter, Judge.
Suits by Floyd M. Rhoton and by Myrtle Mitchell Cox against W. J. Rollins and Rufus Rollins and others requiring named defendants to establish a right of way through certain premises and to enjoin named defendants from obstructing a road, wherein defendants filed a cross-bill. From an adverse decree, plaintiffs appeal.
Reversed.
Before HOLT, C. J., and HUDGINS, GREGORY, EGGLESTON, SPRATLEY, and BUCHANAN, JJ.
Richmond Bond, of Gate City, John R. Todd, Jr., of Kingsport, Tenn.; Quillen & Carter, of Gate City, and Burns & Lively, of Lebanon, for appellants.
E. Hagan Richmond, of Gate City, for appellees
By deed dated October 2, 1939, Rollins and others conveyed to Rhoton a tract of 243.9 acres of land in Scott county, referred to herein as the Rhoton land, for a consideration of $4500, together with a right of way in this language:
"The said parties of the first part do hereby convey to the said party of the second part a right of way over the land of W. J. Rollins and Esther J. Rollins where theroad now is to the public road, but it is only to be used by the said party of the second part or his successors in title when they are prevented in any way from using the right of way which they now use over the W. H. Mitchell estate."
These appeals present the question whether Rhoton may use the right of way granted by this deed or must use one over the Mitchell estate.
The land so conveyed is adjoined on the east by another tract owned by Rollins, herein called the Rollins land, and the public road runs along the eastern boundary of this Rollins land; that is, the Rollins land lies between the Rhoton land and the public road. West of the Rhoton land, and lying between it and the public road on that side, is the Mitchell land, now owned by Myrtle Mitchell Cox. Both of these roads lead to Rye Cove, to the south of the lands mentioned. The Rye Cove road approaches these lands from the south, divides a short distance southeast of them, and one fork goes to the right along the eastern border of the Rollins land, and the other fork goes to the left through the Mitchell land to the south and west of the Rhoton land.
Rollins bought the Rhoton land in 1938. He or his wife had then owned the Rollins tract for several years. There had been a road through the Rollins tract used by the former owners of the Rhoton land for access to the public road on the east, but it had been washed out or filled up by a storm in 1927. After Rollins bought the Rhoton land in 1938, he built another road over his own land to connect the Rhoton land with the public road. At the time of the sale to Rhoton there was also a road from the Rhoton land through the Mitchell land to the public road on that side.
After his purchase, Rhoton used the road through the Rollins tract, but not exclusively, sometimes going in and out over the Mitchell land. Rollins said he asked Rhoton two or three times not to use the road through his land "so as not to forfeit our rights" over the Mitchell land, Rhoton testified that he had regularly traveled over the Rollins tract without objection by Rollins, for about five years and until some trouble arose between him and Rollins. In any event, about September, 1943, Rollins locked the gate on the road through his land and would not allow Rhoton to pass through. About the same time Myrtle Mitchell Cox gave written notice to Rhoton that he had no legal right of way over her land and demanded that he stop trespassing thereon. Rhoton consulted an attorney who advised him he did not have any right over the Mitchell land, and in February, 1944, he brought suit to compel Rollins to unlock the gate.
In his bill Rhoton said he did not know whether he had any right of way over the Mitchell land, but if he did it was impassable. He filed an amended bill at the same time demanding that Rollins "open up, establish and determine a right of way through the said Mitchell or Cox premises; and have the validity thereof determined and ascertained." Rollins filed an answer and cross-bill claiming that Rhoton had no right of way over his land unless he was legally prevented from using the road through the Mitchell land; that in fact Rhoton had two different rights of way over the Mitchell land, by grant, and one of them had been used exclusively and continuously by the owners of the Rhoton land for more than fifty years; that there was also a right of way over the Mitchell land by necessity, and that Myrtle Mitchell Cox had no right to interfere with the use of these rights of way. The cross-bill prayed that Myrtle Mitchell Cox be made a party defendant thereto, and that a right of way or rights of way from the Rhoton land over the Mitchell land "be ascertained and determined."
