Rogerson v. Shepherd.
| Decision Date | 22 November 1889 |
| Citation | 33 W.Va. 307 |
| Court | West Virginia Supreme Court |
| Parties | Rogerson v. Shepherd.*(Green, Judge, absent.) |
Right of Way Obstruction Injunction.
O., F., and H., being the owners of a large tract of land sell on the 1st day of March, 1856, two parcels of said land adjoining each other one to G., the other to K. The tract sold to G. is inaccessible to a public road, except by passing over the land sold to K., who is acting as the agent of O., F. and H. in selling portions of said large tract lying back of his, and also back of the tract sold G. K., with the assistance of G. and C, who also about that time purchased a tract of said land adjoining and back of the parcel sold to G., opened and located a road through the land of K., and a fence was built on each side thereof, under the direction of K., at the expense of O., F. and H., which road was used openly and publicly by G. and those claiming under him and others for thirty years. In 1863, S. became the owner by purchase of the tract originally purchased by K., and occupied the same, allowing the said road to be publicly used and remain open and unobstructed until the 1st of September, 1887, when he fenced it up, and opened another and different road through his land, and erected three gates across it. Held: (1) that G., or those claiming under him, had aright by injunction to compel S. to remove said obstruction, and restore to him or them an open way through said land of S.; (2) that if there has been an open and public useof an easement for more than twenty years, unexplained, it will be presumed to be under a claim of right, and adverse; (3) that where a party sells;wo adjoining tracts of laud from one of which there is access to a public highway only by passing over the other, that fact creates a right of way, of necessity; (4) that if a party has acquired an open and unobstructed right of way over land by publicly using the same in that manner, without objection, for more than twenty years, he thus acquires a right to the unobstructed use of said way.
J. B. McLane for appellant.
Ewing, Melvin $ Riley for appellee.
On the 21st clay of November, 1887, the appellant, James Rogerson, presented a bill in equity to a judge of the Circuit Court of Marshall county, praying an injunction to restrain the defendant, Isaac Shepherd therein named, from obstructing the private way leading from the plaintiff's farm through the farm of said Isaac Shepherd to the Waynesburg road, and that he be required to remove all gates, fences and other obstructions already placed over and upon the same by him, which injunction was awarded.
The controversy in this cause appears to have originated from the following state of facts: The plaintiff and defendant in said suit are the owners of adjoining tracts of land the plaintiff's tract containing sixty two acres and a fraction and the defendant's tract containing 150 acres which two tracts of land originally formed part of a tract containing about 2, 000 acres, which was conveyed by Andrew P. Woods, in April, 1854, to Samuel Ott, William Flemming, and C. W. Heiskell. It appears that on the 1st day of March, 1856, said Ott, Flemming, and Heiskell conveyed said sixty two acres, now owned by the appellee, Rogerson, to Lemuel L. Gardner; and on the same day said parties conveyed said tract of 150 acres now owned by appellant, to Charles Kemple; and said parties derived their title to their respective tracts through several mesne conveyances; and the land of the appellant, Isaac Shepherd, is so located that it lies between said tract of sixty two acres owned by appellee, and the Waynesburg road, a public highway leading from the city of Wheeling, in Ohio county, to Moundsville, in Marshall county; and, in order to get to said public road, it was necessary to pass through the lands aforesaid of appellant. The plaintiff, in his bill, alleged that this necessity was recognized, and a way was marked out and made over said land to said public road from the date of said deed down to within a few days before the filing of said bill; and that plaintiff, and those under'whom he claimed, had, since the date of said Gardner deed, traveled thereon with their horses, cattle and wagons, for all and any purpose, without leave or license, having enjoyed and claiming an open way, free from any obstruction whatever; and that the necessity for said way still continues; and that no other convenient way can be made, over which plaintiff could have ingress and egress to and from his said farm; and that he, and those under whom he claimed, had occupied and traveled over said way for more than thirty years last past; and that about the 1st day of November, 1887, the said Isaac Shepherd arbitrarily, unlawfully and against the plaintiff's consent changed, altered and re-located said road, obstructing and rendering the same impassable, and obstructing the new way made by him with no less than three gates, without any right whatever. The plaintiff also alleges that when the defendant, Isaac Shepherd, became the owner of said tract of land, on the 21st day of November, 1863, over which said way lies, the said road was then open, notorious, and adverse to the said Shepherd, and those under whom he claims, and so has remained in use by plaintiff, and those under whom he claims, until about the 1st day of November, 1887, when it was unlawfully obstructed by defendant and rendered impassable by building a fence across said road.