Both Rhoton and Myrtle Mitchell Cox demurred to the cross-bill, on the ground that Rollins had no right to make Mrs. Cox a party, and Rhoton on the further ground that the limitation on the use of the right of way in the deed from Rollins to Rhoton was void for uncertainty. The court overruled the demurrer and that action is assigned as error by both appellants.
It was not error to overrule the demurrers. The situation was that Rhoton claimed a right of way over Rollins' land. Rollins said that under the terms of the grant Rhoton could not use that right ofway because he had a right of way over the land of Mrs. Cox. Rhoton asserted that Mrs. Cox denied that he had such right and had stopped him, and that if he did have such right it was the duty of Rollins to establish it. To avoid circuity of action, it was proper to bring Mrs. Cox in and determine the matter in one suit.
It is true, as a general rule, that it is not permissible for a cross-bill to introduce new parties, or new and distinct matter not germane to the matter embraced in the original suit. Formerly, if new parties were essential to doing complete justice, the plaintiff might be compelled to amend and bring them in. Lile, Eq.Pl. & Pr, sec. 167. Since the enactment of section 6102 of the Code (Michie), when such non-joinder is made to appear by affidavit or otherwise, new parties may be added as the ends of justice may require. "The purpose of the statute was to provide a simple method for joining as codefendant a necessary party." Hogan v. Miller, 156 Va. 166, 157 S.E. 540, 542.
Derbyshire v. Jones, 94 Va. 140, 26 S.E. 416, applies the general rule, but refers to the opinion of Chancellor Kent in Underhill v. Van Cortlandt, 2 Johns.Ch. 339, 355, and states that the intimate connection between the matters set up in the cross-bill there under consideration and the subject of the original bill was obvious, and adds : "It is true that new parties were made, but their presence was, in the judgment of the court, necessary, in order to give the defendants the opportunity to make full defense to the demand of the plaintiffs; and it may be that the rule that the cross bill shall not introduce new parties may, with propriety, be relaxed in those cases where it is made to appear by evidence arising from the pleadings and proofs between the plaintiffs and defendants that the presence of another party is necessary in order that the defense to the plaintiffs' demand may be complete."
There was intimate connection here between the matter of the original and amended bills and the subject of the crossbill; in fact, the amended bill demanded that Rollins open up, establish and determine a right of way through the land of Mrs. Cox. This he could not do except by bringing Mrs. Cox before the court, either in this suit or an independent suit. It would have been contrary to the objectives of modern pleading to require Rollins to prove his defense against Rhoton and then to prove it all over again against Mrs. Cox. No prejudice resulted to anybody from bringing Mrs. Cox in and having the matter adjudicated in one suit.
Rhoton and Mrs. Cox then filed answers. Depositions were taken, and by the decree appealed from by both Rhoton and Mrs. Cox, the circuit court held that Rhoton "has the legal right" to use the right of way from his land through the Cox (Mitchell) land to the public highway, which right of way "shall be located as it was formerly located, used and traveled by the said Rhoton and those under whom he claims title prior to the purchase of said lands by W. J. Rollins and others;" and "that so long, and so long only, as the complainant, Floyd M. Rhoton, has the legal right to the use of the right-of-way from his lands over said Cox's said lands to said public highway as herein above provided and decreed, and so long as said right continues to use said right-of-way over the said Cox lands to the said public road as herein decreed, the complainant, Floyd M. Rhoton, has no right to use and travel over the road or right-of-way provided for in the deed from W. J. Rollins and others to the said Floyd M. Rhoton, bearing date October 2nd, 1939, for his use and benefit." The injunction previously granted, restraining Rollins from obstructing the road over his land, was thereupon dissolved.
By the additional assignments of error the appellants assert that the court committed error, (1) in holding that the Rollins deed did not grant to Rhoton a right of way over the Rollins land so long as Rhoton had "a legal right" to travel over the Cox land; and (2) in holding that Rhoton had a legal right to use the right of way through the Cox land.
The contention of Rhoton is that the words "prevented in any way, " as used in the deed from Rollins, should be construed to mean that he had a right to use the Rollins right of way when he was pre-vented "by natural and physical causes, act of God, acts of the servient tenant of the Cox land, or for any other cause, " from using the way through the Mitchell land; and that the notice given by Mrs. Cox was...
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