The defendant demurred to plaintiff's bill, and answered, denying the material allegations in said bill contained, and claimed that the road mentioned in said bill was laid out and made by defendant, and those under whom he claims, for his and their convenience, and for the use of the farm over which it passes, and not for the use of plaintiff, or those under whom he claimed, or any of then; that ever since he became the owner of said farm he has kept said road in repair, and under fence, when he desired it, and had frequently changed its location; and that plaintiff had only used the same by his permission; and that the new road made by him is a good one, and the gates can be conveniently opened and shut and are necessary to the protection of his farm.
A considerable number of depositions were taken in the cause by both plaintiff and defendant; and, the cause being submitted, the court decreed that the plaintiff "is entitled to the right of way from his farm over the lands of the defendant to the Waynesburg road, and that the defendant has no right to obstruct the same with fence, or gates, or otherwise," and perpetuated the injunction. From this decree the defendant applied for and obtained an appeal to this Court.
The first error relied on by the defendant is that the Circuit Court erred in not dismissing the suit upon the pleadings for want of equity; and, while the Court did not act formally upon the demurrer, yet, in the case of Hinchman v. Ballard, 7 W. Va. 152, it was held: "When a demurrer is filed to a bill, and the Court proceeds to adjudicate, and does adjudicate, the principles of the cause in favor of the plaintiff, without first acting pro forma upon the demurrer, it will be considered that the Court, in rendering the decree adjudicating the principles of the cause, considered the sufficiency of the bill, and substantially overruled the demurrer thereto; and this Court will not reverse the decree adjudicating the principles of the cause for this cause alone." The Circuit Court then, under this ruling, did overrule said demurrer and, we think, acted rightly in so doing. It is true the plaintiff had a remedy at law, to some extent; but the remedy was not complete and adequate, and the pursuit of his remedy at law to recover damages for a continuous obstruction and nuisance would lead to a multiplicity of suits, to avoid which is one of the principal grounds of equity.
The appellant in his brief, cites the case of Kemble v. Cresap, 26 W. Va. 603. In that case it is held: Now, the plaintiff, in his bill, sets forth that those occupying his land can have no other ingress or egress to and from the said farm of plaintiff, except over the land lying between him and the Waynesburg road, aforesaid. This allegation must be taken as true upon demurrer; and, taken in connection with the further allegation that the defendant had obstructed said way and rendered it impassable by fencing across the same, the facts constituting the injury complained of appear to be sufficiently set forth; and, if allowed to continue, the injury is certainly irreparable, as the open and unobstructed way to which he claims to be entitled by being used openly by himself, and those under whom he claims, for more than thirty years, is effectually closed against him.
Did the court below commit an error in not dismissing the plaintiffs bill upon the evidence?
Referring to the deposition of Alexander Kemple, who states that he is a son of Charles Kemple, who purchased the tract of land now owned by Isaac Shepherd from Ott, Flem-ming, and Heiskell, and the same through which the road in controversy runs, we find that, in answer to the eleventh question, in which he is asked, "How long have you known the road from the Rogerson farm to the Waynesburg road?" he replied: He further states that Charles Kemple located the road, and his purpose was to give a road to persons who purchased east of his tract. In the locating, there were Charles Kemple, Lemuel Gardner, both the McWhorters, and himself. Jimmy McWhorter first opened the lane, built the fences, and made the rails, and, in making the road, Lemuel Gardner worked some on it. He thinks George McCombs worked on it too,...
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